Common Law Duties

Cases

Lendrum -v- Clones Poultry Processors Ltd

[2008] IEHC 412

Peart J.

“The accident:

As I have stated, the accident giving rise to the present claim occurred at the rear of the defendant’s premises while the defendant was engaged in loading product into the back of a van belonging to the defendant company which was parked roughly opposite the rear entrances to the premises. The laneway on which the van was parked was part of the roadway which I have described. It is approximately 11 metres in width at that point, and the van in question was parked in a position opposite these entrances and against a low wall on the other side, meaning that in order to get to the van in this parked position on this occasion it was necessary to cross to the far side of the roadway. There is no evidence before me as to whether the defendant required the van to be parked on the far side of this roadway when being loaded, rather than on the near side, but that may be dictated by the fact that on the near side between two of the three entrances into and out of the back of the premises, there is a large green Portakabin which is used apparently as a canteen.

……………..

The plaintiff has given evidence that he was never given any instruction by his employer as to how to conduct himself safely in the lane when loading up a van with product. Neither was there any health and safety notice.

Robert Burke, an engineer, of Herr Engineering & Design, has given evidence in accordance with his report. He has stated that at the locus of this accident and in the area of the Enterprise Centre as a whole, there are no warning signs, speed limit warnings, or anything which would warn a car driver that care must be taken because of the presence of people working in the area, either at the entrance to the Centre or anywhere within it.

He is of the view that measures could and should have been taken by the plaintiff’s employer to warn passing motorists, in particular those who pass at the rear of its premises, to ensure as far as possible the safety of its employees who may be working there. These measures would include the designation of a particular area for loading up vans in that area, ensuring that the area was kept clear, the placing of appropriate signage to warn drivers to take care, the placing of a speed limit for cars of about 10 mph, the placing of speed ramps, as well as ensuring that the gate at the exit point onto Rosslea was at all times kept closed to prevent this route being taken as a short-cut for traffic to that road.

He is also of the view that the defendant should have provided high visibility clothing for its employees working in this rear laneway in order to increase the visibilityof those employees while working in this area. He is of the opinion that the failure to take such measures means that the plaintiff was required to work in an unsafe environment, and that the defendant’s failures in that regard constitute a breach or breaches of the Safety, Health and Welfare at Work (General Application) Regulations 1993.

When cross-examined by Eoghan Fitzsimons SC for the defendant, he accepted that there would also have been an onus on the plaintiff to take reasonable care for his own safety while working. In that regard Mr Fitzsimons suggests that the only reason that this accident happened was that the plaintiff “went on a frolic of his own” by wanting to observe the first vehicle as it proceeded past the van, and that this was not part of his work activity, and was simply a traffic accident at the back of the premises, especially since it occurred in “a public place”.

Joseph P. Osborne, a consulting engineer, who prepared a report for the defendant, gave evidence in accordance with that report. He disagrees that the measures suggested by Mr Burke would have prevented this accident from occurring, and opined that it was simply a traffic accident and unrelated to any defects in the safety of the workplace or system of work. He is of the view that the defendant company simply has the use of these premises and that it is the Enterprise Centre which has the responsibility for matters such as road signs and other warnings to drivers passing through. He also believes that any drivers passing through this way for a shortcut would be local people and would already be aware that there may be people working at the rear of this premises. He believes that there is no need to have any signage in the roadway for such drivers. In his report he states that the blame for this accident must rest with the driver of the car and to an extent the plaintiff, and that “it is difficult to know …… what Clones Poultry Processors could have done to avoid the accident”.

Conclusion on liability:

The first thing to be said is that there is no evidence before me in these proceedings that any complaint exists in relation to the manner in which this vehicle was being driven on the area at the rear of the defendant’s premises, either prior to or at the time of making contact with the plaintiff’s foot and causing him to fall to the ground. The plaintiff has said that he did not either hear or see the car before this happened. The claim being made is in these proceedings is only against the defendant company, the plaintiff’s employer for failing to provide a safe place of work and/or a safe system of work. There has been evidence in the case that a second set of proceedings has been commenced against the MIBI seeking damages for negligence by an untraced driver, but it has been agreed between the plaintiff’s solicitor and the MIBI that the present proceedings would be determined ahead of the latter.

The personal injury summons in the present case recites a large number of allegations of negligence in this regard, but it unnecessary to set them out in detail. They can all be conveniently dealt with as a claim related to a safe place of work and safe system of work.

Mr Fitzsimons has suggested that no warnings or high visibility clothing would have served any purpose in preventing this incident from occurring, and that the sole cause of the plaintiff’s injury was the plaintiff’s own action – one outside the course of his employment, by deciding to come away from the back of the van in order to watch the progress of the first car which was travelling at speed. He suggests that if the plaintiff had simply ignored that and continued to do his work at the back of the van in the normal way, this accident would not have happened. For this reason, he suggests that this accident did not occur during “the course of his employment”.

I believe that to be an unduly restrictive meaning to “in the course of employment”. The plaintiff’s work required him to work in this laneway in order to load up the defendant’s product into the delivery van, and the defendant must be taken to have been aware that drivers were in the regular habit of using this area as a shortcut to the other road. That means that the defendant must be taken to be aware that such traffic would on a regular basis pass the point where the delivery vans were parked. The plaintiff was at work on that occasion, and engaged upon his duties, albeit that for a moment or two he looked at a passing car. I do not think that such a brief moment when his mind was on something which was not strictly work-related is sufficient to take the accident outside “the course of his employment”.

In my view the defendant as employer was under a duty to take care not to expose the plaintiff to any danger at work which was reasonably capable of being anticipated, and this required them to take reasonable steps to ensure the plaintiff’s safety while at work in the lane. It seems to me that no steps whatsoever were taken in that regard. Nevertheless, it is also the case that some of the measures identified by Mr Burke as appropriate to have been taken would not have had any impact in preventing this particular accident. There is a lack of causation therefore in relation to some of these suggested measures.

However, I feel that a reasonable precaution to be taken by the defendant would have been to provide the plaintiff with a high visibility jacket for use while working in the laneway on which there would be passing cars on a regular and known basis. That would have made the plaintiff more visible to the driver of the car as he turned back to return to the back of the van.

In addition, the absence of warning signs of any kind will have contributed to the driver failing to be alerted to keep a lookout for men or women working at the rear of the premises.

On the other hand, while speed ramps may well be a good idea generally, and a reasonable precaution for the defendant to have in place outside their premises in this Enterprise Centre, their absence on this occasion is irrelevant to causation since there is no evidence that the car in question was travelling other than very slowly. If that were not the case, it is probable that the plaintiff would have heard the car, as he had heard the first car, and in addition it is unlikely that the driver would have simply been able to stop his car trapping the plaintiff’s foot in the process. The same comment applies to the erection of speed limit signs.

But I accept that in circumstances where the defendant’s employee is required to load up a van with its product at the rear of the premises, and in an area where traffic is known to pass, it would be a reasonable measure to have a clearly designated and safe area for the van to be located while being loaded, and if possible in a position on the near side of the laneway, rather than against the low wall on the far side. That was absent in this case. It was reasonably foreseeable that an accident of this kind might occur if appropriate precautions were not taken to protect the plaintiff.

In these circumstances, I am satisfied that the defendant company breached its common law duty of care to the plaintiff by failing to ensure that this workplace, which includes this area for the purpose of this case, was safe in all the circumstances. I need not conclude the matter on the basis of any breach of statutory regulations.

Contributory negligence:

That said, however, I am satisfied that the plaintiff must bear a significant portion of the responsibility for this unfortunate occurrence. He also was well aware of the existence of passing traffic on this laneway. He was a mature and responsible employee, occupying the post of dispatch manager, as well as having other general duties. He must be taken as being aware that he must take reasonable care for his own safety while working in that environment. He accepts that he need not have moved to the outer side of the van from the back of the van in order to watch the progress of the first vehicle which passed him. It was not that act which was lacking in care for his own safety, but rather the manner in which he appears to have simply turned round to return to the back of the van, without apparently checking whether it was safe to do so, or anticipating that there might be a vehicle approaching. He failed to either see, or even hear the approaching car. It seems to me that he made that manoeuvre without any thought for any possible risk from cars which he was aware were in the habit of passing on that stretch of laneway. He ought to have taken more care for his own safety to ensure that it was safe to return to the back of the van. His failure to do so contributed significantly to this accident, even though his employer might also have taken greater care to ensure that his workplace was safer.

Coffey v Kavanagh

[2012] IESC 19

SC Denham C.J.

“….

3. The respondent claimed damages from the appellant to compensate her for injuries which she suffered arising out of an incident on the 4th October, 2004. On that date, in the course of her employment, she was caused or permitted to trip over a box in the office area of the appellant’s premises and suffered a fracture of her right wrist.

4. The respondent claimed that the fall and consequent injuries which she suffered were caused by reason of the negligence and breach of duty of the appellant in failing to provide her with a safe place of work and in causing or permitting the office area of the premises to become cluttered, unsafe and dangerous, with consequent risk of injury of the kind she sustained.

5. The appellant denied that he was negligent and claimed that the respondent’s injuries were caused by her own negligence in failing to have adequate regard for her own safety. He claimed that the respondent suffered her injury while she was assembling art packs and placing them in boxes on the floor of the office area, and that she failed to perform the task in a careful manner and caused or contributed to her own injury.

6. The learned trial judge found the respondent to be a careful, conscientious and truthful witness and he accepted her evidence as to the events which occurred on the 4th October, 2004. He held as follows:-

“When the [respondent] returned from lunch on the 4th October, 2004, the office area within the [appellant’s] premises was cluttered with boxes and materials which were strewn in a most untidy and unsatisfactory manner, and in some parts of the room, it was necessary to virtually climb over boxes in order to go from one part of the room to another.

The [respondent] began to tidy the office area in order to address, to some extent, complaints from the shop staff which had been made earlier by the [respondent] to the [appellant].

I am satisfied, on the evidence and on the balance of probabilities, that, whilst she was tidying the office floor, the [respondent] was caused to trip and fall. Her trip and fall was caused by some article or hazard on the floor which caused her to fall over one of the boxes on the floor.

The box over which she tripped was full of heavy materials and was, consequently, solidly fixed to the floor. In order to break her fall, the [respondent] put out her right (dominant) hand and her hand, consequently, took the principal force of her fall and she suffered the fracture which has given rise to these proceedings.

I accept the unchallenged evidence of Mr. Culleton that, in the circumstances, the office area within the [appellant’s] premises was unsafe for the purpose of packing articles into cardboard boxes and represented a hazard to staff members who were required to pass to and from and to through the office area for various purposes associated with their employment.

I also accept Mr. Culleton’s evidence that a safe traffic route should, at a minimum, have been provided for staff members for such purposes as they might require in the course of their employment. I am satisfied, on the evidence of the [respondent] and on the evidence of Ms. Giles, that no such safe traffic route was maintained in the office area in October 2004, when this incident occurred.

I am also satisfied, on the evidence of Mr. Culleton, that the system of work which was maintained by the [appellant] on the premises for the packing of materials into cardboard boxes was unsafe and represented a hazard for staff members who used the office area and were required to pass through the office.

In particular, the work station which was provided for employees to pack orders for transmission and delivery to customers was most unsatisfactory and untidy and unsuitable for the purpose for which it was required. It exposed the staff members to a variety of tripping hazards by reason of its inadequate space, its location, and the method which was adopted for packing and for storage within the defendant’s premises.

I accept Mr. Culleton’s evidence that there was a serious problem in relation to the available space for storing, packing and delivering materials from the small storage space at the back of the first floor of the defendant’s premises, and I accept the evidence of the [respondent] and of Ms. Giles, that, particularly during busy periods between July and the end of October each year, the office area was constantly cluttered with articles which comprised tripping hazards which were and remained a risk to staff members and other persons who were expected to use the office area and its environs.

Finally, I accept the evidence of Mr. Culleton that the [appellant] was negligent and in breach of his statutory and other obligations by failing to carry out a risk assessment in respect of the office area and the remainder of his premises, and by failing to put in place a safe and appropriate system of work which would have reduced or eliminated the risk of injury of the type which was sustained by the plaintiff.

It follows from what I have found that the [respondent] has established, on the evidence and on the balance of probabilities, that the [appellant’s] premises were unsafe and the system of work which was provided for the [respondent] was unsafe in the circumstances.

I am satisfied, also, that this negligence and breach of duty on the part of the [appellant] caused the [respondent’s] injury because I am satisfied, on the evidence, that she was caused to trip or fall because of the presence on the floor of article or hazard which, in turn, caused her to fall over one of the boxes on the floor. The [respondent] was acting in the course of her employment with the [appellant] when she suffered her injury and I accept her evidence that she was, in fact, trying to tidy up the premises when she tripped over the hazard which caused her injury.”

Contributory Negligence

7. On the issue of contributory negligence the learned High Court judge held:-

“It has been contended, on behalf of the [appellant], that the [respondent] was guilty of contributory negligence in failing to keep a proper lookout and that this negligence caused or contributed to her injury.

I do not accept that contention. I accept the evidence of the [respondent] and the evidence of Ms.Giles and that during busy periods, the floor of the office area within the [appellant’s] premises regularly became cluttered. I also accept the [respondent’s] evidence that she drew this to the [appellant’s] attention from time to time and that nothing was done by the [appellant] to reduce the risk of injury to the staff members by adopting a safe system.

I do not accept, on the evidence that the [respondent] failed to keep a proper lookout. I accept her evidence that a hazard on the floor, which she could not identify, but which caused her to trip, was probably either packing material or a tear in the carpet which caused her to trip and that she then fell over a box which was lying on the floor in an inappropriate place.

I cannot see how she can, in those circumstances, be found to have caused or contributed to her own injury. Accordingly, I am satisfied that the [respondent] is entitled to recover the full value of her claim.”

8. Thus, the learned trial judge did not accept the contention that the respondent was guilty of contributory negligence. He accepted the evidence of the respondent and Ms. Giles that the floor of the premises regularly became cluttered, and that she had drawn the problem to the attention of the appellant. He accepted her evidence that a hazard on the floor caused her to trip and that she fell over the box which was lying on the floor in an inappropriate place.

…..

Decision

15. This appeal raised the issue of liability for the injury caused. Essentially there was one issue, and that was whether the respondent was guilty of contributory negligence. It was submitted that she had failed to keep a proper lookout, that there were special circumstances in that the accident occurred in her office, that she was manager and that she had a duty of care. It was further submitted that there was a strong case for a finding of contributory negligence.

16. The law as to the role of this Court in reviewing oral evidence given in the High Court was stated by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at p. 217:-

“(i) An appellate court does not enjoy the opportunity of seeing and hearing the witnesses as does the trial judge who hears the substance of the evidence but, also, observes the manner in which it is given and the demeanour of those giving it. The arid pages of a transcript seldom reflect the atmosphere of a trial.

(ii) If the findings of fact made by the trial judge are supported by credible evidence, this Court is bound by those findings, however voluminous and, apparently, weighty the testimony against them. The truth is not the monopoly of any majority.

(iii) Inferences of fact are drawn in most trials; it is said that an appellate court is in as good a position as the trial judge to draw inferences of fact. (See judgment of Holmes L.J. in “ Gairloch”, The S.S., Aberdeen Glenline Steamship Co. v. Macken 2 I.R. 1, cited by O’Higgins C.J. in The People (Director of Public Prosecutions) v. Madden I.R. 336 at p. 339). I do not accept that this is always necessarily so. It may be that the demeanour of a witness in giving evidence will, itself, lead to an appropriate inference which an appellate court would not draw. In my judgment, an appellate court should be slow to substitute its own inference of fact where such depends upon oral evidence or recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.

(iv) A further issue arises as to the conclusion of law to be drawn from the combination of primary fact and proper inference – in a case of this kind, was there negligence? I leave aside the question of any special circumstance applying as a test of negligence in the particular case. If, on the facts found and either on the inferences drawn by the trial judge or on the inferences drawn by the appellate court in accordance with the principles set out above, it is established to the satisfaction of the appellate court that the conclusion of the trial judge as to whether or not there was negligence on the part of the individual charged was erroneous, the order will be varied accordingly.

(v) These views emphasise the importance of a clear statement, as was made in this case, by the trial judge of his findings of primary fact, the inferences to be drawn, and the conclusion that follows.”

17. This Court did not have the opportunity of seeing and hearing the witnesses in the High Court. The learned High Court judge did hear and see the witnesses and made primary findings of fact that are supported by credible evidence. Thus, this Court is bound by those findings. However, the High Court also drew inferences, and this Court may review those inferences.

18. The primary duty of care is on the employer, the appellant in this case, which has been established on the evidence. However, all the circumstances of the case have to be taken into consideration when considering the issue of contributory negligence.

19. The circumstances of this case include the following: the respondent was the manager of the shop. This role required her to work from a desk in the office. She was very familiar with the office. She had a responsibility to keep her desk and the area around it tidy. She knew of the clutter in the office; she had made a complaint previously; she knew of the potential danger; she was clearing the office when the accident occurred. She had started packing and unpacked two of the boxes and put them in the store room, and while walking, something on the floor caused her to trip and she fell. In all the circumstances I am satisfied that a degree of contributory negligence was established. I would hold that the respondent was 25% contributory negligent. Consequently, the award of damages for the respondent would be reduced to €41,175.00.

Conclusion

20. I would allow the appeal to the degree indicated in this judgment. “

Stachowski -v- Diamond Bar Ltd

[2012] IEHC 301

Peart J.

“…..

6. The issue as to liability in this case is whether the defendant breached its duty of care to the plaintiff by exposing him to an unsafe system of work, resulting in a foreseeable injury; or whether this plaintiff was in fact the author of his own misfortune by doing something which was not required of him by his employer and which he knew to be inherently dangerous and which could easily cause him an injury; or perhaps a combination of the two.

7. The plaintiff says that he was given no training as to how he should perform this task, and, that having been left to his own devices in this regard, he did the best he could. The defendant says that when the plaintiff was first taken on as an employee at the beginning of September, Mr Fay who owns the defendant company, and who is very experienced in this type of work, went out on the job with the plaintiff to show him the ropes, so to speak. He knew that the plaintiff had no previous experience of this type of work. The plaintiff had apparently done some military service in Poland before coming to this country, and as part of that service had obtained a qualification to drive trucks. But that apart, he had no particular relevant work experience. He was taken on as a general operative. Mr Fay was introduced to the plaintiff by another Polish man already in his employment. He found the plaintiff to be an excellent employee during the few weeks leading up to this injury. He spoke very highly of him.

8. The plaintiff has not stated that he was instructed by Mr Fay or any other employee of the defendant company to climb up onto the narrow ridge on top of the drop flap in order to adjust the pipes or the strapping. I can see no reason why the drop flap could not have been dropped, so that the plaintiff could easily have gained access to the flat bed of the truck and carried out whatever adjustments to the pipes that was necessary, and then put the flap back up into position in order to tie the straps to the sides of the truck. It is impossible to accept that the number of pipes and amount of other equipment on this truck would have made it impossible for the plaintiff to perform the task in this way. I cannot accept that there was the number of pipes which the plaintiff says there were on the truck. I cannot see any reason why there would be so many given the evidence which I have heard that a well might require perhaps 200 feet of piping. That would be ten lengths. I cannot see how there would be 90 pipes loaded up for a day’s work or even 50 in such circumstances.

9. The plaintiff was a very competent and valued employee even though he was working for the defendant company for a short number of weeks by the time of this accident. He was a general operative. It is inherent in the nature of the duties performed by a general operative that they are not specific. They can be many and varied as the day requires. Somebody such as the plaintiff must be expected to use his own commonsense in any situation which presents itself during the course of a day’s work. He must take reasonable care for his own safety too, and not take unnecessary risks. If he is presented with a situation which he considers to be risky, with the potential for injury to himself, he needs in his own interests to explore a safer way of doing the task. If necessary he could consult his employer for suggestions or advice.

10. In the present case the plaintiff was wearing Wellington boots. He decided to climb up onto the top ridge of the drop flap and to lean inwards while balancing on that ridge in order to adjust the pipes or the strapping. That was, he acknowledges, a dangerous manoeuvre. He appears to have lost his balance and fell awkwardly onto the ground below, causing himself a nasty twisting injury to his knee – a knee which had already suffered an injury previously apparently.

11. The plaintiff himself chose to adopt this particular and risky way of reaching the pipes and strapping. He was not instructed by the defendant to do this. He knew it was a risky thing to do. Having taken that risk, he has in my view only himself to blame. I am left wondering what exactly the defendant is supposed to have done to cause this to happen. The most that the plaintiff says is that he should have been provided with a ladder. I am not satisfied that even if he was given a ladder it would have assisted the plaintiff. I still consider that the optimal way of accessing the pipes was to simply lower the drop leaf and get up onto the back of the truck. The floor of the truck is only a meter or so above ground level. It is easily accessed by somebody like the plaintiff, even if some tools or equipment had to be moved slightly in order to facilitate him. He could in my view also have accessed the bed of the truck without dropping the leaf. He could even have left it in place and climbed over it and onto the floor of the truck, rather than simply staying perched precariously on the narrow ridge at the top of the drop leaf.

12. I do not consider that it is reasonable that his employer should be expected to have anticipated that the plaintiff would do as he did. It was not reasonably foreseeable that he would act in this way. I do not consider that the defendant breached its duty of care to the plaintiff. That duty of care is not an insurance or guarantee that no injury will be caused to the plaintiff. It is a duty to take reasonable care, and not expose the plaintiff to a foreseeable risk or hazard. Simply because an employee receives an injury at work does not automatically mean that his employer is responsible for its occurrence.

13. In these circumstances, I must dismiss the plaintiff’s claim. “

Everitt v. Thorsman Ireland Ltd.

[1999] IEHC 7; [2000] 1 IR 256

Kearns J

“…

22. Accordingly, a question falls for determination as to the responsibility, if any, of an employer for an injury sustained by an employee in circumstances where a tool supplied by a third party contains a latent defect which results in an injury to the employee.

As McMahon and Binchy (1990 Ed.) points out at p. 327:-

“The employer has the duty to take ‘reasonable care’ to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”

23. The authors point out at p. 328:-

“It should, however, be pointed out that an employer is not an insurer of the safety of the equipment supplied to his employees. As Kingsmill Moore J. stated in the Supreme Court decision of Dowling -v- C.I.E.,

‘This duty is not a warranty but only a duty to exercise all reasonable care’.

Thus, where an employer buys from a supplier a standard tool, whose latent defect he has no means of discovering, he may be relieved of liability in negligence in the event of injury to an employee.”

24. In this regard, the first named Defendants relied on the decision of the House of Lords in Davie -v- New Merton Board Mills Limited and Anor. (1959 AC 604).

25. In that case a maintenance fitter was knocking out a metal key by means of a drift and hammer when, at the second blow of the hammer, a particle of metal flew off the head of the drift and into his eye, causing injuries. The drift, which had been provided for his use by his employers, although apparently in good condition, was of excessive hardness, and was, in thecircumstances, a dangerous tool. It had been negligently manufactured by reputable makers, who had sold it to a reputable firm of suppliers who, in turn, had sold it to the employers, whose system of maintenance and inspection was not at fault. The fitter claimed damages for negligence against his employers on the ground that they had supplied him with a defective tool.

26. The House of Lords held that the employers being under a duty to take reasonable care to provide a reasonably safe tool, had discharged that duty by buying from a reputable source a tool whose latent defect they had no means of discovering.

27. This unanimous view of the House of Lords is in accord with the Irish judgments in Bissett -v- Heiton & Co. (1930 I.R. 17) and Bissett -v- Heiton & Co. (No. 2) (1933 I.R. 242).

28. The Plaintiff for his part relied upon a decision of the Supreme Court delivered on the 18th November 1992 in Connolly -v- Dundalk Urban District Council and in particular to the passage of the judgment of O’Flaherty J. as follows:-

“The common law duties to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property, which is the instant case – are such that they cannot be delegated to independent contractors so as to avoid the primary liability that devolves on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee. That is not to say, of course, but that the employer on occasion is entitled to and very often should get the best expert help that he can from an independent contractor to perform these duties. If he does so and the contractor is negligent causing injury to an employee, the employer retains a primary liability for the damage sufferedthough if he is not himself negligent he may obtain from the contractor a contribution to the damages and costs which he has to pay which will amount to an indemnity.”

29. Careful reading of this passage, which was obiter, certainly conveys to me that the learned Judge recognised that the actual common law duty is “to take reasonable steps to provide safe plant and a safe place of work”, and in the particular case (which concerned premises and not a tool) the employers were in any event found to be in default in two respects.

30. What further steps could the employers have taken in the instant case? Short of having the lever assessed by an expert in metallurgy or breaking the lever with a view to determining its maximum stress resistance it is difficult to see what they could have done. It was a newly purchased tool which appeared strong enough for the job and had been purchased from a reputable supplier and there is no suggestion to the contrary.

31. I therefore hold that the claim in common law against the employer in this instance fails.

32. That leaves open the question of statutory duty. The only breach of statutory duty upon which the Plaintiff relies (and in this regard no details of breach of statutory duty appear either in the original civil bill or amended statement of claim) is the suggestion that under Section 34 (1) (a) of the Factories Acts, 1955, the Defendants failed to provide “lifting tackle” which was of good construction, sound material, adequate strength and free from patent defect. I do not believe the lever in question can be regarded as “lifting tackle” and as the decision inDoherty -v- Bowaters Irish Wool Board Limited [1968] IR 277 related to a hook which was carrying a load which was suspended from a travelling crane, that case does not seem to me to be a binding authority in the present instance.

33. What does, however, seem to me to cover the situation is regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (SI No 44 of 1993) which imposes virtually an absoute duty on employers in respect of the safety of equipment provided for the use of their employees.

……..

34. Article 19 provides:-

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

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

35. Article 20 requires employers to comply with the requirements of the fifth schedule which includes the following requirement at Requirement 7:-

“Where there is a risk of rupture or disintegration of parts of work equipment, likely to pose significant danger to the safety and health of employees, appropriate protection measures shall be taken.”

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

37. Accordingly, I find there has been breach of statutory duty on the part of the first named Defendant in this case……”

Lynch v Binnacle Ltd t/a Cavan Co-Op Mart

[2011] IESC 8

Supreme Court Denham J.

“Safe System of Work

24. The respondent had a duty to provide a safe system of work for the appellant. There was expert evidence that the system of work was safe when three drovers were present. However, when two drovers were absent the system became unsafe. When the appellant was injured the system was unsafe. In Kinsella v. Hammond Lane Industries Limited [1962] 96 ILTR 1 at p.4, McLoughlin J. stated:-

“If an accident causes injury to a workman and the accident results from a risk, of an unsafe system of work, against which the employer should have but did not take, reasonable precautions to guard, then the employer is liable for damages.”

25. In this case the facts are not in issue. Two employees left their work, thereby turning a safe system of work into an unsafe system. It is clear from the evidence that no provision was made for a situation where one, or two, drovers left their work. It is also clear from the evidence that the drovers were given no orders or directions as to what should happen in such circumstances. There was no evidence of supervision or of a procedure to be followed if one or more drovers left their work. The question then arises as to whether the respondent employer is vicariously liable.

Vicarious Liability

26. The traditional test, the Salmond test, was stated in Salmond’s The Law of Torts (1st ed., 1907) p.83:-

“A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master.

But a master … is liable even for the acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them.”

27. An employer may be vicariously liable for the wrongs of an employee, even when the employer may not have been at fault. Murnaghan J. pointed out in Byrne v. Ireland [1972] I.R. 241 at 280 (SC):-

“The doctrine is not invalidated by showing that the principal cannot commit the particular tort. It rests not on the notion of the principal’s wrong but on the duty of the principal to make good the damage done by his servants or agents in carrying on the principal’s affairs.”

28. In McMahon & Binchy’s Law of Torts, 3rd edn. (Butterworths Ireland Ltd., 2000), at paragraph 43.02, it is stated:-

“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the seventeenth century. It survived the “no liability without fault” era, to some extent as an anomaly, but nowadays with the trend towards no-fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, the concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow “the deep pocket”.”

29. In the recent Supreme Court decision of O’Keeffe v. Hickey [2009] 2 IR 302, the Court held that the State were not liable for actionable wrongs committed by the first named defendant in the action, who was a teacher, as there was no direct employment relationship between the teacher and the State. However, in several judgments there were discussions on vicarious liability, which were obiter dicta. The law at home and abroad was considered.

30. Having addressed the law in this jurisdiction, in Canada, and in the United Kingdom, Hardiman J. concluded that the law in Ireland is still that as stated in the Salmond test, and said any changes should be by legislation. Hardiman J. stated at paragraph 121:-

“I am not satisfied that it would be proper to ground vicarious liability on any of the theories expounded in the Canadian cases. I do not believe that the requirements of either fair compensation or deterrence justify the novel imposition of strict liability on an innocent employer for acts quite outside the well established Salmond test. It seems to me, as I have already said in this judgment, lacking in fundamental justice to impose a liability on a person simply because he is, or is thought to be, in a position to pay compensation. Equally, and perhaps even more obviously, it is wrong to impose the status of wrongdoer and the liability to pay compensation without fault for acts outside the scope of employment on the basis of pour encourager les autres.”

31. Fennelly J. also analysed cases from Canada and England and Wales . He took a different approach, and stated at paragraph 237:-

“The theoretical underpinnings of the doctrine of vicarious liability are much debated but no clear conclusion emerges. The result is that strict liability is imposed on an employer regardless of personal fault, which is especially striking when the acts are criminal and could not conceivably have been authorised even impliedly. Lord Steyn thought the imposition would be fair and just, if the necessary circumstances existed. Among the reasons suggested in the cases mentioned above is that the employer should bear the burden because he has “set the whole thing in motion” (Lord Brougham) or “has put the agent in his place…” (Willes J) or “is better able to make good any damage…” (Lord Pearce).

Also, commencing at paragraph 243, he stated:-

The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”

32. It is not necessary to consider a wider analysis in this case. In this case it is not necessary to advance beyond the traditional statement of the law in the Salmond test. This case is fact specific. The circumstances were that two other employee drovers left their work. While this was unauthorised it clearly was known that drovers did absent themselves from work on occasions. There was no evidence of any system of supervision by the employer. The drovers were authorised to herd the cattle. It was improper to absent themselves. Their absence was connected with the act they were authorised to do. This was so connected with the acts that they were authorised to do, droving the cattle, as to result in an improper mode of doing the work, an unsafe system of work. If they had not absented themselves the appellant would not have been exposed to danger. In this case one of the absent drovers was specifically employed to open the gate to the weighbridge, and it was in the absence of his co-employees that the appellant moved behind the bullock to open the gate and so expose himself to danger.

33. In all the circumstances of the case I am satisfied that the respondent is liable for the actions of the two employees, the two drovers, who absented themselves from work and so transformed a safe system of work and caused an unsafe system of work, a situation where the appellant was exposed to risk, and to injury.

Contributory negligence

34. However, the appellant also has a degree of responsibility. He did not ask the two other drovers to remain at work, nor did he even ask one to remain. He did not ask anyone to help him. He did not stop processing the cattle. He sought no assistance. The appellant has been a drover for many years, he is skilled and experienced in droving cattle, and would know of the nature of cattle and of a Limousin bullock. He had been employed as a drover for many years at the mart. Also, he managed cattle on his own farm. Consequently he is experienced in droving cattle. In all the circumstances I am satisfied that the appellant would have a contributory negligence of 33%.

35. Consequently, I would allow the appeal on the issue of liability and remit the matter to the High Court for an assessment of damages.”

Fennelly J.

“18. Since the decision of this court in Bradley v Córas Iompair Eireann [1976] I.R. 217 it has been established that, in cases of employers liability, negligence can be established in either of two ways: firstly, by establishing a departure from known and accepted standards in the particular trade or industry; secondly, by demonstrating a failing so obvious as to be unreasonable. Henchy J cited two principal authorities. In Morton v. William Dixon Ltd [1909] SC 807, Lord Dunedin pronounced what Henchy J considered to be “the most commonly cited statement of the necessary degree of proof” as follows:

“. . . I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.”

19. That prescription was, as Henchy J put it, “glossed” by Lord Normand in Paris v Stepney Borough Council [1951] AC 367 at 382:

“The rule is stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think so obvious that it was folly to omit it.”

20. The consequence of these principles is, in practice, that a plaintiff will rely on the evidence of an expert in order to establish the appropriate applicable standard. Mr Lyons cited the following passage from the judgment of Murray J, as he then was, in McSweeney v J. S. McCarthy LTD [Supreme Court unreported 28th January 2000]:

“It is well-established that an employer is under a common-law duty to provide his employees with a reasonably safe system of work. I know of no principle which exempts an employer from this duty only because their employee(s) are experienced, or know or ought to have known, of the dangers inherent in the work. Certainly, there are many factors which come into play in assessing whether, in the circumstances of the particular case, the system of work was reasonably safe or not. Among these are the experience of the workmen concerned, the level of danger involved, its complexity and so on.”

21. The employer is thus under a duty at common law to “provide his employees with a reasonably safe system of work.” This duty is laid directly on the employer and is non-delegable. As Hardiman J said in his judgment in O’Keeffe v Hickey [2009] 2 IR 302 at 325, the “distinction between a non-delegable duty of an employer and a vicarious liability of the employer for his employees is a subtle one.” I believe this distinction is at the root of the problem in this case. The learned trial judge looked for a distinct tortious act of the employees, Mr Drury and Mr Ford, with vicarious liability of the employer for that act as the sole basis of imposition of liability, but neglected to note that the duty to provide, using the expression of Murray J, a safe system of work is incumbent directly on the employer and is not capable of being delegated.

22. The authors of McMahon & Binchy, Law of Torts, (2nd ed. Butterworths, 1990 pars 18.33 state that “[s]ince Wilsons & Clyde Coal Ltd. v English [1938] A.C. it has been recognised that an employer’s duty of care to his or her employees is “non-delegable.””

23. Wilsons & Clyde Coal concerned an accident in a colliery in Scotland. The owner had delegated the management of the colliery to an agent. The respondents sought to rely on what is now the defunct defence of common employment to defeat the claim of a miner injured in their mine. Lord Macmillan explained the nature of the duty of an employer to his employees in the following terms at page 75:

“Now I take it to be settled law that the provision of a safe system of working in a colliery is an obligation of the owner of the colliery. He cannot divest himself of this duty, though he may – and, if it involves technical management and he is not himself technically qualified, must – perform it through the agency of an employee. It remains the owner’s obligation, and the agent whom the owner appoints to perform it performs it on the owner’s behalf. The owner remains vicariously responsible for the negligence of the person whom he has appointed to perform his obligation for him, and cannot escape liability by merely proving that he has appointed a competent agent. If the owner’s duty has not been performed, no matter how competent the agent selected by the owner to perform it for him, the owner is responsible.”

24. O’Flaherty J in Connolly v Dundalk Urban District Council (unreported Supreme Court 18th November 1992, on appeal from the High Court judgment of O’Hanlon J reported at [1990] 2 I.R. 1) expressed the matter in the following terms:

“ The common law duty is to take reasonable steps to provide safe plant and a safe place of work – I speak of the place of work as being part of the employer’s property…… are such that they cannot be delegated to independent contractors so as to avoid the primary liability that falls on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee.”

25. If the employer retains an independent contractor who, by his negligence, causes injury to the employee, “the employer retains a primary liability for the damage suffered though if he is not himself negligent he may obtain from the contractor a contribution to the damages and cots which he has to pay which will amount to a full indemnity.”

26. In the final analysis, I believe that the appellant is entitled to succeed in his appeal. This result can be reached alternatively through the route of vicarious liability or non–delegable duty. On the first basis, it can be said that it was the duty of the appellant’s fellow workers to assist him in the tasks of getting the animals from the pens into the sales ring. When they abandoned their task, they were acting within the course of their employment. They committed a breach of the duty of care owed to the appellant and the employer is vicariously responsible. I cannot see how this form of liability can be affected, as the trial judge appears to have thought, either by reason of the failure of the two men to seek permission or the fact that, as he believed, the absence of both men at the same time was unique. Alternatively, insofar as the otherwise safe system of work was not in operation on the day of the accident, the employer bears primary responsibility. The system was well described by the appellant and his engineer. The respondent called no evidence to explain how two men could leave their posts without permission or explanation. I would decide the primary issue of liability in favour of the appellant.

27. The respondent submits that, even assuming the respondent to have been liable, the appellant was guilty of contributory negligence. Two points, in particular, are made: firstly, that the appellant took inadequate care for his own safety by stepping into the single pen behind the Limousin bullock, thus exposing himself to the risk of being kicked; secondly, he should have sought assistance from other staff, rather than proceeding, as he did, to look after all the cattle going into the bullocks sale single-handed. In my view, there was contributory negligence on the part of the appellant. At the same time, it must be kept in mind that the prime duty to ensure that the system of work was safe rested on the respondent. The appellant was, in effect, continuing to keep the sales going for his employer. He also gave evidence, when pressed in cross-examination, that there was no other staff available. The appellant was an experienced handler of cattle and should have appreciated the risk of going into a pen alone with a single bullock. I would assess the contributory negligence at 33%.

28. I would remit the matter to the High Court to assess damages.”

Deegan v Langan

[1966] IR 373

WALSH J. :

“The appellant was found guilty of negligence in providing for use by the respondent, in the course of a building operation being carried on by the appellant, a particular type of steel masonry nail which was dangerous in that it was apt to disintegrate when struck by a hammer. Such a disintegration occurred when the respondent was using the nail in the course of his employment for the appellant with the result that the respondent lost the sight of one eye.

There was evidence that the appellant was aware of the dangerous quality of the nail in question when he provided the same for use by the respondent and permitted him to use it with a hammer. There was also evidence that the respondent himself was aware of this dangerous quality in the nail and that the appellant’s knowledge of this dangerous quality was also known to the respondent. The position was therefore that at the time of the accident the respondent was hammering a nail which to his own knowledge and to his employer’s knowledge was dangerous because of its propensity to disintegrate and the respondent was using the nail, which was provided by the appellant, for the purpose of the appellant’s work upon which the respondent was engaged.

The appellant complains that the learned trial Judge misdirected himself in law in refusing to allow counsel for the appellant to cross-examine the respondent to the effect that the respondent was himself guilty of negligence in using the nail when he knew it to have this particular dangerous quality. The allegation of negligence against the respondent which the Judge refused to permit to be pursued was that the respondent decided to run the risk of using this dangerous type of nail. There was no question of any negligence on his part after making his decision to use the nail.

It appears to me that the law governing such a situation is that the decision to run the risk does not amount to negligence on the part of the plaintiff provided that his conduct under all the circumstances was that of a reasonable man; that is, whether in this particular case, having regard to all the circumstances, his decision to use the nail was a reasonable one. It has been contended on behalf of the appellant that it should have been left to the jury to decide whether or not the respondent was unreasonable in not making representations to his employer about using this nail and in not having his instructions to use it further confirmed and, it is contended, that for not having done so the jury could find that he had acted unreasonably.

In my view a jury could not so find on the facts in this case.”

Caulfield v. Bell and Company Limited [1958] I.R. 331

Murnaghan J.

“ The expression, “a safe system of work,” which has become increasingly familiar in the Courts, has not, as far as I am aware, ever been precisely defined, nor, beyond saying that the obligation involved presupposes a system, am I going to attempt a definition. The expression has to be considered in every case, to which it is appropriate, in relation to the particular circumstances of the job in hand. In the expression the word, “safe,” means no more than”as safe as is reasonably possible in the circumstances.”The degree of safety would depend on the particular job, and would vary between wide limits.

In work of the kind which I gather was being performed by the plaintiff and which appears to have been of a repetitive nature I imagine it could not be said that there was not “a system” of work of some kind in operation. I do not know to what extent there was a risk of timber falling when being hoisted from the ship involved in that operation.

The plaintiff’s complaint in the present case is that the system of work, which he has not detailed, was unsafe in as much as the plaintiff had not adequate protection from timber falling when being hoisted from the ship. He does not complain that there was no system. The defendant Company now complains that it does not know in what respect the system of work is alleged by the plaintiff to have been unsafe and that, as a consequence, it does not know what case it will have to meet at the trial, where, Mr. Sainsbury says, the plaintiff, unless required to give particulars, can spring any surprise.

This is the first occasion, in these Courts as far as I am aware, on which the question has arisen as to what particulars (if any) should be given of an alleged unsafe system of work. The question is one of considerable importance and is not free from difficulty.

Mr. Sainsbury contends for the proposition contained in the words of Viscount Simon L.C. in Colfar v. Coggins and Griffith (Liverpool), Ltd. (1):

“. . . the advisers of the present appellant realized that his claim (independently of the Workmen’s Compensation Act) was bound to fail unless it could be established that the accident was due to the respondents’ failure to provide and maintain a proper system of work. ……..

The plaintiff must, in my opinion, in order to establish his case prove first that the system was not safe; second, what his employer could reasonably have done to make the system reasonably safe; and third, that his employers’ failure so to do was the cause of the accident.

I respectfully dissent from the view of Viscount Simon L.C., unless the passage I have quoted, where it says that “the statement of claim ought to set out, so far as relevant, what the proper system of work was, and in what relevant respects it is alleged that it was not observed,” is to be understood as meaning that following an allegation of negligence in the statement of claim particulars should be given to the effect shortly that the system of work in operation was unsafe, and that it could have been made safe in such and such a manner.

Wilson v Tyneside Window Cleaning Co

[1958] EWCA Civ 2 [1958] 2 All ER 265, [1958] 2 QB 110

CA PEARCE LJ

“The Plaintiff appeals from a Judgment of Mr. Justice Donovan given at the York Assizes on the 14th June, 1957, dismissing the Plaintiff’s claim for damages for personal injury suffered in an accident sustained by him when he was working for the Defendants as a window cleaner. The Plaintiff alleged negligence against the Defendants. The Defendants denied negligence but made no all

The learned Judge dealt with the first contention (as to the duty to provide a safe place of work) as follows. First he reminded himself of the well-known dictum of Lord Herschell in Smith v. Baker — that the duty of the employer is to take reasonable care to provide proper appliances and to maintain them in proper condition and so to carry out his operations as not to subject those employed by him to unnecessary risk. He dealt with the passage in the Judgment of Lord Justice Denning in the window-cleaning case of Christmas v. General Cleaning Contractors Limited, to which I have referred. That passage reads as follows: “The next question is whether the contractors are liable to their workman, the plaintiff. Counsel for the contractors argued that employers who send their men out to work on the premises of other people have no responsibility for the safety of those premises. Be cited Taylor v. Sims & Sims in support of that proposition. He said that it was for the occupier to see that the premises were safe for the workman and not for the employer to do so. I cannot agree with that proposition. Until recently many people thought that an occupier was bound to use reasonable care to see that his premises were safe for workmen he invited on them, but that is no longer true. The decision of the House of Lords in London Graving Dock Company Limited v. Horton shows that an occupier can allow his premises to remain defective and dangerous with impunity so long as he gives the men warning that the risk or the danger is so obvious that they must be aware of it. If this is so, I think it must follow that it is for the employer, who sends his men to the premises, to take reasonable care to see that the premises are safe for the men, or else take proper steps to protect the men from the dangers to which he sends them.

The learned Lord Justice was in effect saying that Horton’s case had left a gap which must be filled by imposing on the employer a liability for dangers for which the invitor might no longer be liable. The learned Judge observed that the other members of the Court of Appeal had based their Judgments on somewhat different grounds and that in the House of Lords the decision in the Plaintiff’s favour was based on a shortcoming in the system employed to clean the windows rather than a failure to inspect the windows before each periodical cleaning. He then referred to Cilia v. James & Sons and. Taylor v. Sims & Sims, in each of which cases the learned Judges held that where an employer sent out his men to work on the premises of others there was no duty of care on him in respect of those premises and that, if there were, the duty had, on the particular facts of each case, been discharged. He also referred to Hodgson v. British Arc Welding Company Limited (1946 King’s Bench, page 302), in which Mr. Justice Hilbery dealt with a similar point in a somewhat different and, as it seems to me, a preferable way. The implications of his Judgment are’ not that the employers had no duty at all in respect of things over which they had no control but that the discharge of that duty was of a wholly different kind from that where the master was in control.

The learned Judge then continued as follows:

“There is no evidence before me of any practice of window cleaning employers to inspect premises in detail before each periodical cleaning of the windows. Nor would Mr. Davis — a surveyor called for the Plaintiff — go further than to say that employers should go around while the work was on ‘to keep an eye on the men and see how the job was shaping’. I think it would be placing too heavy a burden upon employers to say that they must inspect in detail all the premises where their men clean windows every time the men do so and before they do so. Some premises contain so many windows that before the last window was inspected some new defect might have developed in the first; for example, a broken sash-cord, and the work of inspection might be endless. And without in any way minimising the risks of the job, I think they can be met in other ways. If men are properly taught their job; are provided with proper equipment; are adequately warned of the dangers, and are instructed that they should not clean any windows which appear to them to be too dangerous to clean, but should report the matter back to the employer, then it seems to me to be unnecessary to lay down that the employer must in addition inspect every window beforehand”.

The learned Judge then went on to deal with the case of Thomson v. Cremin (1953 2 All England Reports, page 1185) on which the Plaintiff relied before him and relies before us. In that case a stevedore succeeded against a shipowner, as invitor, in respect of a faulty shoring that injured the Plaintiff. The shoring had been installed by competent shipwrights in Australia who were independent contractors, and a Government certificate, had been issued to the effect that the regulations had been duly complied with. The shipowner, on the same reasoning as that in Wilsons & Clyde Coal Company v. English, was held vicariously liable to an invitee for the default of the independent contractors. The Plaintiff in this ease sought to say that since a master owes an even higher duty to a servant than an invitor to an invitee, then a master must a fortiori owe a duty to a servant to see that the premises are safe before sending his workman to work on someone else’s premises. But, as the learned Judge pointed out, this vary argument had failed in that case, since the plaintiff had sued his master as wall as the shipowner but had failed against his master,. The learned Judge referred to the words of Lord Simon and Lord Wright in that case. Lord Simon said:

“Rare, again, I agree with the view of the Scottish courts that it was not proved to be part of the regular practice or course of duty of stevedoring firms to make such inspection”.

The learned Judge then dealt with the duty to make this particular handle safe, and concluded that since it was not within the power of the Defendants to do so and they had net the necessary control over the premises it could hardly be unreasonable not to do so. He concluded, on this point,

“The Defendants in fact met the situation in this case by telling the Plaintiff, a very experienced man, that he need clean no window which he considered unsafe. I hold that there was no obligation upon the Defendants to go further and make good the defective handle. The duty of an employer to take reasonable care to provide a safe place of work relates, in my view, only to that place of work which is in the employer’s occupation or over which he is shown to have the necessary degree of control. This is not true of the premises in the present case”.

The learned Judge then dealt with the Defendants’ alleged failure to warn the Plaintiff of that which he already knew, namely, the danger of pulling on handles, and with the failure to give periodically repeated warnings in order to keep his caution vigilant, and decided that there was no negligent failure in that respect. He commented on the fact that there was no evidence of any practice in the trade with regard to repeated warnings. He differentiated between this case and cases where risks are “insidious and unseen”, such as dermatitis eases, where, for instance, it might be that reminders as to the use of barrier cream and such like precautions were necessary; and he pointed out that in any event it was pure guesswork as to whether, if there had been periodic warnings, this accident would have been avoided. He found, therefore, that the Defendants had not been negligent.

Now it is true that in Wilsons & Clyde Coal Company v. English, Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master’s own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a, respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between those extremes are countless possible examples in which the Court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master’s premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man’s own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter, So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable steps.

That, as it seems to me, is the reasoning of this Court in Biddle v. Hart (1907 1 King’s Bench, page 649). In that case a stevedore’s workman, whilst engaged in unloading a ship, was injured owing to a defect in the tackle, and he was suing his master. The learned Judge withdrew the case from the jury, on the ground that the stevedore was not responsible for a defect in the ship’s tackle because the tackle did not belong to him. Lord Scroll said:

“In my opinion, if the employer uses plant which is net his own for the purpose of doing something which he has engaged to do, it cannot possibly be said that he has no duty whatever in relation to that plant. Otherwise he would be able to take anything that came from anybody and to use anything in the work he was engaged upon without making any inquiry at all, and then say, in the event of an injury arising from a defect in the plant, that he had nothing to do with it, and so escape liability. That, to my mind, is unreasonable, and is not consistent with the second section. What I take to be the meaning of that is that if the employer uses plant which does not belong to him, he may have a duty in regard to the persons employed to take reasonable care to see that it is proper for the purpose for which it is need. It may be that in a case of this character, although he had that duty, yet, if he had dealt with these shipowners before and had never had any cause for complaint, the jury might think that he had reasonably discharged that duty. On the other hand, when you have evidence that the plant was old and had been in use for a long time, the jury might say they ware not satisfied that reasonable care had been taken to see that it was in a proper condition. Once establish the duty the question la, What would the jury consider a discharge of that duty?”.

As Lord Justice Parker pointed out in Davie v. New Merton Board Mills (1958 1 All England Reports, page 67), that reasoning seems inconsistent with the two decisions to which I have referred which say that there is no duty of care in respect of premises over which the master has no control, but it is consistent with the alternative ratio in each ease that the duty had been discharged. It is consistent, I think, with the implications of the Judgment of Mr. Justice Hilbery in Hodgson v. British Arc Welding Company Limited. But applying that reasoning to this case, I think that the Plaintiff has not shown that the Defendants failed to take reasonable steps for the safety of the Plaintiff.

The learned Judge’s reasoning seems to me to be sound. It was a question of fact whether the Defendants were negligent; and I see no ground for differing from the conclusions of fact which the learned Judge reached.”

I would dismiss the appeal.

McDermid v Nash Dredging & Reclamation Co Ltd

[1986] UKHL 5 [1987] 2 All ER 878, [1987] AC 906

Lord Brandon

“Neill L.J., giving the judgment of the Court of Appeal [1986] Q.B. 965, did not accept the judge’s view that the defendants were liable to the plaintiff because Captain Sas was to be taken, as between the plaintiff and the defendants, to have been the servant of the defendants. He concluded, after an examination of all the relevant evidence, that Captain Sas was, and remained at all material times, the servant of Stevin. He went on to say, however, that this circumstance did not conclude the issue of liability in favour of the defendants, because it was also necessary to consider the question whether the defendants were in breach of the personal duty of care owed by them to the plaintiff.

In this connection he said, at p. 974: “In the instant case the relevant facet of the general duty of the defendants to take reasonable care for the safety of the young plaintiff was the obligation to provide and maintain in operation a safe system of work.”

……

Neill L.J. then discussed at length the principles of law governing the question of when employers may be held liable for the acts or omissions of a person who is not their servant. In the course of that discussion he referred to and cited from two well known English authorities, Davie v. New Merton Board Mills Ltd. [1959] A.C. 604 and Wingfield v. Ellerman’s Wilson Line Ltd. [1960] 2 Lloyd’s Rep. 16, and a recent decision of the High Court of Australia, Kondis v. State Transport Authority (1984) 55 A.L.R. 25.

He expressed his conclusions with regard to the proper principles of law to be applied and the proper approach to be followed, at pp. 979-980: “Neither in the cases to which we were referred in the course of the argument, however, nor in the other authorities to which we have had regard in the course of considering this judgment, have we been able to discover any general principle which provides a sure guide to the limits of vicarious liability in tort. It is clear that the legacy of the doctrine of common employment remains, together with the rather uneasy division between cases where an employer may be liable for the negligent performance of his personal duties by a third party and cases where the employer may be liable vicariously for the negligence of an employee or agent. It seems to this court, therefore, that in a case where a plaintiff is suing in respect of injuries received by him in the course of his employment and while working at a place at which he is required by his employer to work, the only satisfactory approach is to look at all the circumstances in the light of the fact that it is the basic duty of the employer to take reasonable care so to conduct his operations as not to subject those employed by him to unnecessary risk. The relevant circumstances will include: (a) the skill and experience of the injured employee, (b) the nature of the task on which the employee was employed, (c) the place where the injured employee was employed and the degree of control which the employer exercised at that place, (d) the relationship, if any, between the injured employee and the individual tortfeasor, (e) the relationship, if any, betweenthe employer and the individual tortfeasor, (f) the interest, if any, of the employer in the actual task which the individual tortfeasor was performing when the accident occurred.”

……

My Lords, I consider first the primary issue as to whether the defendants are liable to the plaintiff at all, either on the ground relied on by Staughton J. or on the different ground relied on by the Court of Appeal. In relation to this issue I would make a number of observations. First, there was, in my opinion, no material on which Staughton J. was entitled to find that a possible explanation of the action of Captain Sas in putting the engines astern prematurely was that he did so deliberately in order to encourage the plaintiff to perform his tasks more quickly. There was no evidence that Captain Sas thought that the plaintiff worked too slowly, and, in the absence of such evidence, the suggestion that Captain Sas deliberately put the plaintiff in danger in order to teach him a lesson is not one which ought to be entertained.

Secondly, I agree with the Court of Appeal that Captain Sas was, and remained at all material times, the servant of Stevin, and that Staughton J. was wrong in holding that, as between the plaintiff and the defendants, Captain Sas must be taken to have been the servant of the defendants. Thirdly, I agree with the Court of Appeal that the real question in the case is whether the defendants were in breach of the duty of care which they owed to the plaintiff in not devising and operating a safe system of work for him. Fourthly, I agree with the Court of Appeal that there was scope on the evidence for a finding that the system of work devised by Captain Sas, under which the plaintiff was to inform him that he had completed his work of unmooring by knocking on the outside of the wheelhouse, was unsafe. However, for reasons which will become apparent, I do not consider that it is necessary to reach a conclusion on that point.

My Lords, the Court of Appeal regarded the case as raising difficult questions of law on which clear authority was not easy to find. With great respect to the elaborate judgment of that court, I think that they have treated the case as more difficult than it really is. A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non- delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty.

In the present case the relevant system of work in relation to the plaintiff was the system for unmooring the tug Ina. In the events which occurred the defendants delegated both the devising and the operating of such system to Captain Sas, who was not their servant. An essential feature of such system, if it was to be a safe one, was that Captain Sas would not work the tug’s engines ahead or astern until he knew that the plaintiff had completed his work of unmooring the tug. The system which Captain Sas devised was one under which the plaintiff would let him know that he had completed that work by giving two knocks on the outside of the wheelhouse. I have already said that I agree with the Court of Appeal that there was scope, on the evidence, for a finding that that system was not a safe one. I shall assume, however, in the absence of any contrary finding by Staughton J., that that system, as devised by Captain Sas, was safe. The crucial point, however, is that, on the occasion of the plaintiff’s accident, Captain Sas did not operate that system. He negligently failed to operate it in that he put the tug’s engines astern at a time when the plaintiff had not given, and he, Captain Sas, could not therefore have heard, the prescribed signal of two knocks by the plaintiff on the outside of the wheelhouse. For this failure by Captain Sas to operate the system which he had devised, the defendants, as the plaintiff’s employers, are personally, not vicariously, liable to him.

It was contended for the defendants that the negligence of Captain Sas was not negligence in failing to operate the safe system which he had devised. It was rather casual negligence in the course of operating such system, for which the defendants, since Captain Sas was not their servant, were not liable. I cannot accept that contention. The negligence of Captain Sas was not casual but central. It involved abandoning the safe system of work which he had devised and operating in its place a manifestly unsafe system. In the result there was a failure by the defendants, not in devising a safe system of work for the plaintiff, but in operating one.

On these grounds, which while not differing in substance from those relied on by the Court of Appeal are perhaps more simply and directly expressed, I agree with that court that the defendants are liable to the plaintiff.

…….

My Lords, for the reasons which I have given, I consider that the Court of Appeal decided rightly both the issues which arise on this appeal, and I would accordingly dismiss the appeal with costs.

Timer v AEC Limited

[1953] 2 All ER 449, [1953] AC 643, [1953] UKHL 3

Lord Oaksey

‘On the question of the construction of section 25(1) of the Factories Act, 1937, I am of the opinion that by virtue of that section and the interpretation section 152, the respondents were bound to maintain the floors and passages in an efficient state, but I do not consider that it was proved that they were not in an efficient state. A floor does not, in my opinion, cease to be in an efficient state because a piece of orange peel or a small pool of some slippery material is on it. Whilst I do not agree that the maintenance of the floors is confined to their construction, I think the obligation to maintain them in an efficient state introduces into what is an absolute duty a question of degree as to what is efficient . . The question then is whether section 25(1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even so, keeping the surface of a floor free from dangerous material does not appear to me to come within the scope of maintaining the floor.’

Lord Tucker

‘The learned judge seems to have accepted the reasoning of counsel for the plaintiff to the effect that the floor was slippery, that slipperiness is a potential danger, that the defendants must be taken to have been aware of this, that in the circumstances nothing could have been done to remedy the slipperiness, that the defendants allowed work to proceed, that an accident due to slipperiness occurred, and that the defendants are therefore liable.

This is not the correct approach. The problem is perfectly simple. The only question was: has it been proved that the floor was so slippery that, remedial steps not being possible, a reasonably prudent employer would have closed down the factory rather than allow his employees to run the risks involved in continuing work? The learned judge does not seem to me to have posed this question to himself, nor was there sufficient evidence before him to have justified an affirmative answer.

The absence of any evidence that anyone in the factory during the afternoon or night shift, other than the plaintiff, slipped or experienced any difficulty or that any complaint was made by or on behalf of the workers all points to the conclusion that the danger was in fact not such as to impose upon a reasonable employer the obligation placed upon the respondents by the trial judge.’

Parker v PFC Flooring Supplies Ltd

[2001] EWCA Civ 1533

CA POTTER LJ

“The judge dealt with those issues comprehensively in the following passages of his judgment. I turn to page 9, line 22:

“In addressing the question whether the company ought reasonably to have foreseen that one of its employees might decide to climb on to the roof for some reason, I remind myself of the size and nature of the company’s operation according to the limited evidence place before me. I have heard only from the claimant himself. The defendants called no evidence …

“The company consisted with a staff of seven, as I have already said, with their own separate jobs but to some extent sharing out the various practical jobs that arose from time to time in and about these premises. It seems to me, using ordinary common sense, that some of these tasks might well have involved briefly inspecting the exterior of the premises up to roof level, the gutters and downpipes for blockages perhaps, if not the roof surface itself. Such inspections might well have extended to the skylights, for leaks or damage, or for the removal of objects lodged or thrown or indeed blown on to them or other parts of the roof surface. The availability of the ladder facilitated such cursory inspections if not encouraged them. As already observed, I find it hard to think what else the ladder could reasonably have been supposed to have been available for. If, as I hold, a reasonable employer could have foreseen that inspections of this kind up to roof level might be carried out by the employees using the ladder, so that, for example, a fall from the top of the ladder could have been foreseen, is it to be said that the action of a conscientious employee in momentarily leaving the ladder and climbing on to the roof to remove some object on or attached to the roof and sustaining injury as a result, could not reasonably have been foreseen?

“In my judgment, the answer to that question must be no. It seems to me that in the circumstances of this case possible climbing on to the roof could and should have been foreseen, both in the context of the cursory inspections of the kind mentioned and also in the light of the general threat to the premises posed by vandals seen against the background of the burglary at Seven Kings. The fact that specialist contractors had been employed in the past when access to the roof had been necessary cannot, it seems to me, exclude the possibility of employees taking it upon themselves on occasions to attempt such brief or cursory inspections of their own by using the ladder provided.

“It follows, in my judgment, that the company did owe a duty of care to take reasonable steps to prevent its employees from going on to this roof and that in failing to take any such steps it was in breach of that duty. The issuing of a general prohibition or company rule wold have been one such step. Warning notices would have been another. I reject the submission that such a prohibition or rule or such notices would have been ineffective or counter-productive. Whether placed on the rear wall of the warehouse or displayed on the roof itself, such notices would have brought home to employees, including the claimant, the danger of going on to the roof and the company requirement that they should not do so for their own safety.

“I also reject the submission that the claimant would have disregarded any prohibition from his father or warning notice displayed on the premises or on or near the roof itself. I found the claimant to be a straightforward person, who was being honest and sincere when he said that he would obey his father for whom he had worked continuously since leaving school. I accept his evidence that had he been told not to go on the roof, he would not have done so, and I find no inconsistency between that and his other equally sincere answer to Mr. Pooles that he knew at the time that his father would not have allowed him to go had he asked him. It is one thing to do something you know you would be refused if you asked; but it is another thing to go against an express prohibitions. I find this claimant would not have disobeyed a clear company rule or an express prohibition from his father.

“I therefore find on the balance of probabilities that the company’s failure to take any of the steps referred to above, combined with its effective provision of the ladder facilitating access to the roof, were negligent breaches of duty which caused this tragic accident.”

In my view, those findings are unassailable.

Mr. Pooles has made a number of points on the wider implications for industry and employers of our upholding on appeal a case in which the central complaint of the claimant, as a ground-based employee, is that he was not prohibited by his employer from going on to roof of the premises at which he was employed, either at all or in leather-soled shoes. In effect he says, where will nannyism in the case of intelligent adults end? The answer to that seems to me to be that given by Mr. Prynne for the claimant. Cases of this kind are fact-sensitive and occur in a variety of situations. The over-all duty of the employer is to take reasonable steps for the safety of his employees against those types of risks which are reasonably foreseeable as likely to occur in the course of the employee’s employment, which in turn depend upon the nature, functions, restrictions and general parameters of the employee’s job and the broad areas of activity in which he is likely to be engaged or to engage himself in furtherance of his employer’s interests. If there are no circumstances reasonably likely to occur which might require or lead an employee in the course of his employment to inspect or concern himself with the roof or objects placed upon it, and if no access is provided, authorised or made readily available, that is one thing. If his job is, however, of a general nature and involves responsibility for security and may foreseeably lead him to the roof for some purpose or other of a legitimate nature, that is another.

This was a situation in which there were few hard and fast boundaries to the functions of a small band of employees. As the judge held, it was reasonably foreseeable that someone might use the ladder available on the premises to have access to the roof for some legitimate purpose. In the particular case of the claimant, his function included responsibility for security and there is no suggestion that in doing what he did, at least to the stage of reaching roof level, he was doing other than his duty; nor is it suggested that in going onto the roof he was breaking any instruction or warning he had ever received.

In those circumstance, as the judge specifically found on the evidence, the type of accident was foreseeable and the absence of any instruction or warning causative.

Broken down, Mr. Pooles’ submissions can be shortly stated as follows. He says it was not reasonably foreseeable that any inspection would take place, other than from the ground. Alternatively, if that was reasonably foreseeable, it was not foreseeable that the claimant would proceed onto the roof to inspect or to carry out any operation upon it. Again, the answer to that, in my view, is that the risk which the employer should have foreseen and against which he was required to guard was simply that of an employee having cause or at least the inclination in the course of his employment to go up on the roof for some legitimate purpose. If that was foreseeable, the fact that the detailed circumstances of the visit may not have been foreseeable does not give rise to a defence.

Secondly, Mr. Pooles says that if it was foreseeable that an employee might go up on the roof, it was in any event not reasonable to require the erection or posting of warning signs. He says that the danger of going on a roof in unsuitable shoes in such circumstances was self-evident, and that the suggestion that signs should be placed to that effect was really superfluous. He says this would equally apply to the suggested need for specific instructions to be given to the employees.

In respect of that contention, I consider that for the reasons given by the judge it was foreseeable that an inspection of some kind might be carried out using the ladder available for the purpose and, if so, it was specifically necessary to warn that no work should be done or access pursued onto the roof.

Finally, Mr. Pooles says that in any event it was not necessary in the case of the claimant’s son to issue him with any specific instruction because he knew his father’s views. So far as that argument is concerned, I read the evidence of the claimant, not as an acknowledgement that he had in mind at the time his father’s attitude, merely that in hindsight he acknowledged his father would have said no, if he had been there and asked. What is apparent is that, first, the father had never made clear that the roof was out of bounds. He did not give evidence either as to that or to the effect that his son should or would have known his views. Secondly, the judge found that if such a warning or instruction had been given, the claimant would have followed it and there would have been no accident. Thus causation was clearly established.

I would therefore uphold the judge on the issue of negligence.

There was of course an issue as to contributory negligence before the judge, who apportioned blame in the proportion 50/50. Mr. Pooles had argued before him and has urged upon us that the proportion of blame upon the claimant should have been far higher as the claimant was effectively the author of his own misfortune. Again the judge gave careful and comprehensive reasons for his finding as follows:

“I turn now to the question of contributory negligence. Mr. Prynne realistically accepts that, on any view, the claimant must be held partly to blame for this accident and that his damages should be reduced accordingly. But he says that, in applying the Law Reform (Contributory Negligence) Act 1945, the court should balance the claimant’s momentary act of folly on the one hand against the long-term systematic failure of the defendant to prevent the state of affairs leading to the accident from developing on the other. Mr. Prynne says that in those circumstances the greater part of the blame, which he puts at least at three quarters, should lie on the defendant.

“Mr. Pooles, on the other hand, consistent with his submissions as to the cause of the accident combined with the claimant’s admitted state of knowledge of the circumstances, says that the claimant was entirely to blame or, if not entirely, then very substantially.

…..

“True it is that the defendant effectively in the form of Mr. Parker senior (unhappily – for, whatever my decision in this case, he is no doubt full of regret for the accident and its consequences) had disregarded, on my findings, its safety obligations to all his employees. No one, on the evidence, had turned their mind to the foreseeable, and that led to the accident and is the foundation of liability.

“On the other hand, the claimant, it must be said, took it upon himself to go into a situation of obvious danger. As his frank and refreshingly honest evidence confirmed, he appreciated that the roof was slippery and that his leather soles were no match for its surface. He went up the ladder determined to detach the cable rather than cut it, as suggested by Mr. Stemp, and he made the conscious decision to leave the relative safety of the ladder, which was being held by Mr. Stemp, and walk on to the roof surface knowing that the skylight (at least) was fragile. The claimant was not a novice or an apprentice but an experienced employee about to take over the reins from his father whom he knew would not have allowed him to go on the roof had he asked him. On any view, his decision was foolhardy. Against that, it must be said that he was only doing his conscientious best for the company in trying to remove an obvious hazard from the roof and to do the job properly and permanently. That hazard might be said to exist in the threat both to the security of the company’s property for which he, the claimant, was effectively responsible; and also to the safety of any trespasser, whether a child or not, who might enter the company’s premises and try to use the cable to get on to the warehouse roof in order to steal from the company, with catastrophic results should he fail.

…..

“In my judgment, the claimant’s share of responsibility for this accident is substantial but it is no more and no less substantial than that of the defendant, and I think it just and equitable that liability in negligence be apportioned between the parties as to 50% each.”

It is not for this court to interfere with the finding of a judge on contributory negligence unless it considers that he was plainly in error in his finding. Fine judgments on the basis that the court might have been inclined to order a somewhat different apportionment are to be avoided. The claimant’s actions constituted the type of situation frequently encountered where an employee, properly concerned to do his job and solve a problem in the interests of an employer, is insufficiently cautious in respect of his own safety. While the judge said that the decision of the claimant to go up on the roof was foolhardy, it did not involve ignoring any previous instruction or amount to a deliberate flirting with danger of the kind frequently encountered in industrial injury cases. On the defendant’s side, the judge has found that the possibility of such an action should have been anticipated, had the employer been safety conscious rather than simply muddling through.

In my view, an apportionment of 50/50 on a rough and ready basis was reasonable and there are no sufficient grounds for disturbing the judge’s finding.

Turning briefly to the question of breach of statutory duty, the case for the claimant was that the failure of the defendant to issue instructions or institute a company rule against access to the roof or post a prohibitory or warning notice to that effect constituted a breach or breaches of the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular Regulations 13(1) and 13(3), which require that in relation to an employee’s workplace the employer shall, so far as reasonably practicable, take suitable and effective measures to prevent any person falling a distance likely to cause personal injury. A breach of Regulation 13(4) was also alleged.

Mr. Pooles for the defendants took a number of points before the judge to the effect that regulations relied on were either not applicable or not breached. In particular he submitted that despite the wide definition of “workplace” in Regulation 2, as “any premises … made available to any person as a place of work”, the roof was not in any appropriate sense within that definition. The judge found that a breach or breaches of statutory duty had been established. Mr. Pooles has raised some interesting and arguable points. However, in the light of the clear view I have formed on the issue of common law negligence, and the fact that the judge’s assessment of 50/50 contributory negligence was not varied or affected by his findings of breach of statutory duty, it is unnecessary for us to decide those issues.I would dismiss the appeal.”

Jaguar Cars Ltd v Coates

[2004] EWCA Civ 337

TUCKEY LJ

“The judge expressed his conclusion on the claim for negligence as follows:

“I have come to the conclusion that if Mr Barry had thought about it, or anybody else for that matter in his position on behalf of the defendants had thought about it before the accident, they would have seen that there was a risk that a workman, perhaps not being as careful as he ought to be, might trip up, as the claimant did, going up these stairs and, in order to guard against that, have recommended that a handrail be provided. In my judgment, there was negligence on the part of the defendant in failing to provide a handrail. That, it seems to me, was something which, if anybody had sat down and thought about it before the accident, would have been provided and failure to do so was failure to take reasonable care to protect employees such as the claimant from a foreseeable risk of injury.”

In reaching this conclusion the judge was influenced by his earlier observation that the steps were unusually deep, so that one could not get into one’s ordinary stride walking up them. Care was needed because one might miss one’s step and it might be necessary to take more than one step to get up to the next one.

The judge then considered the question of causation and decided that if there had been a hand-rail, the claimant would have used it and this would have prevented the accident. He found that the claimant would not have fallen if he had been looking at the steps, and so he had contributed to the accident.

Regulation 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 is headed “Condition of floors and traffic routes”. Paragraph (5) says:

“Suitable and sufficient handrails and, if appropriate, guards shall be provided on all traffic routes which are staircases except in circumstances in which a handrail can not be provided without obstructing the traffic route.”

The regulations define traffic route as “a route for pedestrian traffic, vehicles or both and includes any stairs, staircase, fixed ladder, doorway, gateway, loading bay or ramp.” In rejecting the claim that regulation 12(5) applied to these steps. The judge noted that this regulation only referred to staircases and said that the steps shown in the photographs could not properly be described as a staircase. The claimant does not challenge this conclusion but relies, in this court, as he did below, on the provisions of regulation 5. This regulation is headed “Maintenance of workplace, and of equipment, devices and systems.” Paragraph (1) says:

“The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.”

The judge rejected the argument based on this regulation because he said that it was concerned with maintenance and repair of such equipment as was provided and not with what should be provided. Regulation 12(5) prescribed what should be provided and there was no breach of that regulation.

……

Persuasively though these submissions are put, I do not accept them. Giving all due weight to the trial judge’s view of the matter, I cannot see how the failure to provide a handrail for these steps can be characterised as negligent. It is accepted that the fact that the defendants have provided a handrail since this accident is not of itself evidence of negligence. The photographs say it all, I think. These are the sort of steps that one sees everywhere. If the judge is right, no set of steps of this kind which carried any amount of traffic would be considered safe unless there was a handrail, perhaps in this case on both sides given the width, (47″) of these steps. These steps are solidly constructed. There are only four of them. They only rise 6 3/4″ at a time. Their generous depth, (19 1/2″), makes them easier and safer to tread on. Usually the complaint is that the treads of steps or stairs are not deep enough, so that there is a risk of not gaining a proper foothold on each step. That is not the case here. I cannot see that these steps pose any real risk, provided that those using them exercise the degree of care to be expected of anyone going up or down steps. It does seem to me that the judge has equated his finding of foreseeability of risk with a finding that there was a duty to provide a handrail, but one does not follow from the other.

Were the defendants in breach of regulation 5(1)? Mr Thompson correctly submits that the steps were part of the claimant’s workplace, that the regulation imposes an absolute obligation on the defendants to maintain the steps in efficient working order and repair, and that efficient in this context means efficient from the viewpoint of safety and not from the viewpoint of productivity or economy. Mr Thompson then says that because there was no handrail the steps were not in efficient working order and so there was a breach. I cannot accept this submission for the same reasons as the judge gave. As its heading and content makes clear, regulation 5 is concerned with maintenance. One must look elsewhere in the regulations to see what is required to be provided. Regulation 12(5) says when handrails should be provided. It is now accepted that this regulation did not require a handrail to be provided for these steps. Looking at the other provisions of regulation 12 one can see that it is directed to the construction of the workplace including the provision of handrails and guards and the like to make those places safe.

For these reasons I think that the judge should have dismissed the claimant’s claim. The cross appeal against his finding of contributory negligence does not therefore arise.

These conclusions obviously mean that the claimant will not receive the damages which he was awarded. I am sorry about that, but my sympathy for the claimant cannot compel the conclusion that the defendants were legally liable for his accident when I do not think they were. I would allow this appeal, set aside the judge’s order and substitute an order that the claimant’s claim be dismissed.”

Wilson v Tyneside Window Cleaning Co

[1958] EWCA Civ 2 [1958] 2 All ER 265, [1958] 2 QB 110, [1958] 2 WLR 900

Pearce LJ

“In a long and careful Judgment, he dealt with all the relevant facts and all the contentions put forward by the Plaintiff. Mr. Waller, in his very fair and careful argument for the Appellant, bases his contentions on two main grounds: first, that it is the duty of the Defendants to provide a place of work as safe as reasonable care and skill can make it. The accident (he says) shows that this place of work was not safe. That duty is always on the Defendants, whether delegated or not, as is shown by the case (in particular) of Wilsons & Clyde Coal Company Limited v. English (1938 Appeal Cases, page 37). He relies on Biddle v. Hart (1907 1 King’s Bench, page 649) and on a dictum of Lord Justice Denning in Christmas v. General Cleaning Contractors Limited (1952 1 All England. Reports, page 39), as showing that the employer’s duty of care as to the safety of the place of work extends even to premises over which he has no control; and he argues that the decisions in Taylor v. Sims & Sims (1942 2 All England Reports, page 373) and Cilia v. H.M. James & Sena (1954 1 Weekly Law Reports, page 721) are wrong in so far as a contrary view was taken. On the basis that the responsibility for providing a safe place of work remains on the master even though ha has no control of the premises, Mr. Waller contends that at the least a preliminary inspection to ascertain the dangers is available to the master and that in this case the Defendants were negligent in not so inspecting and in not providing a safe place of work for the Plaintiff.

…..

PARKER LJ

“I think that this ease is a very good example of the difficulties that one gets into in treating the duty owed at Common Law by a master to his servant as a number of separate duties. Thus, it is often said (as it is said in this case) that the master owes a duty to make the place of employment as safe as reasonable skill and care will permit. Again, it is said that it is the master’s duty to make the plant and tools as safe as reasonable skill and care will permit; and again it is said that it is the master’s duty to devise and lay down a safe system of working.

Approached in that way, questions at once arise as to whether, and if so to what extent, any of those duties extend (in the case of premises) to premises not occupied or controlled by the master, or (in the case of plant and tools) to plant and tools bought from responsible and reputable suppliers or manufacturers – bearing in mind, as has been laid down so often, that in each case the duty is a duty personal to the employer, in the sense used in Wilsons’ case. It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but for myself I prefer to consider the master’s duty as one applicable in all circumstances, namely, to take reasonable care for the safety of his men, or, as Lord Herschell said in the well-known passage in Smith v. Baker, to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk.

That general duty applies in the circumstances of every case; but the governing words “reasonable care” limit the extent of the duty in the circumstances of each case. Accordingly the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary.

That, as it seems to me, is the true principle, and is consistent with the decision of this Court in Biddle v. Hart (1907 1 King’s Bench, page 649). As I said in Davie v. New Merton Board Mills, I very much doubt whether the decisions in Taylor v. Sims & Sims and Cilia v. James & Sons are correct decisions in so far as they said that in circumstances such as these there is no duty in respect of the safety of the promises. It seems to me also that those statements are inconsistent with a passage in the Speech of Lord Wright in Thomson v. Cremin (1953 2 All England Reports, page 1185), the passage being at page 1192).

Mr. Waller relied strongly on the dicta of Lord Justice Denning in the case of Christmas v. General Cleaning Contractors Limited (1952 1 King’s Bench at Page 148); but in my judgment those were dicta, and in so far as Mr. Waller said that those remarks implied that there was a duty to make promises in the occupation of a third party safe I do not think that they can stand with the decisions to which I have referred* Bearing that in mind, it seems to me that there is nothing in this case on which one can say that the general duty, so far as it relates to premises, has been broken.

One can conceive cases of a very old, dilapidated building, or a building which is known to have suffered war damage or is dilapidated in some other respect, where one could say that it was the duty of an employer to see that it was made safe or, if it could not be made safe, if necessary to forbid his workmen to go there and work. But there is no suggestion of that in the present case.

So much for Mr. Waller’s first contention. His second contention is based on an allegation that in various respects there has been a breach of the sub-division of the duty which relates to an unsafe system of working. I think this must be right: that in so far as what one may call the first division, the making the premises sage, cannot be fully performed — as when they are in the possession of a third party, it behoves the master to exercise all the more care in regard to his system of working.

In regard to the system of working, various points are taken. It is said firstly that it was the duty of the master, albeit that he could not make the premises safe, to inspect them either each time the workmen went on the job or at any rate twice a year in the course of a contract such as this. That, of course, overlaps to some extent what I have already said in regard to the first contention; but in so far as it is based on an unsafe system of working it seems to me that the answer here is that there is no suggestion that there is any practice in the trade in that regard. No doubt a master will inspect the premises generally with a view to estimating for the job in the first instance; but there is no practice in the trade whereby he must make a periodic inspection.

Secondly, it is said that reasonable care demanded in this case that there should be repeated warnings given to the Plaintiff of the danger of windows sticking and of handles coming off. In fact in the present case there not only has been no repeated warning, but no initial warning. But the circumstances here are these: this is a man who was 56 years of age, I think, at the time, and who has been all his life a window cleaner: he is a very experienced man, usually acting as a charge-hand, and he knew — and he frankly said that he knew — of the dangers involved, of handles coming off. It is said that he should have been told – one witness suggested that it should be impressed upon him twice a year — again and again. For my part, I would like to adopt entirely what Mr. Justice Donovan said on that point. It seems to me that the disadvantages of doing that in the case of skilled men of this sort may well outweigh the advantages; and for my part I cannot think that “reasonable care” demands a repeated warning to skilled man in a case at any rate such as this, where the dangers involved are patent. It is not a case that one sometimes comes across of the danger of silicosis from particles of dust which are quite invisible and cannot be seen. I do not know, but it may well be that in such cases “reasonable care” would demand that the employer should warn and exhort the men constantly to wear masks. But there, as I have said, the danger is not patent.

Lastly, it is said (and for my part I think that this is the strongest way that Mr. Waller can put his case) that there ought to have been general instructions that in the case of all sash windows men should clean them from the inside first and, while inside, should see that the top sash will come down – in other words, that it is not stuck; and that in the case of a window the handles of which are suspect it is actually opened while the men are inside. That, however, was a suggestion made by only one witness, who I do not think had any experience of window cleaning whatsoever. There is no suggestion that there is any settled practice in the trade for the giving of such instructions. Accordingly, one would have to say (adopting the words so often used) that it would have bean folly on the part of a prudent employer not to give such instructions. For my part, I am quite unable to say that in that regard the Plaintiff has made out his case.

For these reasons, as well as the reasons given by my Lord, I would dismiss this appeal.”

General Cleaning Contractors Ltd v Christmas

[1952] 1 KB 141, [1953] AC 180, [1952] 2 All ER 1110

Lord Oaksey

‘In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workmen. It is, I think, well known to employers, and there is evidence in this case that it was well known to the appellants, that their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts. They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.

The risk that sashes may unexpectedly close, as the sashes in this case appear to have done, may not happen very often, but when it does, if the workman is steadying himself by a handhold, his fall is almost certain. If the possibility is faced the risk is obvious. If both sashes are closed there is no longer the handhold by which the workman steadies himself. If either sash is kept open the handhold is available and, on the evidence in this case, is, in my opinion, reasonably safe. But the problem is one for the employer to solve and should not, in my opinion, be left to the workman. It can be solved by general orders and the provision of appropriate appliances.’

Lord Reid

‘The question then is whether it is the duty of the appellants to instruct their servants what precautions they ought to take and to take reasonable steps to see that those instructions are carried out. On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not a sufficient answer. Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calls for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required.’

Morris v West Hartlepool Steam Navigation

[1956] AC 552

Lord Morton of Henryton (dissenting)

‘My Lords, in the face of this evidence, I would find it difficult to hold that a guard-rail round the hatch was a thing which was ‘so obviously wanted’ that the owners and master of the Daltonhall, and inferentially the owners and masters of all the ships of a similar type on which these four experienced witnesses had sailed, were guilty of folly in failing to ensure that such a rail was erected.’

Lord Reid (majority)

“It was argued that, whether the practice of leaving the hatches unprotected was good or bad, the respondents were entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. I would agree that, if a practice has been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own case in all material respects. This part of this case has caused me considerable difficulty, but I do not think that it has been proved that the circumstances were similar where the practice prevailed . If it ought to have been foreseen in this case, as I hold it ought, that men might be sent near this hatchway during the remainder of the voyage, I do not think that the respondents can rely on this practice as having absolved them from the duty to consider whether guard-rails ought to be put up.’

‘It is the duty of an employer in considering whether some precaution should be taken against the foreseeable risk to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, on the other hand, the difficulty of expense and any other disadvantage of taking the precaution.’

Lord Cohen ‘When the court finds a clearly established practice ‘in like circumstances’ the practice weighs heavily in the scale on the side of the defendant and the burden of establishing negligence which the plaintiff has to discharge is a heavy one.’

Hannington v Mitie Cleaning (South East) Ltd & Anor

[2002] EWCA Civ 954

CA PILL LJ

“This is an application for permission to appeal against a judgment of His Honour Judge Anthony Thompson QC given at the Portsmouth County Court on 24th January 2002. The j

dge dismissed a claim for damages for personal injuries made by Mr Stanley John Hannington, the applicant.

The applicant was a general odd job man working for the first defendants, Mitie Cleaning (South East) Ltd, who had a cleaning contract with the second defendants, De La Rue Cash Systems Ltd, at their factory premises in Portsmouth. One of his jobs was to collect up the rubbish and waste in the yard of the premises and empty it into skips. On 27th October 1997, which was a windy day, he took a dustbin which contained waste, cardboard and paper material and attempted to empty the bin into a plastic waste disposal bin which was provided by a different company. The judge stated in his judgment that precisely what happened is unclear, but he came to the conclusion that a gust of wind brought the plastic lid of the bin down towards the applicant as he was placing the rubbish into it. The bin was on a platform about two feet high. In some way the claimant fell from the platform as a result of the lid coming down and sustained injury. I say “as a result of” because the judge did not make a finding on causation adverse to the applicant. He appears to have taken the view, at least sufficiently for present purposes, that the fall which occurred was causatively connected with the lid coming down.

The judge found that the claimant was an honest man. He referred to the allegations against the defendants, the first defendants being sued as employers and the second as occupiers of the premises. He referred to the allegations that there was a design fault in the bin and that there was a failure to train or warn the applicant to inspect the skip on a regular basis. Breach of statutory duty was alleged under the Use of Work Equipment Regulations 1992 and the Employers Liability (Defective Equipment) Act 1969. It was submitted that the second defendants were in breach of their duty under the Occupiers Liability Act 1957. The judge concluded that the suggestion that the lid of the skip was in some way defective was completely untenable. In reaching that conclusion he had regard to the absence of any securing catch. The judge noted that the applicant when giving evidence said that the lid had never blown on him before and that he had never seen or known the lids to blow down in that way. Another witness, Mr Mortimer, a fellow employee, did say that twice when he was doing this work the lid had come down.

The judge concluded:

“Both [the applicant] and Mr Mortimer were realistic about it and basically what their evidence came to was this, that this was the sort of job where you used your commonsense, and I think really that is about the measure of it. Mr Mortimer said, having mentioned the couple of occasions when the lid had blown down, that he could not remember telling anyone about it, either from Mitie, his employers, or De La Rue, and I think the reality of the situation was that neither Mr Hannington nor Mr Mortimer regarded this as a particular hazard. …

For my part I cannot see that there is anything negligent on the part either of the employers or of the occupiers of these premises in these circumstances. It seems to me one of the ordinary hazards of life that on a windy day things do blow about ….”

The judge said that there was no breach of duty. He went on to say, in relation to the claimant:

“… one has to take precautions accordingly.”

Mr McCormick submits that the judge has brought a new concept into the law by referring to the ordinary hazards of life. I do not consider that the judge was doing that. What the judge was holding was that in all the circumstances of this case there was no breach of duty in failing to provide a secure means of keeping the lid open. That was the way in which the judge saw the evidence and the circumstances. Ordinary hazards of life may or may not involve a breach of duty by employers or occupiers. There will be ordinary hazards which, by reason of their commonness or by reason of the serious consequences which may result from their occurrence, an employer or occupier is under a duty to take precautions against. I cannot conclude that the judge was saying that, merely because something was an ordinary hazard, it could not involve a breach of duty. He was considering the precise situation. In the judge’s view there was no breach of duty. Of course, there is breach of a duty by way of negligence only if a risk is such that employers or occupiers ought reasonably in the circumstances to take precautions to protect their employees or visitors against it.

I would grant permission to appeal in this case. I do so on the basis of two pieces of evidence which were given. I should say that this is a renewed application. I refused permission on paper without having seen the transcripts, for reasons which appear on the appropriate form. Having referred to the evidence of Mr Mortimer and to the circumstances, I said:

“The judge was in my view entitled to conclude that there was no breach of duty. The fact that changes were made after the accident does not establish that there was a breach of duty at the material time.”

Mr McCormick understandably relies upon the fact that action was taken after the accident and he refers to the document – it is not necessary to consider its precise provenance – at pages 65 and 66 of bundle C, in which it was stated:

“Due to the design of the skip I would suggest a simple locking mechanism be manufactured from mild steel to secure the locking arm from falling whilst the skip is in use.”

In the course of argument I referred to that as a De La Rue document. Having looked at it again, I am not sure that that is the case.

Evidence was called on behalf of the defendants and the witnesses were of course cross-examined by Mr McCormick. Mr Dyson was asked about the use of the skip:

Q.I am just suggesting to you that at all times, whoever supplied the skip, the user and hirer of the skip has a responsibility for ensuring that it is being operated safely and is in a safe condition.

A.Yes. …

Q.We have a skip with a lid mechanism that seems pretty daft, does it not, when one stops to think about it?

A.Yes.

Q.That skip, with that lid mechanism, was there for quite a number of months, maybe a year or so.

A.Yes. …

Q.And it would seem that no one really paid any attention to it until such time as he was injured by it, would it not?

A.Yes, that would appear to be the case.

Q.Which is all rather unfortunate, is it not?

A.It is very unfortunate, yes.

Mr Balay was cross-examined about risk assessment. It was put to the witness:

“Q.It wasn’t secured from the ground or to the base or to any stable structure. It was just standing more or less upright at something approaching 90 degrees and could have fallen down with relatively little force being applied to it, could it not?

A.I cannot disagree with what you are saying.”

Mr McCormick had attempted to base a case upon the unsuitability of the two foot high platform, but the judge, rightly in my view, said (and repeated in his judgment) that there was no case in the circumstances based on that. The questioning continued:

“Q…. I suggest that had someone who had been charged with doing a risk assessment looked at it, it is a point that would have been obviously and readily picked up. Would you agree with that?

A.Yes. But, as I said earlier, I really do believe that the situation had been evaluated. It just had not, unfortunately, been documented on a risk assessment.

Q.Yes, but do you agree with me that had someone done a risk assessment of that particular operation before the accident they would have realised that there was an obvious danger there?

A.Yes.”

The learned judge did not deal with those answers in his judgment. In my view the claimant has an arguable case on the basis of those answers, coming as they do from the defendants’ witnesses. I say no more than that. It is clear from my written refusal of permission that, upon a reading of the judgment itself, it appeared to me that the judge was entitled to say that in all the circumstances the extent of the risk in relation to this plastic cover falling was not such that there was a breach of duty either by the employers or by the occupiers. I would grant permission against both defendants. I have raised with Mr McCormick the possibility that, even if he succeeds against one but not the other, his client is at risk of paying the costs of the other. He proceeds with his application in that knowledge.

Subject to one point, permission is given generally. He also claims, as I have mentioned, that there was a breach of statutory duty in that the equipment was unsuitable; and that point can also be argued. Permission is not, however, granted on a point which had considerable prominence in Mr McCormick’s first skeleton argument but which has not since been pursued. That is the question of a fair trial in relation to the attendance of a medical witness to be called by the claimant which it is submitted was not treated properly by the judge. That had, it was submitted, an impact upon the judge’s approach to the question of liability. Permission on that ground is refused.

There have been two oral applications. I say no more than that the second was necessary because a long skeleton argument which referred to the transcripts arrived with me only on the morning of the date fixed for the last application and it was not possible within the time allotted on a busy day to consider the question. I would consider it preferable had those appearing for the claimant waited for the arrival of the transcripts before requesting the application to be listed. I would expect the office to have co-operated.”

Coxall v Goodyear Great Britain Ltd

[2002] EWCA Civ 1010 [2003] ICR 152, [2002] IRLR 742, [2003] WLR 536,

CA Lord Justice Simon Brown:

“This is the defendants’ appeal, brought with the permission of the judge below (His Honour Judge Rundell), against his judgment in the Walsall County Court given on 9 November 2001, awarding the claimant (the respondent) damages of £7,500 together with interest and costs. The damages were awarded for occupational asthma suffered by the respondent through working as a paint and line operator at the appellants’ tyre factory at Wolverhampton.

…..

The appellants challenge the judge’s holding that they were under an obligation to take the respondent off the job. That is the critical, indeed sole, ground of appeal. Mr Beard’s central contention on their behalf is that “an employer is not under a duty to remove an employee from safe work, still less dismiss him, because he is not suited to the work”. Rather, he submits, it is for the employee to decide whether or not to take the risk of continuing in his job. A series of Court of Appeal decisions, notably Withers -v- Perry Chain Co Limited [1961] 1 WLR 1314, Kossinski -v- Chrysler United Kingdom Limited (1973) 15 KIR 225 and Henderson -v- Wakefield Shirt Company Limited [1997] PIQR P413, is said to be authority for that proposition. Let me briefly consider each of those three cases.

The plaintiff in Withers was an employee with dermatitis who returned to work when it was known both to him and his employers that his continuation to work would give rise to a small risk of dermatitis recurring or being exacerbated. The Court of Appeal allowed the employer’s appeal against the trial judge’s award of damages. At p 1317 of the judgment Sellers LJ said this:

“… the defendants gave her what they thought to be the best available work they had. In fact, if she had not taken that work it would seem that she would not have worked at all and would not have earned any wages, which apparently she sought to do. I cannot believe that the common law requires employers to refuse to employ a person who is willing to work for them simply because they think that it is not in the person’s best interests to do the work. That would be imposing a restriction on the freedom of the individual which I think is foreign to the whole spirit of the common law of our country.”

At p 1319 he added:

“… there is no duty at common law requiring an employer to dismiss an employee rather than retain him or her in employment and allowing him or her to earn wages, because there may be some risk. The duty of the defendants in this case was to take all reasonable care for the plaintiff in the employment in which she was engaged, including a duty to have regard to the fact that she had had dermatitis previously. Beyond that I do not think the common law can be invoked.”

Devlin LJ said at page 1320:

“In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work which he or she is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so – as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run.”

The plaintiff in Kossinski sustained injury to his elbow whilst removing paint with compressed air. Some months previously he had been diagnosed as suffering from tennis elbow. He claimed damages on the basis that he had been allowed to return to work of a kind likely to aggravate his injury. That claim failed both at first instance and on appeal. Following the approach set out in Withers, Edmund Davies LJ at p 229 said this:

“It requires no authority to illustrate the cogency of the proposition that the duty of reasonable care does not impose upon an employer the necessity of saying to an employee: ‘You are not fit for this properly-planned and entirely safe work because of your own physical condition, and therefore, despite your own desire to continue at it, we must dismiss you’

Indeed, in the light of such cases as Withers … [that] would have been an unacceptable submission …. In certain cases a duty of warning by the employers may arise, but it must depend upon the circumstances of the case.”

James LJ added at p 231:

“When the man himself made no complaint, I do not think that it was incumbent on the employers to conduct an investigation as to what, if any, other alternative work was available for him or to give him such warning that if he wanted to continue with his work he would do so at his peril.”

In Henderson the plaintiff’s job was as a final presser to iron shirts at the defendant’s factory. In 1991 she developed a painful stiff neck, consulted her GP, and was off work for a couple of months. In July 1992 she was again off work for a fortnight with neck pain, stiffness and tendonitis in the right shoulder. In January 1993 she was transferred to different work. The trial judge awarded her damages on the basis that when her symptoms emerged and she complained to her employers, they were under a duty to take her off the job. On the basis of the earlier authorities the employers were successful in their appeal. Kennedy LJ concluded that they had not been under a duty to offer the plaintiff a wholly different job any earlier than they did. Sir Ralph Gibson said at p 420:

“It is, in my judgment, impossible to hold on the material before the judge that the defendants were in breach of any duty whatever in March 1991. It would be to hold that the defendants were obliged, when the plaintiff reported that she suffered pain in doing work which was safe, to take her off that work. There is no such duty in law: see Withers -v- Perry Chain [1961] 1 WLR 1314. The plaintiff knew she was suffering pain in or after doing the work and there was no advice that she needed or which would then have assisted her. She knew in June that it was her work which was causing the pain, but she had not been advised by her doctor that she should not do it.”

The judge below, having considered those authorities, indicated that if he were to accept them, then the respondent’s claim would fail. He continued:

“I am not, however, inclined to follow this [line of] authority for the reasons submitted to me by Mr Hunjan that the authority relating to dismissal of employees is now forty years old. A lot has changed in the world of employment since 1961, not the least the COSHH regulations. Duties and obligations on employers are now much more stringent and it seems to me in 1996, because that is the time that I have to consider, in circumstances where a company doctor advises that an employee be moved, where a health and safety manager concurs with that suggestion and where the manager himself said that had he been aware of the advice he would have accepted that advice, it seems to me that failure to follow that advice, either to move or in the final analysis to dismiss the employee, does constitute a breach of the employer’s duty and … if the employee suffers an exacerbation of his illness or condition then that exacerbation is actionable.”

Judge Rundell later gave permission to appeal on these terms:

“Limited to the question whether, in the light of the evidence, the decision in Henderson was binding on me. I took the view that it was not and that it was distinguishable on the facts of the instant case.”

Before turning to the rival arguments on the appeal, it is convenient first to refer to one further authority, this Court’s recent decision in Hatton -v- Sutherland [2002] EWCA Civ 76, [2002] 2 All ER 1, a decision on four conjoined appeals and a guideline case with regard to the circumstances in which employers are liable for an employee’s psychiatric illness caused by stress at work. For present purposes it is, I think, sufficient to cite paragraph 34 of the Court’s judgment:

“Moreover, the employer can only be reasonably expected to take steps which are likely to do some good. This is a matter on which the court is likely to require expert evidence. In many of these cases it will be very hard to know what would have done some let alone enough good. In some cases the only effective way of safeguarding the employee would be to dismiss or demote him. There may be no other work at the same level of pay which it is reasonable to expect the employer to offer him. In principle the law should not be saying to an employer that it is his duty to sack an employee who wants to go on working for him for the employee’s own good. As Devlin LJ put it in Withers -v- Perry Chain Co Limited [1961] 3 All ER 676 at 680, [1961] 1 WLR 1314 at 1320:

‘The relationship between employer and employee is not that of schoolmaster and pupil … the employee is free to decide for herself what risks she will run … if the common law were to be otherwise it would be oppressive to the employee by limiting his ability to find work, rather than beneficial to him.’

Taken to its logical conclusion, of course, this would justify employers in perpetuating the most unsafe practices (not alleged in that case) on the basis that the employee can always leave. But we are not here concerned with physical dangers: we have already rejected the concept of an unsafe occupation for this purpose. If there is no alternative solution, it has to be for the employee to decide to carry on in the same employment and take the risk of a breakdown in his health or whether to leave that employment and look for work elsewhere before he becomes unemployable.”

Not surprisingly, Mr Beard for the appellants relies on the court’s reiteration there of the Withers principle and its reference to the employee having to decide whether or not to take the risk to health involved in continuing work, whereas Mr Hunjan QC for the respondent emphasises the court’s observation that “we are not here concerned with physical dangers”, the court having already referred in paragraph 11 of its judgment to the “several differences between this [psychiatric illness through stress] and other kinds of work-related harm, such as injuries suffered in accidents at work or illnesses caused by exposure to deleterious physical conditions at work.”

……

For my part, I readily acknowledge that conflicting principles, perhaps even philosophies, are here in play. On the one hand is the principle expressed by Sellers LJ in Withers that “imposing a restriction on the freedom of the individual … is foreign to the whole spirit of the common law of our country” (or, as Devlin LJ put it, “the relationship between employer and employee is not that of a schoolmaster and pupil”). On the other hand employers clearly must bear some overall responsibility for the health and safety of their workforce.

How, then, is the undoubted tension between these principles to be resolved? To my mind this can only be achieved by reference to the individual facts of each case. Powerfully though Mr Beard’s arguments were advanced, I think in the end they go too far and prove too much. I simply cannot accept the Withers principle in quite the absolute terms he suggests, namely as a principle in no way dependant upon the magnitude of the risk in question. If the appellants’ argument here were sound, it would follow that employers would be immune from liability even, say, if they retained as spidermen employees whom they knew to suffer intermittently from vertigo or epileptic fits. That cannot, I think, be right.

Rather it seems to me that the principal consideration in determining whether or not any particular case falls within the Withers principle must be the actual nature and extent of the known risk. The risk in Withers itself, be it noted, was variously described in the judgments as “some risk” (Sellers LJ: “there may be some risk”), “a slight risk” and “a small risk”. Kossinski concerned only a tennis elbow. The plaintiff in Henderson had not even been advised by her own doctor to stop work.

How then do matters stand in the present case? I confess I have not found it an altogether easy one. For my part I regard the Withers principle as no less effective today then when it was first adumbrated. True it is that employers’ responsibilities towards their workforce have grown down the years. But society’s increasing respect for an employee’s autonomy to my mind represents a countervailing consideration. And the risk of precipitating claims for unfair dismissal is by no means to be discounted.

All that said, however, cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will nevertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger. The spiderman example I have given above is an obvious one. The present case, of course, is very much less obvious. I conclude, however, that in this instance too the duty arose. It is a striking feature of this case that all three of the appellants’ staff most directly concerned with the respondent’s welfare (the works doctor, the line manager and the health and safety manager) all thought that he should cease work – the evidence of the two managers being that, had they known (as plainly they should have known) of Dr Barnes’s view, they would have taken the respondent off his job. True, as Mr Beard argues, their evidence alone cannot dictate the extent of the appellants’ duty. But if they themselves regarded the respondent’s cessation of the work as necessary, and inferentially as their responsibility, I see no good reason for the court to regard them as having been under any lesser duty. It is essentially on this basis that I regard the judge below as having been entitled to distinguish the Court of Appeal line of authority. In none of those three cases was the position reached where the employers came to recognise that their employee should no longer continue in the work. Far from it.

It follows that, in my judgment, whilst the judge was wrong to decide (if, indeed, he did) that the Withers principle was not binding upon him, he was nevertheless correct in concluding that the appellants were negligent in having failed to follow their own doctor’s advice (because, of course, they had not received it) and failed “either to move or in the final analysis to dismiss” the respondent.

By way of footnote I add just this. No case in contributory negligence was pursued here on the footing that the respondent himself was partially to blame for his own injury in having chosen to continue at work despite knowing of the risk involved and of Dr Barnes’s express advice to his manager that he should stop working. I say no more than that, had it been, it might well have relieved the appellants of part of their liability.

That, however, is essentially by the way. For the reasons earlier given I would dismiss this appeal.”

Hickey -v- McGowan & ors

[2017] IESC 6

Supreme Court

Denham C.J., O’Donnell Donal J., MacMenamin J., Dunne J., Charleton J.

Judgment by:

O’Donnell Donal J.

The Hearing

16 The hearing commenced in November 2012, and occupied eight days in the High Court. The plaintiff’s case focussed essentially on matters of fact. This may have been a consequence of the fact that unusually the second named defendant was represented in the proceedings and adopted an approach bearing similarities to the defence in the criminal trial and which involved a stubborn refusal to concede anything. It may have been assumed, therefore that the difficult issue was proof of abuse as a matter of fact, and that once established it would be follow that the first defendant would be liable. However, the first named defendant for its part raised a number of technical and substantive issues. Counsel for the first named defendant has suggested that the emergence of the judgment in the CCWS case just days before the commencement of the hearing was treated by the plaintiff as a form of deus ex machina which solved all legal problems. Counsel for the plaintiff in this Court (who it should be said was not involved in proceedings before this appeal, and who argued the appeal with skill and tenacity) sought to advance the narrow argument that while the evidence was sparse, there was enough evidence to permit the High Court to reach the conclusions it had, and those conclusions were now effectively beyond challenge in this Court. I cannot agree that this narrow approach is a satisfactory way to resolve an already tangled case. It is necessary therefore to address in some detail the argument advanced by the first named defendant.

17 The evidence on the question of the organisation of the Order and the interaction of the Order with the school, was sparse indeed. Discovery had not been sought. The only evidence on the issue seemed to be gleaned indirectly from the evidence of the second named defendant himself, and from Canon Hever who was the manager of the school. Apart from seeking to exploit evidence from these witnesses (who had not been called by the plaintiff) the plaintiff adduced direct evidence from a theologian recruited apparently only a day or two before the High Court hearing began. That evidence was at a level of exceptional generality about the constitution of religious orders. Given the dearth of evidence the first named defendant argues that the plaintiff and subsequently the High Court, were driven to rely on the decision in CCWS not just as providing a template for legal analysis, but even to fill the evidential gaps in the case. There is in my view more than a little merit in this criticism.

18 The first named defendant argues that O’Keeffe v. Hickey requires “intense concentration” on the facts of the case to allow a conclusion to be drawn on the controversial issue of vicarious liability for sexual abuse carried out by another party. Nothing further from such intense scrutiny of the facts could be imagined, it was said, than the threadbare fragments of evidence gathered together in this case. The first named defendant contends that there was simply no evidence allowing the Court to conclude that the school was under the control of the Marist Order, particularly when there was a manager in place who had a legal obligation to run the school and who was in law the employer of the second named defendant. Furthermore, the first named defendant argued that the CCWS case was itself in fact a vivid illustration of the inadequacies of the plaintiff’s case here. There, a large number of individual defendants had been sued, discovery obtained, and detailed evidence given as to the operation of the school and the involvement of the various parties in it. In addition, important concessions were made by the representatives of the religious order in that case. Furthermore, and in any event, the defendant contended that the factual and legal circumstances involved in the CCWS case, were markedly different. If, as was agreed, the issue involved intense concentration on the facts, then it was argued it was an impermissible departure from such an approach, to treat the CCWS case as analogous to this. In particular, CCWS involved a residential school for troubled children who were particularly vulnerable. The staff, in that case the religious brothers, were on the site and in close contact with the children 24 hours a day, and provided a form of parental care. Here by contrast, the case involved a standard national school which was a day school in a substantial provincial town in Ireland. There was no suggestion that the children were particularly vulnerable. Contact was during school hours and as teachers. It negated the intense scrutiny approach emphasised by O’Keeffe v. Hickey if fundamental factual distinctions like this were to be ignored. Finally and in any event the first named defendant argued that even if the Court were to consider that the facts of CCWS were sufficiently close to this case to make it available as a precedent, the Court should nevertheless not adopt the approach in CCWS, which, it was argued was unduly vague and unprincipled.

19 The CCWS case is undoubtedly an important case in a sequence of recent cases at the highest level in courts of common law countries concerning the difficult question of liability for sexual abuse of children. However, a useful starting point in this jurisdiction is in my view the decision of this Court in O’Keeffe v. Hickey. That case involved a claim against a school teacher and the State parties, for sexual abuse carried out in a national school. Judgment in default of pleadings was obtained against the school teacher. The only issues therefore remaining in O’Keeffe v. Hickey were in regard to the direct liability or the vicarious liability of the State parties. Significantly, proceedings had not been issued against the manager or patron of the school, there, as in most cases, the local parish priest and bishop respectively. The case involved a very careful analysis of the unique structure of national schools in Ireland pre-dating independence. The High Court dismissed the plaintiff’s claim for direct liability on the part of the State parties for negligence in the management or inspection of the school. That decision was not appealed. Accordingly the only issue in the Supreme Court was whether the State was vicariously liable for the wrongdoing of the principal which for the purposes of the proceedings was now established. Geoghegan J. was prepared to hold that the State parties were vicarious liable for the sexual abuse. The majority of the Court however dismissed the claim. Two substantial judgments were delivered by Fennelly and Hardiman JJ. which came to the same result but for very different reasons. It is I think clear that it is the judgment of Fennelly J. (with whom Murray C.J. and Denham J. (as she then was)) which represents the majority view on the law of vicarious liability for sexual abuse. However, Hardiman J.’s powerful judgment (with which Murray C.J. also agreed) is in my view very useful in identifying the critical issues argued and determined in the Supreme Court, and casts a useful light on the judgment of Fennelly J.

20 Hardiman J. reviewed the development of the law of vicarious liability. He pointed out that vicarious liability represents liability without fault for the wrongful acts of another. It is a threshold question in any case in which the law of vicarious liability is sought to be expanded, to determine why a person or body who may be liable if shown to be at fault, should be made liable without fault or culpability of any kind. The classic case of vicarious liability is the responsibly of an employer for the acts of an employee. There is of course no difficulty in imposing liability on an employer whose employee acts on his or her instructions. But liability could also attach for unauthorised acts, and indeed acts contrary to the employer’s instructions. The test was first formulated by the distinguished authors of Salmond and Heuston on the Law of Torts, and repeated for much of the 20th century. It is set out, for example, at pp. 521 to 522 of the 19th edition, Heuston & Buckley, Salmond and Heuston on the Law of Torts (London: Sweet and Maxwell, 1987) as follows:

“An employee’s wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes – although improper modes – of doing what has been authorized: Canadian Pacific Railway Co v. Lochart [1942] A.C. 591 at 599.”

This test contemplates some liability for unauthorised acts, but is still quite strict: the act may not have been expressly or impliedly authorised by the employer (indeed may have been forbidden by him or her) but liability may attach but only if the act is viewed as a “mode – although improper mode – of doing what has been authorized”. It is apparent that sexual abuse of a pupil by a teacher cannot on any version be considered to be merely an improper mode of doing the authorised task of teaching and nurturing a child. It is indeed the antithesis of what was authorised and intended, and amounts to a serious criminal offence. It is apparent therefore, that liability cannot attach to an employer for sexual abuse if the Salmond test is maintained.

21 In essence, Hardiman J. considered that the Salmond test should be maintained as he considered that the policy justifications underpinning it were justified, whereas he was sceptical of more expansive approaches which had found favour in other jurisdictions and among textbook writers on the basis that they ensured recovery of damages by a plaintiff who had suffered significant injury. At paragraph 41 of the judgment he said:

“I do not feel the unqualified enthusiasm which the authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling house) does not in and of itself, in my opinion, convert him, her or it, into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.”

(p.317)

22 Fennelly J.’s judgment can usefully be read in the light of the trenchant position adopted by Hardiman J. Fennelly J. pointed out that it was already well established law that an employer could be vicariously liable for the wrongful acts of an employee including criminal acts: Lloyd v. Grace, Smith & Co. [1912] 1 A.C. 716 and Johnson & Johnson (Ireland) Ltd. v. C.P. Security Ltd. [1985] I.R. 362. On balance, Fennelly J. was prepared to apply the close connection test which seemed to have been adopted by the majority of the House of Lords in Lister v. Hesley Hall Ltd. [2002] 1 A.C. 215 and the majority of the Canadian Supreme Court in Bazley v. Curry (1999) 174 D.L.R. (4th) 45:

“Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. . . The close connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J. [in Delahunty v South Eastern Health Board [2003] 4 I.R. 361] provides an excellent example of a practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley v. Curry (1999) 174 D.L.R. (4th) 45 the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.”(p.378)

23 The power and depth of analysis in both judgments is apparent, but the significant divergence between them is obscured somewhat by the fact that the two judgments came to the same conclusion in O’Keeffe v. Hickey: the State parties were not vicariously liable for the criminal acts of the principal school teacher. On the facts of the case, it might be said that there was a connection and perhaps even a close connection between the abuse and the teaching – although as Fennelly J. observed the abuse took place during private lessons outside school time – but there was no sufficiently close connection between the State parties who were the defendants and the teaching in question. The result of the case was therefore heavily influenced by the distinctive structure of national school teaching in Ireland. In particular the existence of a management system which had both control over the teacher and was his employer, was particularly important. The existence of this employer weighed heavily against the State having vicarious liability on the analysis in both judgments.

24 Notwithstanding this coincidence of result, it is apparent that the reasoning of the two judgments diverges sharply and in an appropriate case would lead to quite different results. The debate between the two judgments can be seen more clearly if the issue of the liability of the school manager, which lay in the background to O’Keeffe v. Hickey, is considered. Although both judgments were careful not to reach any concluded position in that regard in the absence of any defendant in a position to argue the case, it is certainly much more likely that such a manager could have been found liable under Fennelly J.’s close connection test, and unlikely, perhaps highly unlikely that a manager could be found liable under Hardiman J.’s adherence to a strict “unauthorised mode of performance of the task” test. I think it is clear however that the judgment of Fennelly J. must be taken now to represent the law. This is not simply because it was agreed to by two other members of the Court, but, it must be recalled, Geoghegan J. delivered a judgment in which he would have dismissed the appeal and held the State parties to be vicariously liable.

25 However as already observed, in my view, the judgment of Hardiman J. remains important not simply because of its rigorous analysis, but also because it casts light on the judgment of Fennelly J. Therefore when Fennelly J. states that everything depends upon the facts of the case, and that the facts must be carefully analysed, he considered that the test he adopted was more expansive than that asserted by Hardiman J., but not decisively so. An employer may (not must) be liable for sexual abuse carried out by his employee or a person for whom he or she is vicarious liable.

26 A number of conclusions can be drawn from O’Keeffe v. Hickey which are important for this case. First, as already observed, the judgment of Fennelly J., and the close connection test must be taken to represent the law in Ireland. Second, even though there was not a residential component to the school and the children were not particularly vulnerable, it seems clear that that test was satisfied in this case. The abuse took place during the very act of teaching in the classroom. Indeed, this seems to have been tacitly accepted in this case insomuch as the case proceeded on the assumption that the manager employer was vicariously liable for the abuse. It follows therefore that there was a close and sufficient connection between the teaching carried out and the criminal abuse. Third, and perhaps most importantly, the issue which divided the Court in O’Keeffe does not therefore arise here. The question is not whether the act done is one for which a person is otherwise vicariously liable for the acts of another should be responsible i.e. whether on this occasion the employer or anyone else should be liable for an act of sexual abuse. That issue must be taken to be satisfied in this case both on an application of the close connection test in general, and the attribution of liability to the manager in particular. The question here for determination is a separate and perhaps anterior one: is the first named defendant either on his own behalf or as a representative of the Marist Order vicariously liable for the acts of the second named defendant (including in this case the sexual abuse)? That question, as we shall see, leads to another question as to the legal nature of a religious order, but for present purposes it is easier to treat the first named defendant Brother McGowan as essentially indistinguishable from the Order itself. The question therefore becomes whether the Order (or its members) is vicariously liable for the actions of a member. Taking the classic case of vicarious liability as the relationship between an employer and an employee, the question becomes whether the relationship between an order (or its members) and another member is such to give rise to vicarious liability for a wrongful act, it being accepted that if vicarious liability arises, it may, in an appropriate case, extend to acts of sexual abuse. That issue (and the related issue of the legal status of a religious order) were the subject of consideration in the CCWS case and it is not surprising therefore that the High Court judgment under appeal relied on the reasoning of the judgment of the Supreme Court of the United Kingdom, as indeed was stated expressly in the passage of the judgment set out at paragraph nine above. It is necessary therefore to consider that judgment in some detail.

Catholic Child Welfare Society and Ors. v. Various Claimants (FC) and Ors. [2012] U.K.S.C. 56.

27 The plaintiffs in these proceedings were pupils at a residential school in Yorkshire. Originally the school had been a reformatory, later an approved school for young offenders, and latterly an assisted community home for children in the care of the local authority. The school had been established initially by Catholic benefactors and at the relevant time was managed by two diocesan bodies responsible to the diocese of Middlesbrough who were the legal employers of the teachers and staff working there. The Institute of the De La Salle Order (referred to in the judgment as “the Institute”) had been invited by the diocesan bodies to run the schools. Members of the Order lived on the grounds of the school. The pupils were self-evidently vulnerable children placed in their care. However over a period of some 20 years boys were abused in particular by the headmaster who was later convicted of a series of offences in respect of his activities at the school. It is alleged that other pupils were abused by another brother. There were over 170 plaintiffs and the proceedings were in the nature of a test case.

28 In the proceedings the claimants sued the principal perpetrator as the direct tortfeasor and another 35 defendants who it was alleged were responsible in law for his wrongdoing. Those defendants could be divided in to two broad groups: the diocesan bodies who were the legal manager of the school and employer of the staff (“the diocesan bodies”), and members of the De La Salle Order (“the Institute”). A preliminary issue was directed to be tried on the vicarious liability of both sets of defendants. The High Court held that the diocesan bodies were vicariously liable for acts of abuse by staff but the Institute (or its members who were defendants) was not. This decision was upheld by the Court of Appeal. However, the Supreme Court of the United Kingdom in a unanimous decision, overturned the decision of the Court of Appeal and held that the Institute was vicariously liable along with the diocesan bodies for the sexual abuse carried out by the headmaster and other members of staff. There is a certain imprecision in the description of these defendants which, for reasons which will become clear, is unavoidable at this stage. However, for present purposes it can be said that the conclusion of the Supreme Court was that where sexual abuse was perpetrated on vulnerable children attending a residential school by a person employed by one body, and who was a member of religious order, both the employer and the order could be vicariously liable for that abuse.

29 The only judgment was that of Lord Phillips of Worth Matravers. He referred to a Court of Appeal decision in E v. English Province of Our Lady of Charity [2012] E.W.C.A. Civ. 938 which had been decided shortly after the Court of Appeal decision in the CCWS case. The leading judgment in the E case had been given by Ward L.J., and to a large degree, Lord Phillips preferred the analysis in that judgment, to that of the Court of Appeal (and the High Court) in the CCWS case. The judgment commenced by observing that the Institute was as a matter of law an unincorporated association. However, he observed at paragraph 19 that “the law of vicarious liability [was] on the move”. The basic position as a matter of history was encapsulated in the “course of employment test”. Since that test had been developed however, the law had developed in a number of ways. Unincorporated associations had been held to be vicariously liable for the tortious acts of a member citing in this regard Heaton’s Transport (St Helen’s) Ltd. v. Transport and General Workers’ Union [1973] A.C. 15; Thomas v. National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium v. Salaam [2003] 2 A.C. 366. Vicarious liability was possible even when the acts of the employee were unauthorised, in breach of duty to the employer, and even criminal. It was also possible for two (or more) defendants to be vicariously liable for the acts of another.

30 Any case of vicarious liability involves wrongful acts of one defendant (D1) and a determination that in addition another defendant (D2) who themselves are innocent of wrongdoing are nevertheless liable for the tort of D1. Lord Phillips explained that any determination of the existence of vicarious liability involved two separate but connected steps: firstly whether the relationship between D1 and D2 was such as to give rise to vicarious liability for any acts, and second, whether such liability could extend to certain acts or actions. The first question involved an analysis of the relationship between D1 and D2, and the second a consideration of the connection between the actions complained of and that relationship. Most focus in the CCWS case was upon the first question, that is the relationship between an individual brother and the Institute or Order. Lord Phillips also addressed the question of the status of a religious order, and as he described it, “the problem of the Institute” (Paragraph 27). This indeed had been a significant feature in the Court of Appeal decision which had held there was not a sufficiently close connection between the brothers of the Institute around the world and the torts committed by the brother teachers at the school in question to given rise to vicarious liability. This prompted Lord Phillips to raise the question of whether it was “right to treat the De La Salle Defendants as being simply an unincorporated band of brothers scattered around the world” (Para.27). This issue, as Lord Phillips noted, arose from the fact that the common law did not recognise the Catholic Church as a legal entity in its own right, but saw it as an unincorporated association with no legal personality and which held property through the mechanism of trusts. He addressed and resolved this question for the purposes of this case in three important paragraphs in the judgment:

“31 I can appreciate Hughes LJ’s difficulty in accepting that a De La Salle brother in Australia could be vicariously liable for the sexual assault by a brother at St William’s. Indeed, there is something paradoxical in the concept of an attempt to hold vicariously liable a world wide association of religious brothers, all of whom have taken vows of poverty and so have no resources of their own. So far as individual defendants are outside the jurisdiction this might also have given rise to an interesting question of conflict of laws. This is, however, a long way from the realities of these proceedings and Lord Faulks has not taken any point on the nature of the Institute.

32 It is open to the claimants on the pleadings to seek to establish vicarious liability on the part of an unincorporated association made up at the relevant times of the brothers world wide, or of members of the London Province, or of the England Province, or of the Great Britain Province. At the end of the day what is likely to matter will be access to the funds held by the trusts, or to insurance effected by the trustees. Whether one looks at the picture world wide, or within Great Britain, the salient features are the same. The Institute is not a contemplative order. The reason for its creation and existence is to carry on an activity, namely giving a Christian education to boys. To perform that activity it owns and manages schools in which its brothers teach, and it sends its brothers out to teach in schools managed by other bodies. The Institute is, for administrative purposes divided into Provinces, each administered by its Provincial. To carry out its activities it has formed trusts that have recognised legal personality. The trusts are funded in part from the earnings of those brothers who receive payment for teaching. The trust funds are used to meet the needs of the brothers and the financial requirements of the teaching mission.

33 It seems to me more realistic to view the brothers of the Province from time to time responsible for the area in which Market Weighton lies as members of the relevant unincorporated association rather than the Order as a whole, but I doubt if it makes any difference in principle. Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.” (emphasis added)

31 Treating the individually named defendants as if they were a single corporate body able to own property and possess substantial assets, the judgment then turned to the question of whether that body could be vicariously liable for the acts alleged in this case. The judgment observed that vicarious liability was a longstanding and vitally important part of the common law. In the majority of modern cases the defendant is not an individual but a corporate entity and vicarious liability was likely to be the basis on which the defendant was sued. He continued:

“The policy objective underlying vicarious liability is to ensure, insofar as it is fair, just and reasonable, that liability for tortious wrong is borne by a defendant with the means to compensate the victim. Such defendants can usually be expected to insure against the risk of such liability, so that this risk is more widely spread. It is for the court to identify the policy reasons why it is fair, just and reasonable to impose vicarious liability and to lay down the criteria that must be shown to be satisfied in order to establish vicarious liability.”(Para. 34)

32 Coming to the conclusion in relation to the CCWS case, Lord Phillips adopted much of the analysis in E v. English Province of Our Lady of Charity, albeit that case concerned the liability of a bishop for a diocesan priest. The “crucial features” identified were:

“that the priest was appointed in order to do the work of the church with the full authority to fulfil that role, being provided with the premises, the pulpit and the clerical robes. He was directed into the community and given free rein to act as representative of the church. He had been trained and ordained for that purpose and his position of trust gave him great power.” (Para. 48)

33 Lord Phillips considered that the case for finding vicarious liability was much stronger in the CCWS case than it was in E v. English Province of Our Lady of Charity. The features which were relevant in this regard were: (i) the Institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body; (ii) the teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it; (iii) the teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute; and (iv) the manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute’s rules. Lord Phillips also suggested a simpler analysis at paragraph 61:

“Provided that a brother was acting for the common purpose of the brothers as an unincorporated association, the relationship between them would be sufficient to satisfy stage 1, just as in the case of the action of a member of a partnership. Had one of the brothers injured a pedestrian when negligently driving a vehicle owned by the Institute in order to collect groceries for the community few would question that the Institute was vicariously liable for his tort.”

The High Court Judgment

34 The High Court judgment expressly adopted the analysis in the CCWS case and in the passage at paragraph 69 of the judgment already quoted, treated the Marist Order as if it were a corporate body of which the first named defendant could be regarded as the representative. Indeed, the appellant submitted that the extent to which the High Court was forced to rely upon the judgment extended to utilising the judgment to supply some of the manifest inadequacies of the evidence in this case. In particular there was, it was argued, no evidence whatsoever as to the day to day running of the school and in particular the interaction, if any, between the Marist Order and the manager, and therefore no evidence to support the conclusion that the Marist Order was in control of the school or the teaching activity of its members in the school.

35 I agree that the evidence here directed to this issue was fragmentary and was not focussed on the important issue which now looms large in this appeal. I also agree that there was not any sufficient evidence for the conclusion that the Provincial of the Marist Order was in control of the teaching activities of the second named defendant. It would indeed be unsurprising if there was not a certain fluidity in the performance and allocation of roles in this regard in early 1970’s Ireland. However, I do not consider the Court can make findings as to the position in a particular school in a three year period between 1969 and 1972 without evidence directed to the issue. There is no doubt therefore that the plaintiff’s case would have been considerably stronger if he had shown that there was shared control, or even, which is not implausible, that at certain times the school was effectively run by the Marist Order. However it does not follow from this that the Court cannot make determinations on the precise legal issue which arises here. That question is the relationship between the wrongdoer and the person or body alleged to be vicariously liable for the wrongdoing.

36 Looked at in this way, it should be apparent that this is in fact not the most difficult issue in the case. There is evidence that Brother Cosgrove was a member of the Marist Order. It is accepted that the Order was a teaching order, and supplied teachers to the school. That was how Brother Cosgrove came to be in the school. Teaching was not simply an occupation, but an important and central part of the mission of the Order. The Order was established, and its members bound, not merely by rules, but solemn vows taken by them and considered sacred and binding. Those vows included chastity, obedience, poverty and celibacy. I think we are entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective.

37 At a crude level the question of whether a relationship between D1 and D2 in any particular case is sufficient to give rise to vicarious liability can be addressed by asking how closely the relationship approximates to the classic case of employer/employee. Some of the cases have taken this approach. There is however in my view something slightly absurd in seeking to draw comparisons between the case of religious orders and businesses. Furthermore, the tests and language applicable when considering the case of employment and analogous relationships, such as “enterprise” and “risk” are not easily applicable in the case of religious orders. Indeed, to apply tests drawn from the relatively modern world of commerce and industry to religious organisations which have existed for centuries is in my view, to miss the sheer scale and impact of religious institutions on peoples’ daily lives, particularly in the Ireland of the first three-quarters of the 20th century. The relationship between members of an order and his or her fellow members and indeed the order itself was much more intense, constant and all pervasive than the relationship between an employer and an employee, or in the old language of the late Victorian cases, a master and his servant. Everything in the organisation of religious orders is directed towards emphasising the collective. The vow of obedience involves subjugation of individual will to that of the superior. The vow of poverty has the effect of making the member dependent upon the order’s collective resources. The vow of celibacy emphasises the focus of the member on relationships with the order and with God. The objective of teaching young people is not merely incidental to the work of an order, it is indeed the manner in which the order seeks to achieve its object. For a member of the order, teaching was not merely a job it was a religious vocation. There can no doubt that Brother Cosgrove was in the classroom in Sligo between 1969 and 1972 because he was a member of the Marist Order. That was known, understood and accepted by pupils and parents, and when such individuals looked at the various brothers who staffed the school at any given time, they saw, and were intended to see not just a teacher, but a Marist.

38 The relationship between members and the order, and the importance to the order of the role of members as teachers of young people, are matters which have no direct comparators in the secular world. Accordingly, I do not consider that there is anything inappropriate in addressing this question from the perspective of justice and fairness. This is not to reintroduce the unbridled discretion in individual cases so sharply criticised by Hardiman J. in O’Keeffe v. Hickey. Instead, a general question is raised in this case as to whether all persons similarly situated should be liable if certain facts are found. It would be surprising if fairness was not a component of that decision. It is perhaps conceivable that an onlooker might consider it not unfair that the only person liable for sexual abuse should be the perpetrator, and that these actions are so wrong, and outside contemplated activity, that they are the responsibility of the wrongdoer alone and no other body can be made liable for them without culpability on their own part, such as failing to act on complaints. This was the thrust of the judgment of Hardiman J in O’Keeffe. However that position is no longer possible and it is now clear that there can be vicarious liability without fault for acts of sexual abuse. If so the onlooker would surely struggle to understand that the only person or body who as a practical matter may be required to compensate a plaintiff abused in this way by a member of the Marist Order, in a school staffed by the Order, should be the local parish priest. Accordingly I conclude that in principle, once it is accepted there can be vicarious liability of acts of abuse a religious order (or its members) may be vicariously liable for acts of abuse which are sufficiently closely connected to the object and mission of the order.

39 I reach this conclusion adopting what I consider to be the cautious and incremental approach outlined by Fennelly J. in O’Keeffe, conscious indeed of the strength of the criticism of that approach contained in the judgment of Hardiman J. in the same case. The decision that in principle a religious institution can be vicariously liable for the actions of a member of the order (and in particular sexual abuse) is undoubtedly novel. But once it is accepted that vicarious liability can extend to organisations and relationships other than that between employer and employee, then the size, impact and organisation of a religious order mean that it is not a large step to extend vicarious liability to such an order. Indeed, although the common law insisted upon viewing religions and religious orders (other than established churches) as nothing more than unincorporated associations, the degree to which a member of a religious order is subsumed into a collective entity is almost unique in society and involves a far closer connection with the other members than exists between the most enthusiastic member and a club or between the most loyal employee and an employer. As Charleton J observes in his judgment, “the moral nature of the submission to religious vows, the duty of obedience, the unquestioning move from one teaching position to another and the strict nature of the obligation assumed within a religious order to accept direction show more than the employment relationship ever demands”. I do not therefore regard this development as an indicator of the law’s willingness to expand vicarious liability for such acts more generally. In particular the mere fact of voluntary association may not create the type of intense relationship that justifies imposing vicarious liability in the case of a religious order. Any such case would require a close analysis of the facts and the law.

40 It is I think revealing that responsibility in the shape of the intentional torts, or fault, in the case of the more common, if sometimes hyper-exacting modern law of negligence, remain such an important part of the tort law system, which remains by far the most important mechanism for compensation for injury. Despite the theoretical arguments which have been advanced for over half a century for a general system of compensation without fault and burden spreading, whether by an insurance or State supported scheme, there has been a stubborn but persistent adherence to culpability or responsibility as an underlying justification for liability in tort. There is no perfect correlation between wrongdoing and injury, and persons may be guilty of serious wrongdoing which cause little injury, whereas persons committing trivial acts of carelessness can be held responsible for great damage; nevertheless the process of seeking and paying compensations seems to function on the basis that at some level it can be said that there is some culpability whether intentional or negligent on the part of the defendant, which justifies the imposition of the burden of compensation. This is of course an insight which is not limited to the common law world. However, the law also permits in certain circumstances liability without wrongdoing, intentional or careless. The common law developed by individual incremental decisions which are then tested by time, and if found satisfactory, and not altered by legislation, establish the law. In those cases of liability without fault which the law of tort permits, perhaps most obviously, the ancient rule in Rylands v. Fletcher, the law of agency, and vicarious liability in the context of employment, there are I would suggest, some reasons which justify the imposition of such liability, and which have been found sufficient at least at the practical level of not leading to a reversal of the law, whether by statute or through case law.

41 In most such cases of imposition of liability without individual culpability, to some extent at least it can be said that the defendant creates, or permits and often benefits from, a situation which carries with it the risk of injury or the wrongdoing by others. In the case of the employer/employee, the employee is in a position to commit the tort because he is employed and provided with equipment which he or she may misuse. The employer chooses the general activity and it is of value to him or her. To that extent it is perhaps not unfair that an employer should bear the risk of wrongdoing, even wrongdoing which he or she may forbid and indeed genuinely abhor. This is, I would add, irrespective of whether the employment is for profit or can be labelled an enterprise. In the context of this case, it is of course possible that in another life the second named defendant might still have been a national school teacher, but it is surely beyond argument that a large part of the reason why he was in an overcrowded national school room with young boys between 1969 and 1972 was because he was a member of the Marist Order, and that he and the Order considered that he was pursuing an important and central objective of the Order in teaching such children rather than merely providing a service to the manager of the school. The fact that here the abuse occurred in the very school room is important, and in my view a decisive feature in this case.

42 However, I would not, and with respect, adopt some of the rather freewheeling analysis advanced by the plaintiff, and adopted by the High Court, on the basis of aspects of the decision in CCWS. Vicarious liability is not on the move, at least not of its own volition. If it moves, it is by the decision of judges which must be reasoned and justified. The law of vicarious liability was relatively stable, narrow and well understood for most of the 20th century until recently, and much if not all of the development of the law has occurred because of the necessity of addressing the phenomenon of historic sexual abuse of children in an institutional context. There is in my view no discernible movement in the common law world to expand vicarious liability, and therefore liability without fault, on the basis merely of an ability to pay alone, and any such development would raise fundamental issues. Instead, there has been a number of carefully analysed, but not always consistent, attempts in the courts of the highest level in the common world, to provide a framework in which to address claims of historic sexual abuse.

43 I also doubt with respect, that the function of vicarious liability is to ensure that liability for a tortious wrong is borne by a defendant with means to compensate the victim. This can I think be said more accurately to be the function, or at least the aspiration, of the plaintiff’s lawyer. The function of tort law, and vicarious liability which is a part of it, is I think to identify a defendant who can justly be called upon to compensate an injured party. There remains in the real world however an unavoidable risk that the party or parties deemed liable by the law may not be able to meet an award, particularly when the award is sizeable and the wrongdoing occurred a considerable time ago by persons who may be deceased, or in institutions which may no longer exist, or for matters in respect of which insurance was not available, or if insurance was obtained, it may no longer be in place. If this results in victims not receiving compensation which is considered desirable, then that may be a matter for public policy more generally, but it may be beyond the reach of inter-party litigation and any possible development of the common law. These are problems that can arise in any claim, but are more likely to be encountered in cases that relate to events which occurred a long time ago.

44 While the issue was raised primarily in the context of the legal nature of a religious order, an issue which must be addressed later in this judgment, I do not think it is helpful to address any part of these issues on the ruthlessly pragmatic basis that what matters is access to funds held by a trust or to an insurance policy. Firstly, it remains the case in Ireland in my view, that it is not permissible to seek either to join an insurance company to a personal injuries action, or to address the question of the presence or absence of insurance in such proceedings. Strictly speaking the existence of insurance is irrelevant to the legal issues to be determined whatever its practical significance. The law is meant to apply equally to the rich, the poor, the insured and the uninsured, and questions of liability must be determined on that basis. Indeed, this is an important discipline when issues come to be addressed in the context of cases in which individual plaintiffs may have suffered serious and life changing injuries. More importantly, while it is important at the level of policy and legal history to acknowledge the interaction of insurance and liability, that insight is of little assistance here. Indeed, it is to reverse the natural order in which the issue should be addressed. A person is normally obliged to, or at least wise to, insure against a liability which he or she may have: if there is no liability, then there is no requirement to obtain insurance and indeed conceivably such insurance may not be available. The question of liability of an individual cannot therefore be determined by the existence of insurance against that risk.

45 At a more practical level, there is no necessary guarantee that any insurance policy does exist which could be interpreted at this remove, to provide cover for claims in respect of conduct which occurred 40 years ago. Given the antiquity of these claims, it is entirely possible that there are no existing insurance policies. The policies have been lost or lapsed, or the entity providing the insurance no longer exists, or if it still exists that its reinsurance has been lost either partially or wholly. Even if a policy existed which, fortuitously could be argued to provide cover for members of a religious order in a school, it is unlikely that it would have been entered into, or, a premium set, in contemplation of the risk of sexual abuse, or the possibility that it could be perpetrated by members of a religious order. This is particularly important given the fact that if the level of damages awarded in this case were replicated generally, then the cost would be very substantial indeed to any organisation. The resulting cost would not be spread over those few policies which might still exist, and which could be said to cover abuse which occurred nearly 50 years ago. Instead the cost will be borne by the insurance company and sought to be recouped by increased premiums from future policy holders, not responsible for the abuse and perhaps not religious orders. It is not clear why that is any fairer as an outcome. Different difficulties arise in the case of trusts. Normally, the fact that an individual or property is a beneficiary of a trust would mean that the trust property is not available to meet any award made against the individual. There is nothing to suggest that there is any trust here or in any such similar case, or indeed any similar funds to provide ready compensation for the plaintiff, and therefore assuage concerns as to the extension of liability in the case. Reference to insurance and trusts therefore only distracts focus on what are undeniable difficult issues.

46 Finally, and at the level of detail, I doubt that it can be said as a general proposition that an unincorporated association is vicariously liable separately from its members, for the tortious acts for one or more of its members. As pointed out in the comment in Morgan, ‘Vicarious Liability on the Move’, (2013) 129 L.Q.R. 139, the three UK cases cited: Heaton’s Transport (St Helen’s) Ltd v. TGWU [1973] A.C. 15; Thomas v. The National Union of Mineworkers (South Wales Area) [1986] Ch. 20, 66-7 and Dubai Aluminium Co. Ltd. v. Salaam [2003] 2 A.C. 366, do not establish that proposition. Both Heaton’s and Thomas involved trade unions and Salaam involved a partnership. In each case therefore there were statutory interventions which had the effect of permitting the union or the partnership to sue or be sued. These cases therefore offer little guidance as to the vicarious liability of wholly unincorporated associations whose structure and legal status is not in any way provided for by statute. The High Court judgment here followed the approach in CCWS in treating a religious order as if it were a body corporate, and then analysing the two stages of vicarious liability. I have approached the issue of vicarious liability on the same basis since it reduces the possible complications in the analysis of what are in any event difficult issues. However, in my view the most difficult issue in this case is whether the assumption, and indeed the conclusion in the High Court, that the Marist Order could be treated as if it were a body corporate and therefore a single entity vicariously liable for the acts of its members, and therefore permitting execution against what are deemed to be the assets of the body (and avoiding perhaps execution against any individual assets of members if such is possible) is indeed correct. There is a further related procedural matter as to whether even if the Order may be treated as if it were a body corporate, such a body has been properly sued in these proceedings.

The legal status of the Marist Order and its relationship to the first defendant

47 The High Court here held that it was appropriate to treat the Marist Order as a corporate body liable for the acts of its members and, implicitly that the first named defendant could be treated as a representative of the Order so that judgment could be, and was, entered against him. In coming to that conclusion, the High Court judge expressly followed the approach in CCWS. However although that was indeed the outcome of CCWS, the matter was not the subject of any extended argument, or consideration, apparently because the issue was not itself seriously contested by counsel on behalf of those defendants sued on the basis of their involvement in the De La Salle Order. (See paragraph 31 of the CCWS judgment already quoted at paragraph 30 above). The issue of the problematic nature of the De la Salle Order, at least as a matter of law, was however considered by Lord Phillips and his conclusion set out at paragraph 33:

“Because of the manner in which the Institute carried on its affairs it is appropriate to approach this case as if the Institute were a corporate body existing to perform the function of providing a Christian education to boys, able to own property and, in fact, possessing substantial assets.” (emphasis added)

48 The starting point for analysis must be that the common law considers a religious order such as the De La Salle Order in CCWS, or the Marist Order here, as an unincorporated association. This approach stems in turn from the historic unwillingness of the common law to recognise the Catholic Church in particular (and presumably other religions other than the Established Church) as a legal entity in its own right, notwithstanding its obvious size, organisation and importance in the daily life of the community. If indeed the common law had recognised the Church and religious orders as possessing legal personality distinct from its members, then this and other cases would be much easier. However that step was not taken either in the United Kingdom or even in Ireland post-Independence. The limited extent to which religion and in particular the Catholic religion was recognised in Article 44 of the 1937 Constitution did not, in my view, have any effect on the legal status of those religions, and that provision was in any event removed in 1973. Of course, it may be that there was no pressure or requirement for the law to address the status of churches and orders because it was possible for the Church to organise its affairs in civil law so far as was necessary, and to give effect to its objects. Accordingly, it was possible to hold property through trustees, to make contracts through nominees who would be liable, and then indemnified, and so far as the interests of the order required protection in court, it was possible for trustees or nominees to bring proceedings. None of this however addressed the question of the Catholic Church or a religious order, as a defendant in proceedings. It seems likely that this was dealt with on an ad hoc basis, and without any issue being taken either because of the availability of property to satisfy any award, or the existence of insurance policies. However, the potential range and number of claims brought in respect of historic sexual abuse raise the prospect of very extensive potential liabilities which in other countries have led to the bankruptcy of parishes, dioceses or institutions, and may threaten their capacity to continue to undertake valuable work in the community with marginalised and vulnerable people, which, it should be recognised, is work that was carried out by members of religious orders – themselves not merely blameless for the particular wrongdoing but who are admirable for their selfless devotion to charitable works. It is perhaps not entirely surprising therefore that the difficult issue of the liability of an order or its members is maintained in these proceedings. In any event it must be addressed.

49 I cannot accept that by some process of unexplained alchemy a group of individuals such as that involved in this case, which is in law, an unincorporated association, can come to be treated for the purposes of these proceedings only, as if it were a corporate entity. References to insurance, or the existence of property held on trusts, or the reality of proceedings, cannot in my view provide an acceptable legal route between these two points. The UK cases referred to as establishing the proposition that an unincorporated association can be vicariously liable for the acts of its members reveal themselves on examination to be cases about trade unions and partnerships – both of which have statutory provisions and recognition, the effect of which is to give them some status for the purposes of legal proceedings.

50 The law relating to such bodies casts some light on the liability of unincorporated associations more generally. It has been held that a registered trade union was a quasi or near corporation. In R (IUDWC) v. Rathmines UDC [1928] I.R. 260, Kennedy CJ said at p.300:

“A trade union which has been registered with a name, an address, a constitution and rules, is a legal person, at least analogous to a statutory corporation, having an existence apart from the individuals aggregated in the combination.”

This conclusion (which only relates to registered unions) followed not from the status of a union as an unincorporated association, but from the consequences of registration in accordance with the then statutory provisions recognising the existence of trade unions. In the case therefore of trade unions and partnerships, their capacity to sue or be sued in their name results from statutory intervention and not from a status as an unincorporated association. Indeed, the case of an unregistered trade union provides the more appropriate analogy. The difficulty which may, arise in relation to proceedings by and against such bodies is thoroughly and helpfully discussed in Kerr and White, Irish Trade Union Law, (Abingdon: Professional Books Ltd., 1985) pp. 62-63. The authors conclude:

“The legal position of the unregistered trade union is comparatively straight forward – it is an unincorporated voluntary association of individuals similar in legal nature to a social club. The union has no legal personality itself and consequently any action concerning the union, its property or activities must be brought or defended by way of representative action.”

51 The difficulties of cases in which it is sought to make a defendant representative of others are also discussed by the authors. The conclusion is, that in the absence of statutory intervention, an unincorporated association lacks separate personality and cannot sue or be sued as if it were. This position is reflected in the recent decision of this Court in Sandymount and Merrion Residents Association (SAMRA) v. An Bord Pleanála and Ors. [2013] 2 I.R. 578. There this Court in a judgment of Clarke J. held unanimously that the effect of s.50A(3)(b)(ii) of the Planning and Development Act 2000, was to provide an exception to the general rule that an unincorporated association could not bring proceedings. In the course of that judgment he said:

“It is true of course, that … an unincorporated association or body does not have the legal capacity to bring or defend court proceedings. Such an unincorporated body or association is simply the sum of its individual members with no independent legal personality. However, it is also clear there can be, whether by legislation or otherwise, exceptions to that general rule.”

52 There is clearly no legislative exception relied on in this case to alter the longstanding position of the common law that a religious order is an unincorporated association. It is perhaps not entirely inconceivable that it is within the powers of the court, and the common law, to provide for an exception to that rule in some cases. However, the basis upon which such a step could be taken, was not addressed in argument, or discussed in the CCWS case. As it stands therefore in my view, the Marist Order is an unincorporated association and must be viewed by the law as such. It is essential to the very nature of an unincorporated association that it is not a body corporate. It cannot therefore be treated as if it was that which by very definition it is not. In my view, the Court must address the difficult question of the liability of members of an unincorporated association, and, the related question on the assumption that there is such liability, the question whether it has been properly invoked in this case.

Liability of an Unincorporated Association

53 To speak of an unincorporated association implies a body of some substance. Given the importance of clubs sporting and otherwise in Ireland, it would be wrong to underestimate the social significance of such a body. George Orwell observed that the English are a nation of joiners, but the observation could be applied with equal merit in Ireland, although the list of activities might not put the same emphasis on the flower arranging, pigeon fancying and dart playing praised by Orwell. However, in law, the absence of incorporation means that the body is created by the agreement of its members embodied in rules which are in the nature of a contract between the members. Thus, in Conservative and Unionists Central Authority v. Burrell [1982] 1 W.L.R. 522, Lawton L.J. defined an unincorporated association as “two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and upon what terms, and which can be joined or left at will”. There is a dearth of authority in the common law world as to the liability of members of an unincorporated association but there is a working assumption that members are jointly and severally liable for damages arising out of a tort committed by a member in pursuit of the objects of the association. The celebrated case of Miller v. Jackson [1977] 3 All E.R. 338, featuring Lord Denning’s dissent from the proposition that a cricket club could be liable for balls hit into the property of its neighbours, is normally cited as authority for that proposition, but it does not appear that the point was argued or separately addressed as the award was sufficiently modest to be paid out of the club’s funds. The Scottish Law Reform Commission’s, Discussion Paper on Unincorporated Associations (DP 140) (2008) p.11, set out its understanding of the general position:

“It would therefore appear that the members would be liable jointly and severally for the damages awarded, beyond the amount of their subscription to the club.

The point has not been the subject of decision by a UK court because in the reported cases in which associations have been sued (through their officer bearers) at common law or under the Occupiers’ Liability (Scotland) Act 1960, either the pursuer has failed to establish liability or the sum awarded has been sufficiently modest to be payable in full out of club funds. It has, however arisen in other jurisdictions. In Australia, the possibility that committee members who had been found liable in damages to a third party might seek indemnity from members was mentioned by Jacobs JA in Smith v Yarnold. At common law in the United States, members of an unincorporated not-for-profit association are liable for the tortious conduct of fellow members and agents of the association, although it has been noted that in some jurisdictions liability has been restricted to members who participated personally in a tortious act, or who expressly or impliedly assented to it.”

54 Club members have been liable in tort in cases such as Kennaway v. Thompson [1980] 3 All E.R. 329 where members of a motor boat racing club were held liable in nuisance, and similarly in the case of Tetley v. Chitty [1986] 1 All E.R. 663, where all members of a go-kart racing club were found liable in nuisance together with the borough council which had permitted the activity.

55 Perhaps the most thoughtful and extended consideration of this issue is to be found in the Irish case of Murphy v. Roche & Ors. (No.2) [1987] 1 I.R. 656. The case involved a member of a GAA club, who attended a dance in the club house and sustained injuries due to a fall which he alleged was caused by negligence on the part of the club. The Supreme Court directed the trial of a preliminary issue on the liability of a club to its members. In the High Court, Gannon J. held that a member could not sue a club per se essentially because it was an unincorporated association and the plaintiff member would be maintaining an action against himself or herself. This analysis it might be noted is necessarily dependent upon the proposition that the individual members of the club (including the plaintiff) are legally liable for the negligence of other members, at least in the pursuit of the common purpose of the club. Gannon J.’s analysis of the position of members of an unincorporated association against whom proceedings are sought to be brought, was clear:

“In my opinion this club is a voluntary association of persons having a common or mutual interest not for any financial or commercial gain who have expressed to themselves and to all third parties the terms of their association in their rules. The mere fact of such association does not cast on any one of them liability for actionable wrongs by any other of them. Liability may attach by reason of actions of an agent common to all and acting as such, or by reason of the actions of one of them having the authority in nature of agency of all. Agency, however, cannot be assumed by reason only of common association and it would have to be established as a fact by any person seeking to rely upon it. The agency, its nature and limitations is to be found in the rules mutually adopted by the members for the purposes of the common interest. It is my opinion that any wrongful action of one member carries vicarious liability for all members to the extent that it corresponds with the common interest; and, to the extent that it is not common to all and is at variance with the rules, the liability remains that only of the individual, subject to express agency, if any. However, if the actions of any member or servant in the furtherance of the common interest should occasion actionable damage, the body of members as principals are all equally liable vicariously to the injured party for the entire damage attributable to the harm, but with the right of recourse for indemnity against the wrongdoer. In the absence of express terms no one individual sharing the common interest served by the action of the agent, be he member or servant, can avoid his vicarious liability for the entire damage to the injured party even though contribution may be obtained under the Civil Liability Act, 1961.” (p.661)

56 It becomes important to consider here precisely what was in issue in these proceedings on the pleadings. It will be recalled that the first named defendant did not make any concession as to responsibility but insisted that the case be determined strictly in accordance with law. Much of the first named defendant’s criticism of the case made by the plaintiff consisted of detailed, and in some cases justified, criticisms of the pleadings and the lack of detailed evidence. The same principle applies however to the first named defendant. The only plea raised was that at paragraph four discussed above which did not deny that the first named defendant was Provincial of the Order but rather pleaded that the members of the Marist Order as an unincorporated association were not liable either directly or vicariously for any act of any other member. It is correct that members of the Order are, at common law at least, members of an unincorporated association and they do not have any direct liability for the acts of others. However, for the reasons set out above, I consider that they have a vicarious liability for the acts of other members. The paragraph goes on to assert, correctly in my view, that any current member of the association is not vicariously liable for acts of a member prior to the defendant becoming a member of the association. In my view, the members for the time being at the time the act is committed are liable rather than the members, for example, at the time the proceedings are commenced. It is however conceivable that the rules of the association may allocate liability internally. It may be that this further plea is meant to imply that Brother McGowan joined the Order after 1972, but if so it is not explicitly pleaded, and was not addressed in evidence. The defendant deliberately chose not to risk providing assistance to the plaintiff’s case by calling evidence, but thereby ran the risk that he might also lose evidence that might be of assistance to the defendant’s case. On day six, page 46 of the transcript, it appears Brother McGowan was going to give evidence but having after a short period for consideration, he was not called. Therefore, the plaintiff has in my view established that he was abused by the second named defendant who was a member of the Marist Order, and that he has pleaded that the first named defendant is a member of the Marist Order and indeed a provincial, and this is not denied. It has neither been pleaded nor proved by the second named defendant that he was not a member during the period of the wrongdoing established in this case. That in my view is just enough to justify judgment against the first named defendant, although it remains to be seen what benefit such judgment against the individual will be to the plaintiff. This might appear a narrow and somewhat technical approach, which nevertheless has decisive consequences in this case. After all, the first named defendant may have been able to prove that he was not a member of the Order at the relevant time. However he neither sought to plead, or prove, such a state of affairs. Instead he took up a position – that members of an unincorporated association were not vicariously liable for the any of the acts of another member – which in the event failed as a matter of law. He also insisted on strict proof of all matters and stood on his right to defeat the claim even on grounds which were on any view, technical. It may be rough justice, but it is justice all the same, if the same standard is applied to his case.

Representative Defendant

57 There was considerable discussion in the course of the appeal of the possibility of seeking an order that the first named defendant was sued in a representative capacity on behalf of all members of the Order or, conceivably specified members. While the first named defendant made effective play of the fact that the plaintiff had not sought such an order the first named defendant did not necessarily concede that such an order was possible. It subtracts somewhat from the force of the arguments made about the inadequacies of the pleadings, if on closer examination it became apparent that there was no simple or effective route to a broader based claim. Order 15 Rule 9 of the Rules of the Superior Courts, 1986 does permit a person to sue, or be sued on behalf of all persons having the same interest in the cause or matter. However, Kennedy C.J. stated bluntly in Moore v. Attorney General (No.2) [1930] I.R. 471 at p.499, that the almost identical provisions of Order XVI Rule IX of the Rules of the Supreme Court (Ir.), 1905, did not apply to an action in tort. I am not sure that that is necessarily correct in all circumstances and in particular where a claim is made for the same vicarious liability against a number of parties (something that might not have been conceived possible in 1930). In any event I think that no sufficient attempt was made here to endorse the plenary summons with a claim that the defendant was sued in a representative capacity, or to identify the persons alleged to be represented. The appropriate course in such a case is to write to the order or provincial threatening to sue all individual members of the order unless a defendant is nominated. If that course is not taken, then all members who can be identified can be joined as defendants. If however any judgment is obtained against those defendants, the judgments are individual and whether or not such judgments will be met by insurance, or from assets which may be held for the benefit of the order more generally, may depend on the terms of the insurance, and indeed the terms upon which such assets are held, and perhaps the willingness and ability, of the order to make funds available to satisfy any judgment against an individual. Whether this is a desirable position as a matter of law and whether further changes should or could be made, is a matter which might usefully be considered by those charged with law reform.

Contributory Negligence

58 The High Court judge held that the manager of the school, as the legal employer of the second named defendant was also vicariously liable for his acts while teaching. Since the manager had not been sued, and since any claim against the manager was statute barred, the Court held that the plaintiff must be identified with the manager under s.35(1)(i) of the Civil Liability Act 1961, for the purposes of contributory negligence under s.34 of the same Act. However, the trial judge considered that the evidence was that the Order was much more substantially in control of the teaching than the manager of the school, and he apportioned liability as between the Order and the manager, 85%-15% and therefore reduced the plaintiff’s award by 15%. The first named defendant has appealed against the apportionment, and the plaintiff by notice to vary, contending that the finding of contributory negligence should not have been made. It is logical to deal with this latter argument first.

59 Section 35 of the Civil Liability Act deals with what it describes as “identification”. Much of it is unremarkable. It provides for example that the plaintiff is deemed responsible for the acts of a person for whom he is vicariously liable or when suing as a personal representative of a deceased’s person, or for example when suing as an assignee. However, s.35(1)(i) is quite novel. It provides:

“(1) For the purpose of determining contributory negligence—

… …

(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer;”

The immediately preceding section, Section 34, deals with the apportionment of liability in a case for contributory negligence. It provides so far as is relevant:

“(1) Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the plaintiff and defendant: … …” (Emphasis added)

60 Counsel for the plaintiff does not dispute that on the judge’s findings, the manager was a concurrent wrongdoer. He was vicariously liable for the assault of the second named defendant. It follows that for the purpose of s.35 that the plaintiff, who did not sue the manager, and whose claim against such manager is not statute barred, must be in the words of s.35 “deemed to be responsible for the acts of such wrongdoer”. However, counsel argues that s.35 is not an end in and of itself. It is introduced for the purposes of determining contributory negligence. He argues that contributory negligence is by virtue of s.34, limited to acts of negligence or want of care. Thus, the argument runs, the apparent breadth of s.35 is limited by the fact that it is stated to be an attribution of liability for the purposes of determining contributory negligence and therefore the only acts of the manager wrongdoer for which the plaintiff can be made responsible are acts “constituting negligence or want of care of the plaintiff or of one for whose acts he is responsible”, and not any other wrongdoing, such as assault, or as here vicarious liability for such assault.

61 It does not appear that this argument has arisen before, and it does not seem to have been the subject of any academic consideration. Certainly we were not referred to any such commentary. It is idle I think to deny that the argument has some weight at the level of language if the two sections are taken on their own. However, it is I think relevant that the Civil Liability Act is an extremely complex provision which while a significant advance in the law, is not so perfect a construction that there are not provisions in the Act which do not fit comfortably together. To understand these novel and complex provisions, it also necessary to understand the general structure of the Act and the function of these sections. In particular, as McMahon and Binchy, Irish Law of Torts, 4th Ed., (Dublin: Bloomsbury, 2013), p.840 at para. 20.67 points out, the provisions of s.35 “harmonise with the provisions relating to contribution, to ensure fair treatment, not only between plaintiffs and defendants, but among the defendants themselves”. It is necessary therefore to address the sections in that wider context.

62 It is in my view certainly open to argument that s.35(1)(i) operates too harshly. The underlying theory however is clear, and in principle at least, sensible. One of the main provisions of the 1961 Act was to allow the allocation of liability (and consequently damages) between defendants and indeed other concurrent wrongdoers responsible for the damage suffered by the plaintiff. If a plaintiff did not sue one such wrongdoer (with the consequence then that such wrongdoer may not be available for a claim of contribution by other concurrent wrongdoers who have been sued), then the Act through s.35 requires that the plaintiff must bear that loss.

63 It is significant that it is accepted that the definition of concurrent wrongdoers includes anyone responsible for the same damage to the plaintiff and specifically includes circumstances where the wrong on the part of one or both potential concurrent wrongdoers under s.11(2)(b) “may be a tort, breach of contract or breach of trust, or any combination of them”. If there was no provision for the identification of the plaintiff with the liability of a concurrent wrongdoer not sued by him or her, then the plaintiff might have less incentive to sue all potential concurrent wrongdoers, and might be able to throw all the loss upon one defendant. Once it is accepted however that intentional tortfeasors, contract breakers and trust breachers are also concurrent wrongdoers from whom contribution might be sought, it would make little sense to read the identification provisions of s.35 as only having a practical effect in relation to those acts of a concurrent wrongdoer which constitute negligence or want of care. This is particularly so since the want of care might not be such as would give rise to a cause of action whereas the intentional tort or breach of contract certainly would. Indeed it is difficult to see how a party, who is guilty of want of care which does not amount to a cause of action, can be said to be a concurrent wrongdoer.

64 The potential outcome of the defendant’s argument in this regard is more than peculiar. The combined effect of s.34 and s.35 would be is that certain acts (want of care) which would be contributory negligence if committed by the plaintiff, cannot be treated as contributory negligence through the vehicle of s.35 (since they would not necessarily amount to concurrent wrongdoing). On the other hand, while the plaintiff must be identified under s.35 with the acts of the concurrent wrongdoer not sued for the purposes of contributory negligence, certain of those acts (torts other than negligence, breaches of contract, breaches of trust), would nevertheless not constitute contributory negligence, even though, if the same concurrent wrongdoer is sued in the proceedings by the plaintiff, or joined as a third party, contribution in respect of those acts of concurrent wrongdoing would be available to the other defendants. There would be have symmetry or harmony between the provisions of s.35(1)(i) and the contribution provisions if that was the case. One might wonder then as to the purpose to be served by identifying the plaintiff with the acts of the concurrent wrongdoer who was not sued. If s.35 merely means that the plaintiff will be fixed with the acts of a concurrent wrongdoer which amount to negligence, it would have been simpler to have stated so explicitly rather that use the more general (and on this argument, misleading) words of s.35.

65 It seems to me that this section can be understood more readily and more naturally as merely a deeming provision which deems the liability of the statute barred defendant a form of contributory negligence which can then be pleaded against the plaintiff in reduction of the plaintiff’s award. The purpose of a deeming provision is to give a meaning to something for a particular purpose which it would not otherwise have more generally. Breach of contract or an intentional tort is not normally contributory negligence if committed by the plaintiff, but when committed by a concurrent wrongdoer not sued and now protected by the Statute of Limitations, it is deemed to be so for the limited purposes of the identification provisions of the Civil Liability Act.

66 Even read in this way the section has the capacity to operate harshly in a number of circumstances. First, in a case such as the present, where there are a large number of defendants who may be concurrent wrongdoers on the grounds of vicarious liability but who it may be very difficult to identify, and who the plaintiff may not have the capacity to identify, it may be unfair to reduce the plaintiff’s award for failure to join all potential parties. No provision is made for the possibility of a lack of knowledge on the part of the plaintiff of the existence of a concurrent wrongdoer when proceedings are commenced, and indeed when a claim came to be statute barred. Finally, the symmetry between the provisions of s.35(1)(i) and the general provisions on contribution, while close is not perfect. The limitation period for the initial claim by the plaintiff against the wrongdoers, is not identical to the limitation period for a claim for contribution. Thus the fact that a plaintiff’s claim against a concurrent wrongdoer has become barred does not necessarily preclude a claim for contribution by any other concurrent wrongdoer who has been sued. In such circumstances, which may of course be unusual, a defendant may have the option of either relying on the provisions of s.35(1)(i) or joining the concurrent wrongdoer as a third party. A related difficulty arises because s.35(1)(i) is triggered merely by the failure to sue a party against whom a claim is statute barred and may take no account of the capacity of such a party to meet an award of damages. In such a case although the plaintiff might not have recovered damages against that concurrent wrongdoer, the failure to sue the wrongdoer may result in a reduction of the plaintiff’s award. It may be that these difficulties do not arise, or that there are other and further difficulties. The matter was not argued before us in any detail and arises because it has been necessary to consider the underlying rationale of s.35(1)(i). I raise these matters in order to suggest that the section might benefit from further detailed scrutiny. For the purpose of this case however, I am satisfied that the High Court was correct in identifying the plaintiff with the wrongdoing of the manager who was not sued. I would accordingly dismiss the notice to vary.

67 There is however considerable force in the plaintiff’s contention that once it was determined that the manger was a concurrent wrongdoer and also vicariously liable for the acts of the second named defendant, there was no basis either in theory or in fact for apportioning responsibility 85%-15%. Since vicarious liability is liability without fault, it is difficult to see that there could be different “degrees of fault” as contemplated by s.34. Accordingly s.34(1)(a) applies and liability is apportioned equally. In any event, even if it were possible to apportion responsibility between two entities having vicarious liability, it was not possible in this case because there was an evidential deficit as to the relationship between the manager on the one hand and the Marist Order on the other. I do not think it is necessary to determine whether in any such case it may ever be possible to identify “degrees of fault” so as to apportion liability between two defendants both vicariously liable for the acts of a third: in this case the manager was the employer who had the primary liability for the acts of the employee. The relationship between the Order and its member may be such as to give rise to vicarious liability, but it would be wrong to hold that it can almost entirely displace the legal responsibility of an employer. Accordingly, I would apportion responsibility equally between the Order and the manager. In the judgment he delivers, Charleton J. concludes that the Marist order had sufficient control over the first defendant that it (assuming for these purposes that it could be separately sued) would be wholly responsible, and its liability would exclude entirely the liability of the person or entity that was the employer of the first named defendant. For my part I doubt that the evidence in this case is of sufficient detail and strength to provide a sound foundation for such a conclusion, and I would be extremely slow to hold that the liability of an employer can be lost, avoided or transferred other than by express agreement. Furthermore I think it would be undesirable to introduce this element of uncertainty into the relationship between employer and employee.

68 It follows from the foregoing that in theory all members of the Marist Order, at least those who are members at the time of the alleged abuse, are vicariously liable, but only Brother McGowan has been sued. There was some discussion therefore as to whether s.35(1)(i) applied in this context as well. I do not necessarily accept that it would be appropriate to permit a party such as the first named defendant in this case, to rely on the failure of the plaintiff to sue other members of a religious order when knowledge as to the identity of such members was something much more clearly within the power and control of the first named defendant rather than the plaintiff. However, in any event as is apparent, this issue was not raised by the pleadings, and accordingly it is neither necessary, nor appropriate, to address the question of the potential liability of other members of the Marist Order for the purposes of s.35(1)(i).

Quantum

69 The plaintiff’s damages were assessed at €350,000 by the trial judge. The assessment of damages for personal injuries is not a precise science, and becomes particularly difficult when it involves the assessment of general damages for the psychological impact of a wrongdoing. Much more information is available about the impact of physical injuries on human beings, and the courts have considerable experience in dealing with such injuries. Furthermore, it is also possible to be more confident about what the likely position of a plaintiff would have been, had a physical injury not occurred. The plaintiff now attributes difficulties he has experienced in his life such as changed jobs and difficulty forming lasting relationships to the discovery of the abusive behaviour of the second defendant. But some difficulties in life may not be capable of being traced to any single causal event, still less one for which compensation is available. The difficulties of assessment of damage to the psyche is compounded in cases such as this which extend over a considerable period, and where for the majority of the period, the plaintiff was unaware of the abusive conduct because he had blanked it from his memory. I do not wish in any way to depreciate the significance of these matters for the plaintiff. I do consider that the process of bringing proceedings, confronting a wrongdoer and having the determination of the court are more important factors in cases such as this than for example in a car accident. Confronting an abuser and obtaining a public and authoritative determination that the defendant is responsible for the abuse, is an important vindication of a plaintiff. While this is a distressing case, it must also be acknowledged that there have been even more severe and traumatising cases of abuse. There is regrettably a spectrum of cases with which the courts are now familiar, and any case must be located on that spectrum. This case while significant and serious, is not at the most extreme end of the scale.

70 There must also be some correlation between the figures awarded for injuries of this nature and general damages awarded for catastrophic personal injuries resulting in some cases in a quadriplegic life from a very young age, or severe brain damage. While very large awards are made in these cases, the bulk of the award relates to special damages in respect of past and future care. The component for general damages for pain and suffering rarely exceeds the amount awarded in general damages in this case. Awards for residential abuse may be a useful point of comparison. There was I think only limited evidence as to these matters which might benefit from greater scrutiny in another case. In the circumstances of this case however, I would reduce the overall general damages to a figure of €150,000. When the deemed contributory negligence under s.34 is taken into account, this would result in an award of €75,000.

71 I have had the opportunity of reading in draft form the judgment delivered today by Charleton J. and have greatly benefitted from its range, detail, and depth of thought. There is as he observes a large measure of agreement between us. This is a very difficult case. Charleton J. cannot agree that the finding of the High Court as to liability against Brother McGowan should be upheld on the narrow basis on which my decision rests. He would however remit the case to the High Court to consider if liability could be established against Brother McGowan, not individually as a member of an unincorporated association, but rather in his capacity as Provincial and on the basis that such an office is a corporation sole. I recognise the learning which he has brought to bear on this issue. I agree that the entire question of the potential liability of a religious institution, or order, first at common law, and then after the coming into force of the Constitution is something which deserves study and argument. If correct it might provide a basis for the liability of the Order through its Provincial, which the cases, in different ways, consider appropriate. However I cannot see that it is a possible route in this case which was commenced 15 years ago and concerns events more than 25 years earlier. If it was clear that additional legal argument would be decisive then there might be some argument for permitting that argument to be made, even at this stage. However the question of potential liability as a corporation sole is one not canvassed before, and is by no means clear cut. It was discounted by Geoghegan J in O’Keeffe. It would be necessary to amend the pleadings, seek discovery, call evidence and then engage in an entirely new argument. That would not be the resolution of this case, but in truth the commencement and determination of another. Accordingly I regret I cannot agree to the course he suggests.

Spes -v- Windcanton Ireland Ltd

[2016] IEHC 194

Barr J.

52. In relation to training, Mr. Conlan noted that the plaintiff had received some training in manual handling, when he first joined the company. Thereafter, there were periodic instances of refresher training. He accepted that this was good practice. However, he stated that in this case, there was a complex lifting operation involving lifting different products, from different heights and placing them at different heights in the cages; in such circumstances, the employee would need to be trained how to assess the task. Mr. Conlan stated that the training as described by the plaintiff was inadequate. Turning, without moving the feet, was very risky. The operative should be trained always to move their feet when carrying out a turning manoeuvre.

53. Mr. Conlan pointed out that there was a duty on the employer under s. 10 of the Safety, Health and Welfare and Work Act 2005, to ensure that the employee is provided with adequate training, in a language that he understands. Mr. Conlan pointed out that in some of the documents which had been put to the plaintiff, the trainer had just ticked the boxes, indicating that the refresher training had been given by means of a question and answer session. Mr. Conlan referred in this regard to the document dated 2nd November, 2011, headed “Employee Training Declaration” in respect of the activity of “Picking 25kg bags of bakery”. The plaintiff had stated in his evidence that he was only asked if he knew what to do when lifting a 25kg bag. He had said that he did know what was involved in lifting such an item. He had signed the declaration form. Mr. Conlan stated that this was not adequate refresher training. The operative should have been given a demonstration as to how to lift such items, then the operative should be asked to demonstrate the correct technique himself and this should be followed by a question and answer session.

54. The engineer pointed out that in the Risk Assessment document dated 28th March, 2008, under the heading manual handling risk – the task, it had been stated that the risk for repetitive handling was “trivial”. The witness stated that this was not correct. The operation was all about repetitive handling. It was a definite risk. The important thing was the technique used by the operative in carrying out such repetitive lifting tasks.

55. Mr. Conlan stated that there were a number of statutory duties which were imposed upon the defendant in the circumstances which arose in this case. In particular, s. 8(2) of the Safety, Health and Welfare at Work Act 2005 provided as follows:-

“(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:

(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;…

(e) providing systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health;…

(g) providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health, and welfare at work of his or her employees;

(h) determining and implementing the safety, health and welfare measures necessary for the protection of the safety, health and welfare of his or her employees when identifying hazards and carrying out a risk assessment under section 19 or when preparing a safety statement under section 20 and ensuring that the measures take account of changing circumstances and the general principles of prevention specified in Schedule 3.”

56. Mr. Conlan also referred to the provisions of the Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. 299/2007) and in particular to Regulation 69 thereof, which provides as follows:-

“An employer shall—

(a) take appropriate organisational measures, or use the appropriate means, in particular mechanical equipment, to avoid the need for the manual handling of loads by the employer’s employees,

(b) where the need for the manual handling of loads by the employer’s employees cannot be avoided, take appropriate organisational measures, use appropriate means or provide the employer’s employees with such means in order to reduce the risk involved in the manual handling of such loads, having regard to the risk factors specified in Schedule 3,

(c) wherever the need for manual handling of loads by the employer’s employees cannot be avoided, organise workstations in such a way as to make such handling as safe and healthy as possible, and—

(i) taking account of the risk factors for the manual handling of loads specified in Schedule 3, assess the health and safety conditions of the type of work involved and take appropriate measures to avoid or reduce the risk particularly of back injury, to the employer’s employees,

(ii) ensure that particularly sensitive risk groups of employees are protected against any dangers which specifically affect them in relation to the manual handling of loads and the individual risk factors, having regard to the risk factors set out in Schedule 3,

(iii) ensure that where tasks are entrusted to an employee, his or her capabilities in relation to safety and health are taken into account, including, in relation to the manual handling of loads by employees, the individual risk factors set out in Schedule 3, and

(iv) when carrying out health surveillance in relation to the manual handling of loads by employees, take account of the appropriate risk factors set out in Schedule 3.”

57. Schedule 3 of the Regulations deals with the risk factors for manual handling of loads. In sub paragraph 2 thereof, the following is provided:-

“A physical effort may present a risk particularly of back injury if it is:…only achieved by a twisting movement of the trunk…”

58. Paragraph 4 of Schedule 3 states:-

“The activity may present a risk particularly of back injury if it entails one or more of the following requirements: over-frequent or over prolonged physical effort involving in particular the spine… a rate of work imposed by a process which cannot be altered by the employee.”

59. Paragraph 5 of Schedule 3 provides:-

“Individual Risk Factors: The employee may be at risk if he or she:…does not have adequate or appropriate knowledge or training.”

60. Mr. Conlan was of the view that the defendant in requiring the plaintiff to work under considerable pressure, and in increasing the pick rate without assessing the workload on the operatives and in failing to train the plaintiff adequately, had acted in breach of the statutory duties outlined above.

The defendant’s case

Evidence of Ms. Sharon Waters

61. Evidence was given by Ms. Sharon Waters on behalf of the defendant. She had been employed with the defendant company since 2003. She started as a picker and remained in that position until 2007. She then became a team leader, where she was in charge of managing jobs on the depot floor. She stated that there was a daily team meeting held each morning, at which she would give out the various tasks to the team members for that day. The plaintiff was part of her team.

62. Ms. Waters outlined how the goods would arrive in on pallets and would be put into the yellow box areas, as shown in the engineer’s photographs. Pickers were assigned to a particular box or area. The pallets were close to the combi cages. There were ten female employees in the distribution centre. They did the same work as the male pickers. All employees were told just to lift whatever they could manage comfortably.

63. In relation to training, Ms. Waters stated that she had been shown how to lift safely. She was shown a video in relation to manual handling and was given a booklet. After that she had been retested, when she had to show that she could lift a box carefully. She was trained by Mr. McDermott and Mr. Gallagher.

64. In relation to the work duties, she stated that these were rotated among the workers in relation to heavy and light duties. She always rotated staff as often as she could. She stated that she was always fair about assigning people to the heavier work. There was overtime available, usually every second weekend. She stated that the plaintiff was always interested in doing overtime whenever he could.

65. Ms. Waters stated that she used to help with the picking. The target rate was raised in 2010, but she felt that it was not too onerous. She stated that if the plaintiff had been assigned to heavy items for two days in a row, he would ask to be moved. She would try to move him to light duties, or if this was not possible, she would try to send assistance to him.

66. In relation to the day of the accident, Ms. Waters said that she had been the team leader on duty that day. She recalled that on coming back from a break, the plaintiff approached her circa 12:00hrs. He said that his back was sore and he asked to go home. She stated that she asked the plaintiff whether he had injured it at work, to which he replied no, that he had injured it while changing a wheel on his car. She stated that she allowed him to go home early. As the plaintiff did not allege that it was an accident at work, she did not fill out any of the forms, or go through any of the relevant protocol, which would have to be adopted if there had been an accident at work.

67. Ms. Waters stated that the protocol referred to provided that if an accident had happened at work, the team leader would take the injured workman to the first aid room, where he would be attended to. She would then take a statement from him and then carry out an examination of the locus of the accident. She would also arrange for such further medical treatment as was necessary. Ms. Waters stated that she did not do this in relation to the plaintiff’s back complaint, as he did not allege that there had been any accident at work. She stated that she did not have any further discussion with the plaintiff about his back complaint. She just allowed him to go home early. Thereafter, he would have submitted a medical certificate to the HR department.

68. Ms. Waters stated that she was made redundant in the summer of 2014, when the company closed down. She was not aware that the plaintiff was making any case that he had been injured at work. In July 2014, she was contacted by Mr. David Condel, in relation to the matter, as she had been the team leader on duty on the day of the accident. She stated that on 11th July, 2014, she made the following brief statement to the company:-

“On 29th October, 2012, Salvormir Spes came to me asking to go home that he hurt his back. I asked Salvomir ‘did it happen in work’; he said ‘no it happened when he was putting the wheel back on his car’.”

69. Ms. Waters stated that she had had a good working relationship with the plaintiff. She stated that there was a good atmosphere on the warehouse floor. If people were slow in relation to a number of picks they did, they were called in to the office for “coaching” to improve their pick rate. She stated that she called the plaintiff in for such coaching on approximately three occasions in ten years.

70. Ms. Waters stated that there were three types of pick: (i) where goods were moved from one pallet to another pallet; (ii) where goods were moved from a pallet and placed in a combi cage; and (iii) where the items were left on a pallet, but were designated as “picks”. She stated that this third type of pick would apply where there was a full pallet of potatoes and if a supermarket needed a full pallet of potatoes, they would be left on the first pallet, but the operative would be able to get the number of picks that were applying to that pallet. She stated that this would happen approximately three times per week. She stated that the bags of potatoes were quite heavy and that the male employees would pick them. She sometimes lifted bags of potatoes, but no other female employees did so.

71. She stated that the plaintiff never complained to her in relation to the pick rate being too onerous. He might have complained if he had been doing heavy duties on the day before and, in such circumstances, she would try to rotate him as best she could.

72. In relation to the targets set, she thought that these were reasonable. She stated that she sometimes did up to 1600 picks per shift. She stated that the plaintiff did not report any earlier accident to her. She had heard his evidence that he had been hit with a pallet truck in 2009, but she was not aware of that; nor was she aware that he had had a back problem in 2011. She stated that he never told her of these problems and she was not aware that he had any history of back problems. She denied that the plaintiff had been singled out to do more heavy work than others. She stated that while she was in charge, the plaintiff would not have been allocated to heavy work over a number of days. She stated that if she had allocated the plaintiff to do heavy work one day, he might come to her and say that he had been assigned to that work yesterday when she was out. She would try to rotate him. She would not have been aware of the assignments for the previous day. In the circumstances, she accepted that it was possible that the plaintiff could have been assigned to heavy duties for two days in a row.

73. Ms. Waters stated that the increase in the pick rate had been brought about due to the fact that they changed the layout of the warehouse. Under the new system they had two rows of cages opposite each other. This had the effect of reducing the amount of walking involved. It was due to this fact that they decided to increase the pick rate. She thought that it was an achievable target.

74. Ms. Waters stated that she was not aware that the plaintiff had made any complaints to Jeff Fitzsimmons or David Kennedy. She stated that she was not present for the training which had been given to the plaintiff, so she could not say what training in manual handling he actually received. She stated that for refresher training, she had been shown a video, she had been given a booklet and she had to demonstrate how to lift a box. She stated that such training was usually four hours long. She stated that she was never asked to tick a box while out on the warehouse floor or in the office. She could not say whether if that had happened to the plaintiff.

75. In relation to the brief statement she had made on 11th July, 2014, she accepted that she had been asked to recall this brief conversation, almost two years after it had taken place.

Evidence of Mr. Cathal Maguire, Consulting Engineer

76. Finally, evidence was given by Mr. Cathal Maguire, Consulting Engineer, on behalf of the defendant. He stated that at the joint inspection held in September 2015, the plaintiff gave a demonstration of the lifting manoeuvre that he had done on the day of the accident. It was clear from this demonstration, that the plaintiff had been trained, because he had adopted a good lifting technique in the course of his determination.

77. Mr. Maguire noted that the plaintiff had complained in relation to the pace of the work. He noted that on the day of the accident, the plaintiff had been working in the “light dairy” section. In that section, he could lift several trays at one time. The target of 1200 picks a day, was normal for distribution warehouses. He stated that when the layout in the warehouse changed, such that the cages were moved closer to the pallets, it was appropriate to increase the pick rate. He noted that the workers had been told just to lift what they were comfortable with. This would vary from person to person. The plaintiff knew the weight of the trays, he had assessed the load and had carried out a number of previous lifts, prior to the one that caused him to suffer pain.

78. The plaintiff had accepted that he had received training when he started with the company and thereafter had been given refresher training, approximately every three years. Mr. Maguire stated that this was a reasonable training regime.

79. In relation to the guideline weights, Mr. Maguire noted that there were different weights for different heights and depending on closeness to the body of the item being lifted. At the bottom level, the guideline weight was 10kg. This could be to take account of tiredness during the day. So the guideline weight would be decreased to take account of increased risk. On the day of the accident, the accident occurred towards the beginning of the day after a couple of hours, so it was not necessary to factor in this reduction. A reduction of 30% in the guideline weight would only be appropriate when the lifting operation was being carried out over an entire day. If the plaintiff had lifted three trays, this would have been completely within the guidelines. At two hours into the shift, it would be reasonable for him to lift five trays; that was a decision for the picker himself.

80. The engineer noted that the plaintiff accepted that he had received some training, but stated that due to the fact that he was working under pressure, he was not able to adhere to good lifting techniques. He did not think this was an issue. The rate of 1200 picks per shift constituted a reasonable work rate. In his opinion, it was not undue pressure.

81. In cross examination, Mr. Maguire accepted that he had not been present at the time when the plaintiff received his training, so he could not say what actual training he had received. However, he understood from the documentation that had been produced, that the plaintiff had received adequate training in manual handling techniques. He noted that the plaintiff demonstrated a safe lifting technique, when he gave his demonstration at the joint engineering inspection. He was of opinion that the plaintiff hurt himself when he twisted, rather than turning, in the correct manner by moving the feet. Turning the feet was a basic part of a safe turning manoeuvre. The training should deal with turning rather than twisting. He noted that the plaintiff demonstrated safe turning technique, when he gave his demonstration at the joint inspection. He was of opinion that the plaintiff did not suffer his injury while doing the lifting part of the manoeuvre, but had suffered the injury while turning. This suggested that the plaintiff failed to turn his feet as he turned his body. A failure to turn correctly was a common cause of back injury.

82. Mr. Maguire stated that he had not spoken to Ms. Waters in advance of compiling his report. He had spoken to Mr. Condel, the health and safety manager. He was not aware that it was alleged that the plaintiff had said that he had hurt his back when changing the wheel of a car. That was never said to him. He was just aware that no accident at work had been reported. The joint engineering inspection had been carried out on 18th September, 2015 and his report was dated 28th September, 2015.

83. In relation to training, Mr. Maguire accepted that he could not state what training was actually given to the plaintiff. He accepted that in relation to some of the training documents, which had been produced to the plaintiff, there were some documents which suggested that it was just a box ticking exercise. In relation to the Employee Training Declaration dated 18th January, 2012, he accepted that the box at the bottom of the form, where the trainer was asked to give a narrative of the context of the training, had been left blank. This should have been filled in by the trainer. If this had been done, the court would know the extent of the training received.

84. In relation to the document dated 2nd November, 2011, concerning the task of “Picking 25kg bags of bakery”, the plaintiff had indicated that he was merely asked whether he knew how to lift a 25kg bag to which he had replied “Yes.” Mr. Maguire accepted that that would not constitute adequate refresher training. The person should be given a demonstration of the lifting technique. Mr. Maguire stated that he would be critical of this as a box ticking exercise.

85. Similarly, in relation to the Employee Training Declaration in respect of “Low level order picking” dated 2nd November, 2011, Mr. Maguire stated that he would likewise be critical of this document, where only a box indicating verbal questioning had been ticked by the trainer.

86. In relation to the Risk Assessment dated 28th March, 2012, some tasks were indicated to be “tolerable”, which would mean that it was a low risk activity. In relation to the heading marked “Repetitive Handling”, which was entered as being “trivial”, Mr. Maguire stated that there was repetitive handling in this case and therefore one could not say that the risk was not applicable. He thought that this may have been a risk assessment for a particular type of lift, being a 20kg load. On the following page, there was an entry reading “Risk level is dependent on capability of employee”, which was deemed to be “trivial”. Mr. Maguire was not able to interpret this portion of the document. He noted that under the heading “Risk to anyone untrained” it was deemed to be “substantial”. However, he did not think this was applicable to the plaintiff, as he had been trained in manual handling.

87. It was put to the witness that the plaintiff had stated that the only training he got in manual handling constituted a demonstration of lifting an empty box from the floor onto a table. Mr. Maguire said that this means of demonstrating a lifting technique was standard in the industry. It was put to him that the plaintiff had complained that he was not able to understand all the training due to his poor level of English. Mr. Maguire stated that he was not aware of that, but he accepted that it could be a problem for the plaintiff. He thought that the assistance of a work colleague, who did speak his language, would have been helpful.

88. It was put to Mr. Maguire that the plaintiff had stated that he could not adopt correct lifting techniques, due to the excessive pick rate which he was working under, the witness did not accept this. He stated that a pick rate of 1200 was not excessive. It was a standard pick rate, when the items are located close to each other. It was put to him that the plaintiff had said that the trainers knew that workers could not do that level of target, while adopting correct lifting techniques and that they had laughed when this was suggested to them. Mr. Maguire stated that he would be surprised if that had happened. In relation to not understanding the questionnaire that may have been given to him, Mr. Maguire stated that the plaintiff was an adult and that if he did not understand the questionnaire, he should have told his supervisor that he did not understand it. However, Mr. Maguire stated that he could not comment on the training given. He accepted that the records of the training could be more complete.

89. Mr. Maguire did not accept that if the plaintiff was working under pressure, this would lead to him taking shortcuts in the lifting manoeuvre. He stated that if the plaintiff had been under pressure, he should have complained to a team leader. It was put to him that the plaintiff had said that he had made complaints to his team leaders. Mr. Maguire stated that Ms. Waters said that he did not complain to her about the pick rate and this was because the pick rate was an industry average. It was not excessive. He did not accept that the plaintiff was working under pressure given the target rate and the weight of the items being lifted.

90. In relation to the plaintiff’s previous back problems in 2008 and 2011, Mr. Maguire pointed out that when an employee is out sick, he can only return to work when he is certified by his doctor as being fit to return to work. So this would not be a problem a year later in 2012.

91. Mr. Maguire stated that there should never be a twisting movement, but there could be turning, which would involve changing direction by moving the feet. If the operative was doing manual handling in a relatively open space, there should be no twisting at all. He accepted that there was an increase in risk if an operative was twisting; it was for this reason that people were told not to twist, if it could be avoided.

92. Mr. Maguire reiterated that during the joint engineering inspection, the plaintiff had demonstrated correct lifting techniques. It was for this reason he drew the inference that the plaintiff had received adequate training in manual handling. He accepted that under s. 10 of the 2005 Act, there was a duty on the employer to provide training in a language that the operative could understand. However, Mr. Maguire stated that if the plaintiff got refresher training, at a later time when his English had improved, this would cover any defect in the initial training. He did not think that there was any necessity to give additional training when the pick rate was increased. He accepted that under the 2007 Regulations, there was an onus on the employer to take account of the fact that the plaintiff had a previous back injury. In this regard, the employee could not return to work, until he had been certified as fit to do so by his doctor. There was then a duty on the employer to monitor him for a short while after he returned to work. The employer would not need to continue monitoring the employee if he had returned to work more than a year previously.

93. Mr. Maguire accepted that under the provisions of Schedule 3 to the Regulations, if the work was strenuous and involved twisting of the trunk, this would increase the risk of injury to the operative. However, he stated that if the load was too heavy, that was a matter entirely for the plaintiff, as he could select the amount of goods that he would lift at any one time. If he needed to turn as part of the manoeuvre, he should have moved his feet. Mr. Maguire stated that he accepted the points set out at item 4 of Schedule 3, relating to the rate of work imposed on an employee. However, he said that the rate of work which was imposed in this case was reasonable.

94. Finally, in the course of re-examination, Mr. Maguire pointed out that the plaintiff did not complain of inadequate training at the joint engineering inspection. His complaint was that he was put working with the heavy items too frequently and that the pick rate was too high, so that he had to abandon his training in respect of manual handling. The plaintiff complained that he had been treated differently to the other workers in relation to the items that he had to lift and that there was an excessive pick rate.

Conclusions on Liability

95. The central issue in this case is as to whether the plaintiff received adequate training from his employer. Mr. Conlan, the plaintiff’s engineer, has stated that in his opinion, if the plaintiff only received the training as described by him and Mr. Grecko, such training was deficient, as it did not cover how to turn safely while carrying a load.

96. Mr. Maguire, the defendant’s engineer, has stated that in his opinion, the accident was probably caused by the plaintiff failing to move his feet in the course of turning from the pallet, while holding five trays of yogurt. Mr. Maguire stated that the plaintiff knew the correct lifting and turning technique, because he demonstrated the lifting and turning procedure correctly at the joint engineering inspection held on 18th September, 2015.

97. That inspection was carried out at the defendant’s former premises, which is now used by Musgraves. From the photographs, it is clear that the area was un-congested at the time of the engineering inspection. When the plaintiff gave a demonstration of what he was doing at the time he experienced the back pain on the day of the accident, he did so slowly so that photographs could be taken of the various stages of the lifting manoeuvre. In such artificial circumstances, which were far removed from the actual conditions under which the plaintiff was working at the time of the accident, one cannot reach the conclusion that because correct lifting and turning technique was used at the time of the engineering inspection, that the plaintiff therefore had received adequate training in such techniques in 2005, when he started with the company, or in the course of subsequent refresher training on the job.

98. The clear evidence of the plaintiff and Mr. Grecko, was to the effect that they did not receive any training in how to turn safely, while carrying a load. The people who allegedly gave the training and refresher training to the plaintiff, being Mr. Fitzsimmons, Mr. Moran and Mr. McDermott, were not called to give evidence. The pocket book which was allegedly furnished to the plaintiff was not produced, nor were the videos which were allegedly shown to him as part of the training. This may be due to the fact that the company has since closed down. In such circumstances, the relevant witnesses, who gave the training to the plaintiff, may not have been available. Be that as it may, I cannot hold that the plaintiff received adequate training without some evidence in that regard.

99. No documentary evidence was produced in respect of the initial training given to the plaintiff when he joined the company in 2005. The forms which were produced in evidence, all related to training allegedly given to the plaintiff a considerable time after he had joined the company. The plaintiff has said that such refresher training was very brief, in that he was only asked a couple of questions and then told to sign the requisite form. No evidence was called as to the content of the refresher training given on the relevant dates. It does seem to have been somewhat of a box ticking exercise. In the absence of evidence from the trainers as to what training they gave in the refresher training sessions, I cannot hold that these sessions covered safe turning technique when carrying a load. I accept the evidence of the plaintiff that the refresher training only comprised a brief question and answer session. I note that evidence was given by Ms. Waters that such refresher sessions were fairly comprehensive and could last a number of hours. However, she accepted that she had never given any training to the plaintiff. In the circumstances, I prefer the plaintiff’s account as to the rudimentary nature of the refresher training given to him.

100. I note also the evidence given by Mr. Peter Keogh, Consultant Surgeon, that the plaintiff’s pain was due to annular tears in the discs in his lower back. Such tears are more likely to be due to repetitive bending, lifting and twisting rather than being due to just one incident. Annular tears could be due to wear and tear in the plaintiff’s back, which may have been asymptomatic, but trauma could have rendered them symptomatic. Mr. Keogh is of the view that one episode of lifting was not likely to be the cause of the annular tears. It was more likely to be one lift of a number of lifts which caused this injury. This supports the conclusion that the plaintiff’s back was damaged over time and that the episode on 29th October, 2012, was just the last in a series of lifting manoeuvres, which caused the plaintiff’s injury.

101. I am satisfied that the plaintiff and Mr. Grecko have given truthful evidence in relation to the training that they received from the company. I accept their evidence that they did not get training in how to turn correctly while carrying a load. That being the case, the defendant was negligent in its failure to provide adequate training to the plaintiff.

102. I note the evidence of Ms. Waters that she recalled the plaintiff coming to her on the day of the accident and saying that he had hurt his back when he changed the wheel on his car. She stated that as this was not an accident at work, she did not make a note of it, or fill out any accident report form. She just let the plaintiff go home early. The defendants have stated that the first they knew of any alleged accident at work, was when they received the letter of claim from the plaintiff’s solicitor in December 2013. It was some months later in July 2014, that Ms. Waters was approached by Mr. Condel, the defendant’s health and safety officer, and was asked to make a statement. I find it difficult to believe that at that remove, some 21 months post-accident, Ms. Waters was able to recall so clearly the content of a brief discussion, which she had had with the plaintiff when, according to her evidence, there was nothing particularly memorable about the conversation.

103. The plaintiff denied telling Ms. Waters that he had hurt his back changing the wheel of his car. He stated that he just told her that he had back pain and wanted to go home. He stated that while he did own a car, he had never changed the wheel on it.

104. Insofar as there is a conflict between the plaintiff and Ms. Waters as to what was said on the day of the accident, I prefer the evidence of the plaintiff in this regard. Having observed his demeanour while giving evidence, I am satisfied that he is a truthful witness. I find that on the balance of probabilities, the plaintiff’s version of this conversation is the correct one.

105. The plaintiff stated that while he did know correct lifting techniques as distinct from correct turning technique but that due to pressure of work in the distribution centre, he was not always able to adhere to correct lifting technique, particularly when working under pressure and in a confined space. In this regard, I note that photograph No. 4 of the defendant’s engineer’s book of photographs gives some idea of the number of combi cages on the premises at or around the time of the accident. It is clear from this photograph that the plaintiff could have been obliged to work in fairly confined spaces when unloading pallets.

106. I am satisfied that the plainitff’s injury arose due to a combination of factors, being: the lack of adequate training in safe turning techniques; the imposition of a rate of work that was excessive; that the workers were forced to take shortcuts when lifting items in an effort to achieve their targets and working in confined spaces, which increased the likelihood of suffering a twisting injury.

107. I accept the evidence given by the plaintiff that he made complaint to Geoff Fitzsimmons and David Kennedy in relation to the pressure which he was working under, in an effort to reach his pick rate target. Nothing was done in relation to these complaints. This evidence was not contradicted by the defendant.

108. I do not accept that the plaintiff has established that he was singled out for more heavy duties, such that, if it was quiet in the chill area, he would be moved to the ambient area, if it was busy. While this may have happened, I am not satisfied that it established any discrimination against, or unfair treatment of, the plaintiff. The plaintiff also complained that he was not rotated in the same way as other workers were, between light and heavy duties. Ms. Waters accepted that on occasion, the plaintiff had made complaint to her when he was assigned heavy duties, that he had been assigned to heavy duties on the previous day by another team leader. She stated that she would try to rotate him onto lighter duties if that was possible, and if it was not possible, she would try to send assistance to him. I accept Ms. Waters’ evidence in this regard. I am not satisfied that the plaintiff was discriminated against in relation to the rotation of workers between heavy and light duties.

109. Having regard to my findings as to the inadequacy of the training given to the plaintiff, I find that the defendant was also guilty of a breach of statutory duty and, in particular, breached s. 8(2)(e) and (g), and s. 10 of the Safety Health and Welfare at Work Act 2005. The defendant was also in breach of Regulation 69 of the Safety, Health and Welfare at Work (General Applications) Regulations 2007, and Schedule 3 thereto and in particular paras. 4 and 5 thereof.

110. In all the circumstances, I am satisfied that the defendant was negligent and in breach of statutory duty in failing to train the plaintiff in relation to safe turning techniques. This lack of adequate training was exacerbated by the fact that the plaintiff was obliged to work under excessive pressure so as to reach his targets. The company did not heed his complaints when he complained about this state of affairs. In addition, I am satisfied that on occasion, the warehouse was very cluttered with pallets and combi cages, such that it was very difficult for the plaintiff to carry out a satisfactory lifting and turning manoeuvre, when putting items onto the combis. In the circumstances, the defendant is liable for the injury to the plaintiff’s back which became apparent in October 2012.

111. There is no evidence that the plaintiff failed to take sufficient care in relation to the carrying out of his duties either on the day of the accident, or in the days and months leading up to it. Insofar as the plaintiff may have adopted an unsafe turning technique, I am satisfied that this was due to the fact that he had not been adequately trained in safe turning techniques. Accordingly, I decline to make any finding of contributory negligence against the plaintiff.

t did not take account of any contingency deduction along the lines of Reddy v. Bates. Mr. Tennant pointed out that under current government proposals, all employers in the State are to be obliged to make occupational pension schemes available to their employees in future years and to make contributions to those schemes on the employees behalf. This would mean that any future loss of earnings to the plaintiff will have “knock on effects” on these pension contributions, as the pension contributions will be a percentage of pay. The valuations given in the actuary’s report were in respect of future loss of earnings only and did not allow for ancillary loss in respect of such pension contributions in future years. The author suggested that the non-inclusion of any additional claim in this regard should serve as a potential offset to any Reddy v. Bates type contingency deduction from the above future loss of earning

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Legal Guide has a Better Version of this Article

Legal Blog Covers Tax and Regulation

Common Law Duties

Cases

Lendrum -v- Clones Poultry Processors Ltd

Coffey v Kavanagh

Stachowski -v- Diamond Bar Ltd

Everitt v. Thorsman Ireland Ltd.

Lynch v Binnacle Ltd t/a Cavan Co-Op Mart

Deegan v Langan

Wilson v Tyneside Window Cleaning Co

McDermid v Nash Dredging & Reclamation Co Ltd

Timer v AEC Limited

Parker v PFC Flooring Supplies Ltd

Jaguar Cars Ltd v Coates

Wilson v Tyneside Window Cleaning Co

General Cleaning Contractors Ltd v Christmas

Morris v West Hartlepool Steam Navigation

Hannington v Mitie Cleaning (South East) Ltd & Anor

Coxall v Goodyear Great Britain Ltd

Hickey -v- McGowan & ors

Spes -v- Windcanton Ireland Ltd

Legal Guide has a Better Version of this Article

Legal Blog Covers Tax and Regulation

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