Rory O'Connor (plaintiff) v Cafferkey Developments Ltd (defendant).

Personal Injuries - Employee acting in the course of his employment - Contributory negligence - Assessment of damages for present and future loss.

The High Court (before Mr Justice Flood); judgment delivered 29 July 1997.

The plaintiff had, as a matter of fact, been authorised to carry out the work in which he was engaged when he suffered the accident giving rise to the proceedings, and the defendant was guilty of a want of care by failing to provide its employee with appropriate equipment. However, the plaintiff should have appreciated that his method of working was patently dangerous.

Mr Justice Flood so held in awarding damages for present and future loss to the plaintiff and in assessing contributory negligence at 15 per cent and making a decree reduced accordingly.

Sean Ryan SC and Dominic Hussey BL for the plaintiff; David Byrne SC and Brendan Gogarty BL for the defendant.

Mr Justice Flood said that the essential issues in this claim for damages for personal injury sustained by the plaintiff in the course of his employment with the defendant were: firstly, whether the accident had occurred while the plaintiff was acting in the course of his employment; and, secondly, whether the plaintiff was guilty of contributory negligence.

The plaintiff was a maintenance fitter and mechanic who was employed at the defendant's builder's yard. The defendant was a site development company and the plaintiff was employed to service machinery used in the course of the business and to carry out general maintenance repairs as required in the yard.

Some days prior to the accident, the managing director of the defendant had a conversation with the plaintiff concerning a welded repair to a trailer and the plaintiff said that he had a friend who was a welder and could do the work. According to the evidence of the plaintiff, the managing director also instructed him to arrange to have a pole welded to the front of a portakabin to which a spot light could be attached. When the plaintiff's friend arrived, he and the plaintiff set about carrying out both tasks. In fixing the pole to the portakabin, it was necessary to weld the pole at a point seven or eight feet above ground level. They could find no ladders in the yard and in order to reach this height, they put a pallet on the forks of a forklift truck and raised it to the appropriate height to use as a trestle from which to work. The plaintiff ascended to roof level by climbing up the mast of the forklift. In descending so as to lower the pallet to a more appropriate height, he slipped and, with his foot, hit one of the controls thereby causing the fork and pallet to descend trapping his hand and injuring it quite severely.

Mr Justice Flood said that he preferred the evidence of the plaintiff to that of the defendant's managing director in relation to the conversation authorising him to do the relevant work and in relation to the absence of ladders in the yard. He also said that he was aware of other cases in which a forklift had been used in a similar manner, with somewhat similar results. He said that he was satisfied that the plaintiff was authorised to do the work and that as a matter of probability there was no alternative means of doing it other than using the forklift. However, as the plaintiff was a qualified fitter and mechanic used to dealing with machinery he should have appreciated that his use of the forklift must have been patently dangerous. He found that the defendant was guilty of a want of care for its employee's safety by failing to provide him with appropriate plant and equipment and that the plaintiff was guilty of contributory negligence to the extent of 15 per cent.

The plaintiff had sustained a crush injury to his dominant right hand, in which he had broken two fingers and all knuckles. He had lost his ring finger below the bottom knuckle and had had to undergo twelve operations and skin grafting. He was still attending hospital as an out-patient seven months after the accident. As a result, he had difficulty in driving, using spanners and in a variety of everyday activities. He was no longer able to engage in his favourite past-time, clay pigeon-shooting. He still had discomfort and his work now consisted of, in the most part, driving a van and doing light maintenance work.

Mr Justice Flood awarded £47,500 as compensation for the injury and loss already suffered. For future injuries, including the discomfort, cosmetic deformity and reduced ability to apply his trade and engage in his favourite sport, the judge awarded £40,000. Special damages as vouched were also awarded and a decree was given for 85 per cent of the total.

Solicitors: Hughes & Liddy (Dublin) for the plaintiff; City Gate (Dublin) for the defendant.