Bradley v Córas Iompair Éireann

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 09 February 1976
• Neutral Citation: 1975 WJSC-SC 278
• Court: Supreme Court
• Docket Number: [1973 No. 2811 P],(137–1975)
• Date: 09 February 1976

1975 WJSC-SC 278

THE SUPREME COURT

HENCHY J.

GRIFFIN J.

KENNY J.

(137–1975)

BRADLEY v. CORAS IOMPAR EIREANN

REVERSING HIGH-18.7.75

PATRICK BRADLEY

v.

CORAS IOMPAIR EIREANN

1 Judgment of Henchy J. delivered the 9th February 1976 (nem, diss)

2 The plaintiff was employed by the defendants as a signalman on the railway. He worked at Rathduff railway station, which is half way between Cork and Mallow. It was part of his duties to turn up every third Sunday to replace the lamps on certain signal poles on the railway line and to oil the points on the line.

3 It came his turn to perform those duties on Sunday the 19th December 1971. It was a wet and windy evening when he proceeded about 4 p.m. to change the lamps. There were nine signal poles to be attended to. He climbed the ladder attached to each of eight of those poles, removed the lamp and replaced it with a fresh one. In the case of the ninth pole, he had climbed the ladder attached to it, had taken out the lamp and replaced it with a fresh one, had come down the ladder with the used lamp, had oiled the points on the rails, and had replaced the lamps on the other eight signal poles, when he noticed that the lamp on this pole was not lighting. He decided to replace it with yet another fresh Lamp. He ascended the ladder with the new lamp, inserted it in the signal in place of the one that had failed to stay alight, and was descending the ladder, holding the failed lamp in his right hand, with his left hand holding the left shaft of the ladder, when his right foot slipped of a rung of the iron ladder and he fell to the ground and suffered injuries.

4 He sued the defendants as his employers for damages for negligence. The action came on for hearing in Cork before a judge and jury. In the witness box the plaintiff raised the possibility that, as be had oiled the points just before the accident and as he was wearing rubber boots, oil may have got on to the sole of his boot and may have caused it to slip off the circular steel rung of the ladder. This, however, never passed the level of a theoretical possibility. The real allegation of negligence - the one on which the case was run - came with the evidence of Mr. Brennan, the engineer called on behalf of the plaintiff. He did not claim that he had any qualifications or experience in railway engineering. He expressed the opinion that, having regard to the nature of this ladder, the work that had to be done on it, and the fact that the plaintiff would have to do that work in inclement weather, it was dangerous unless it was enclosed by a safety cage. Counsel for the defendants objected to this evidence. It was the first he had heard of such an allegation from the plaintiff. Particulars of negligence had been given before the trial by the plaintiff's solicitors and they had made no reference to such negligence. The defendants" witnesses had come to Cork to meet the case as pleaded, and now a radically different allegation of negligence was being put forward. However, the judge overruled the objection and allowed the case to proceed on the basis of this evidence. I venture to think it would have been better if an adjournment had been granted to enable this particular of negligence to be formulated, so that the defendants could investigate it properly. The transcript of the evidence suggests that the defendants may not have had an adequate opportunity of investigating the legal, technical and safety implications of the suggested safety cage.

5 In the event, after an unsuccessful application by counsel for the defendants at the end of the evidence for the defence to have the case withdrawn from the jury, and a further unsuccessful application to have a question on contributory negligence put to the jury, the issue of negligence was decided against the defendants by an affirmative answer to a single question asking whether the defendants had provided a safe place of work for the plaintiff. Damages were assessed at £6,886. The defendants now appeal to this Court. Damages are not in issue in the appeal, but counsel for the defendants argue that the finding of negligence should not stand, primarily because the evidence did not support it. Because of my conclusion on that submission, I do not consider it necessary to rule on the other grounds of appeal argued, such as that a question on contributory negligence should have been put to the jury.

6 Having regard to the run of the case and the judge's charge to the jury, it is clear that the jury's finding that the defendants had not provided the plaintiff with a safe place of work was tantamount to an acceptance by them of the contention that the ladder should have been fitted with a safety cage. The real question therefore is whether the evidence justified such a finding.

7 Firstly, as to the evidence dealing with the physical circumstances. The pole in question is a hollow steel pole 6??#x2033?? in diameter and about 20??#x2032?? high. It stands midway between the main line and a siding line. Those two lines, according to a technical expert called by the defendants, are 10??#x2032?? apart. The ladder is a near-vertical steel ladder 11??#x2033?? wide, running to the top of the pole, permanently fixed to the pole by two steel stays at different heights, and set into the ground at the foot thereof. The lamp and signal are 15??#x2032?? 3??#x2033?? high on the pole. The clearance between the ladder and the two lines is 4??#x2032?? 6½??#x2033??. The safety cage suggested by Mr. Brennan would consist of a series of eliptical rings of flat steel, running around the ladder at about 12??#x2033?? intervals and held together by a vertical flat bar. This would produce an eliptical steel cage within which a person could ascend and descend the ladder without risk of falling. The clearance between the ladder and the rere of the cage would be about 18??#x2033??, and the cage would project on either side of the ladder about 9??#x2033??. This would reduce the clearance between the ladder and the line on either side from 4??#x2032?? 6½??#x2033?? to 3??#x2032?? 9½??#x2033??.

8 Mr. Brennan's evidence was not that a reasonably careful employer in the circumstances of the defendants should have provided this cage, but that "it is the only way to ensure that a person (using the ladder) would not have an accident". The defendants did not seek to controvert that, but the witnesses they called gave uncontradicted evidence that this kind of uncaged ladder affixed to a signal pole is in accordance with standard railway practice; that there are over 1,000 of them in use in the railway system of this country; that they are not to be found with...