Doherty v Bowaters Irish Wallboard Mills Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 11 February 1968
• Docket Number: [1964. No. 1897 P.]
• Date: 11 February 1968

Supreme Court.

[1964. No. 1897 P.]

Doherty v. Bowaters Irish Wallboard Mills Ltd.

DENIS DOHERTY

Plaintiff

and

BOWATERS IRISH WALLBOARD MILLS LIMITED, Defendants (1)

Employer and workman - Statutory duty - Breach - Whether duty absolute - Personal injuries - Damages - Statute - Interpretation - Factories Act, 1955 (No. 10 of 1955), s. 34.

Appeal from the High Court.

The plaintiff's action was tried before Mr. Justice McLoughlin and a jury on the 17th to 21st May, 1965. At the conclusion of the plaintiff's evidence, counsel for the defendants applied to the trial judge to have the plaintiff's case withdrawn from the jury on the grounds that the plaintiff had not adduced sufficient evidence to establish prima facie that the defendants had been in breach of a statutory duty or that they had been negligent. The trial judge heard sub-missions, in the absence of the jury, from counsel for the parties for and against the proposition that s. 34, sub-s. 1(a), of the Factories Act, 1955, imposed an absolute duty to refrain from using the hook of the defendants' crane for the purpose of raising or lowering persons, goods or materials when the hook was not of adequate strength. The trial judge ruled that the said sub-section 1(a) did impose an absolute duty, and he refused the defendants' application for a direction. The defendants adduced evidence on the issue of damages and the trial judge left that issue only to the jury. The jury assessed damages at £72,500 and, as the defendants had

already paid the sum of £216 to the plaintiff, judgment for £72,284 and costs was entered in favour of the plaintiff.

The defendants appealed to the Supreme Court on the ground that the trial judge's ruling on the issue of an absolute statutory duty was erroneous and on the ground that the damages assessed by the jury were excessive.

Sect. 33, sub-ss. 1 and 2, of the Factories Act, 1955, enact that:—

"(1) Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.

(2) Every hoist or lift shall be thoroughly examined by a competent person at least once in every period of six months, and a report of the result of every such examination in the prescribed form and containing the prescribed particulars shall be signed by the person making the examination and shall within fourteen days be entered in or attached to the general register."

Sect. 34 of the Act of 1955 enacts as follows:—

"34.—(1) The following provisions shall be complied with as respects every chain, rope or lifting tackle used for the purpose of raising or lowering persons, goods or materials:

• (a) a chain, rope or lifting tackle shall not be used unless it is of good construction, sound material, adequate strength and free from patent defect;

• (b) a table showing the safe working loads of every kind and size of chain, rope or lifting tackle in use, and, in the case of a multiple sling, the safe working load at different angles of the legs, shall be kept posted in the store in which the chains, ropes or lifting tackle are kept, and in prominent positions on the premises, and any chain, rope or lifting tackle not shown in the table shall not be used, so, however, that the foregoing provisions of this paragraph shall not apply in relation to any lifting tackle if the safe working load thereof or, in the case of a multiple sling, the safe working load at different angles of the legs is plainly marked upon it;

• (c) a chain, rope or lifting tackle shall not be used for any load exceeding the safe working load thereof as shown by the table aforesaid or marked upon it as aforesaid;

• (d) all chains, ropes and lifting tackle in use shall be thoroughly examined by a competent person at least once in every period of six months or at such greater intervals as the Minister may prescribe;

• (e) a chain, rope or lifting tackle, except a fibre rope or fibre rope sling, shall not be taken into use in any factory for the first time in that factory unless it has been tested and thoroughly examined by a competent person and a certificate of such a test and examination specifying the safe working load and signed by the person making the test and examination has been obtained and is kept available for inspection;

• (f) every chain and lifting tackle except a rope sling shall, unless of a class or description exempted by certificate of the Minister upon the ground that it is made of such material or so constructed that it cannot be subjected to heat treatment without risk of damage or that it has been subjected to some form of heat treatment (other than annealing) approved by him, be annealed at least once in every fourteen months, or, in the case of chains or slings of half-inch bar or smaller, or chains used in connection with molten metal or molten slag, in every six months, so, however, that chains and lifting tackle not in regular use need be annealed only when necessary;

• (g) a register containing the prescribed particulars shall be kept with respect to all such chains, ropes or lifting tackle, except fibre rope slings.

(2) If the Minister is not satisfied as to the competency of the person employed to make any examination under this section or as to the thoroughness of the examination, he may require a re-examination by a person nominated by him, and the occupier shall give the necessary facilities for such re-examination.

(3) In this section 'lifting tackle' means chain slings, rope slings, rings, hooks, shackles and swivels."

The plaintiff, who was 33 years old and an employee of the defendants, was injured in the defendants' factory when the hook of a crane broke and the load, being carried by the crane, fell on him. As a result of the accident the plaintiff suffered from permanent, and almost complete, paralysis. In an action in the High Court the plaintiff claimed damages from the defendants and alleged that they had been in breach of a statutory duty imposed by s. 34, sub-s. 1(a), of the Factories Act, 1955. That sub-section enacts that lifting tackle shall not be used for the purpose of raising or lowering persons, goods or materials unless it is of good construction, sound material, adequate strength and free from patent defect. At the hearing of the action before a judge and jury, the trial judge ruled that the defendants had been in breach of an absolute duty to refrain from using the hook of the crane for such purposes while it was of inadequate strength, and he left the issue of damages only to the jury. The jury assessed damages at £72,500 of which approximately £34,500 could be attributed to general damages. Judgment was entered accordingly in favour of the plaintiff with costs. On appeal by the defendants on the issues of liability and damages, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Lavery, Haugh and Walsh JJ.; O'Keeffe J. dubitante), 1, that the provisions of s. 34, sub-s. 1(a), of the Factories Act, 1955, impose distinct and absolute duties and that, accordingly, the defendants' appeal on the issue of liability should be dismissed.

Reilly v. Beardmore & Co. 1947 S.C. 275 considered.

2. ( Ó Dálaigh ó dálaigh C.J.. and Walsh J. dissentiente). That the amount of the damages assessed by the jury was excessive and that there should be a retrial on that issue.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

Mr. Justice Walsh will read the first judgment with which I wholly concur.

Walsh J. :—

On the 18th June, 1964, the plaintiff was employed as a worker by the defendants in their premises at Athy in the County of Kildare. The defendants' premises were a factory within the meaning of the Factories Act, 1955, and part of the equipment of that factory was an overhead travelling crane. On the date in question the plaintiff, in the course of his work, was struck by a load being carried on the crane when the hook, from which the load was suspended, broke and the load fell upon the plaintiff. No question of negligence on the part of the plaintiff arises. It was alleged that the accident was entirely due to the negligence of the defendants. At the trial it was contended that the defendants were negligent both at common law and because of alleged failure on their part to comply with the requirements of ss. 34 and 35 of the Factories Act, 1955. Ultimately, so far as statutory duty was concerned, the plaintiff took his stand upon the allegation that there was a breach of the provisions of s. 34 of the Act of 1955 and, for the purpose of this appeal, it is unnecessary to consider the allegation of common-law negligence.

It was also admitted that the accident was due to a defect in the hook of the crane, but it was contended on behalf of the defendants that this was a latent defect of which they did not know, and could not have known, and that the breaking of the hook was not due to any negligence or breach of statutory duty on their part. There was no suggestion that the fracture in the hook was due to anything other than a defect in the hook itself. While there was evidence given of periodic inspections of the crane and of the parts and of the different types and methods of inspection which were available for testing the properties and strength of hooks, such as the one in question, during their working lives,

and while there was evidence of the appearance of wear on the bearing surface of the hook in question, it was not necessary to consider this evidence in this appeal. On the assumption, which was the assumption of fact most favourable to the defendants, that the failure of the hook was due to a defect which was not a patent defect but was caused by something in the nature of metal fatigue, as was contended by the defendants, the learned trial judge ruled that, as a matter of law, the obligation imposed upon the defendants by s. 34, sub-s. 1(a), of the Act of 1955 was an absolute duty and that, as was agreed upon the evidence, since on the...