Dunleavy v Glen Abbey Ltd

JurisdictionIreland
JudgeMr. Justice Barron
Judgment Date01 January 1992
Neutral Citation1991 WJSC-HC 1893
Docket Number6525p/1988
CourtHigh Court
Date01 January 1992
DUNLEAVY v. GLEN ABBEY LTD

BETWEEN

DAVID DUNLEAVY
PLAINTIFF
-V-
GLEN ABBEY LIMITED TRADING AS BABYGRO IRELAND LIMITED
DEFENDANT

1991 WJSC-HC 1893

6525p/1988

THE HIGH COURT

Synopsis:

EMPLOYMENT

Employee

Safety - Employer - Duty - Breach - Working conditions - Statutory regulations - Infringement - Workman injured while carrying heavy package - (1988/6525 P - Barron J. - 9/5/91)

|Dunleavy v. Glen Abbey Ltd.|

STATUTE

Duty

Breach - Employee - Safety - Employer - Duty - Conditions of work - Statutory regulations - Infringement - Workman injured while carrying heavy package - (1988/6525 P - Barron J. - 9/5/91)

|Dunleavy v. Glen Abbey Ltd.|

WORDS AND PHRASES

"Process"

Employee - Safety - Employer - Duty - Breach - Working conditions - Statutory regulations - Infringment - Workman injured while carrying heavy package - Whether workman employed in a process - (1988/6525 P - Barron J. - 9/5/91) - [1992] ILRM 1

|Dunleavy v. Glen Abbey Ltd.|

Citations:

FACTORIES ACT 1955 (MANUAL LABOUR)(MAXIMUM WEIGHTS & TRANSPORT) REGS 1972 SI 283/1972 REG 6

NURSE V MORGANITE CRUCIBLE LTD 1989 1 AER 113

FACTORIES ACT 1961

FACTORIES ACT 1955 (MANUAL LABOUR)(MAXIMUM WEIGHTS & TRANSPORT) REGS 1972 SI 283/1972 REG 3(1)

FACTORIES ACT 1955 (MANUAL LABOUR)(MAXIMUM WEIGHTS & TRANSPORT) REGS 1972 283/1972 REG 7

1

Judgment of Mr. Justice Barron delivered the 9th day of May 1991.

2

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

3

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

4

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

5

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

6

The word "process" as used in these Regulations is not defined. The word has been the subject of judicial interpretation in similar Regulations in England. Its meaning in Regulations relating to processes involving asbestos was considered by the House of Lords in Nurse v. Morganite Crucible Ltd. 1989 1 All E.R. 113. In that case, a Divisional Court had given leave to appeal to the House of Lords and had certified the following point of law as being of general public importance:

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

7

The question was not answered exactly as it was posed. In the speech of Lord Griffiths with which the other members of the Court agreed, he said at page 120:

"where the word "process" is used in the regulations it means any operation or series of operations being an activity of more that a minimal duration."

8

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

9

Regulation 6 of these Regulations is as follows:-

10

2 "6(1) Every person shall, prior to being assigned to -

11

(a) a process to which these Regulations relate, ........

12

receive adequate training or instruction in working techniques relating to the process for the purpose of safeguarding health and preventing accidents.

13

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

14

(3) Whenever a person...

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