Dunne v Honeywell Control Systems Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Barron
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 1749
• Docket Number: No 11779p/1987
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 1749

THE HIGH COURT

No 11779p/1987

DUNNE v. HONEYWELL CONTROL SYSTEMS LTD

BETWEEN

EDWARD DUNNE

.V.

HONEYWELL CONTROL SYSTEMS LIMITED AND VIRGINIA MILK PRODUCTS LIMITED

Citations:

DALY V GREYBRIDGE CO-OP CREAMERY LTD 1964 IR 497

FACTORIES ACT 1955 S21

FACTORIES ACT 1955 S22

FACTORIES ACT 1955 S23

ROCHE V P KELLY & CO LTD 1969 IR 100

BUILDING (SAFETY, HEALTH & WELFARE) REGS 1959 SI 227/1959 REG 29(1)

O'SULLIVAN V DWYER 1971 IR 275

FACTORIES ACT 1955 S37(1)

SAFETY IN INDUSTRY ACT 1980 S12(1)

FACTORIES ACT 1955 PART 111

MULCAIR V SOUTH EASTERN HEALTH BOARD 1988 ILRM 689

LYNCH V PALGRAVE MURPHY 1964 IR 150

GARRARD V SOUTHEY 1952 2 QB 174

KENNEDY V EAST CORK FOODS 1973 IR 244

BUILDING (SAFETY HEALTH & WELFARE) REGS 1959 SI 227/1959 REG 29

FACTORIES ACT 1955 S37

Synopsis:

NEGLIGENCE

Occupier

Factory - Workman - Injury - Employer - Third party - Service contract - Defendants" equipment - Repairs - Plaintiff injured when visiting defendants" factory to effect repairs - Breach of statutory duty - Contributory negligence - Test applicable - Apportionment of fault - Damages - Factories Act, 1955, s. 37 - Safety in Industry Act, 1980, s. 12 - (1987/11779 P. - Barron J. - 20/7/90) - [1991] ILRM 595 - [1991] I.L.T. 147

|Dunne v. Honeywell Control Systems|

1 Judgment of Mr. Justice Barron delivered the 20th day of July 1990

2 The first named Defendant ("Honeywell") carry on business as suppliers of control systems. The second named Defendant ("Virginia") are customers of Honeywell by whom they have been supplied with control equipment. Honeywell have a service contract with Virginia whereby they maintain this equipment. Terms of that contract have not been given in evidence. The Plaintiff is an electrical technician employed by Honeywell. On the 26th of March 1987 in the course of his employment with Honeywell he went to the premises of Virginia for the purposes of maintaining the control equipment supplied by Honeywell to Virginia.

3 On the day in question the particular job which the Plaintiff was carrying out was to free a control valve which operated the flow of steam to a processor. The particular machine on which he was required to work was housed on the roof of the control room. Access to the roof was by a vertical ladder fixed to the wall of the building. The Plaintiff brought his equipment and his tools onto the roof where he carried out his work. When it was completed he brought down his equipment. He returned for his tools. These were contained in a case. As he was descending the ladder with his case he lost his balance and fell off. He landed on a pipe and sustained severe injuries to his left heel.

4 The Plaintiff now seeks damages against Honeywell for negligence and against Virginia for negligence and breach of statutory duty. Both Defendants allege contributory negligence as against the Plaintiff and also seek either contribution or an indemnity of their respective liabilities against the other of them. Two main issues of fact have arisen. First, whether or not the vertical ladder was safe and secondly whether or not the Plaintiff ought to have ascended and descended the ladder carrying his case of tools.

5 The Plaintiff himself was unaware before his accident of any possible danger in the manner in which he went up and down the ladder. However he did find that use of the left hand rail was impractical as he had to lean back to hold it, that he was unable to get his feet properly on the rungs of the ladder and that he was not able to put his arms around the ladder. In addition he found the ladder itself and the access to the roof very narrow. In describing the accident he said that he was holding the right-hand rail with his right-hand. He had the case on the control room roof, he was holding it by the handle and he slid it across the roof towards himself. As it came off the roof and the weight came on this swung him around suddenly and he lost his grip on the right-hand rail and thereby fell to the ground.

6 Photographs of the ladder have been given in evidence as well as a drawing showing it's several features. The ladder is 300 millimetres wide and approximately three and a half metres high. There is a hand rail on the right-hand upright of the ladder at a distance of four inches out from the upright. When it reaches the platform to which the ladder is the means of access it continues for a short distance. It then bends to the right and again straightens so that it ends up parallel to the position in which it first started. There is no hand rail on the left-hand upright of the ladder. There is a girder to the left of the ladder and the hand rail runs the length of that girder. That hand rail is eight inches laterally from the left-hand upright of the ladder and eight inches out from the face of that upright. The rungs of the ladder are 300 millimetres apart and vary in distance from the wall against which the ladder is placed from 230 millimetres at the bottom to 170 millimetres at the roof. The distance between the two hand rails where they continue above the level of the platform at their widest point is 610 millimetres but the available space is reduced to 500 millimetres by the girder. The available space is further reduced at the roof and below to 390 millimetres.

7 Evidence has been given by three engineers one for each of the parties. Mr. Abbott on behalf of the Plaintiff gave evidence of the various measurements to which I have already referred. He had a number of criticisms to make of the ladder. In the first place it was an addition to the factory premises and had to be built within the constraints of the existing structure. There was insufficient space for the person using the ladder at the point where the two rails were raised above the level of the roof. The space available at the roof, 500 millimetres, was less than the recommended width as set out in the relevent British standard for ladders issued in 1985. The right-hand hand rail where it passed within one and a half inches of a condensate pipe was both less than the standard distance of 3" and could be dangerous, because the pipe was from time to time hot. The steps were both too narrow and too deep and again were in breach of the standard to which he had referred. There were no protective hoops around the ladder which would in the events which happened almost certainly have prevented the Plaintiff from falling. In his view there were a multiplicity of defects of a medium to serious nature. Mr. Tennison who was called on behalf of Honeywell had similar criticisms to make of the ladder. His view was that had there been hoops there would have been no accident. He relied upon the Engineering Equipment Users Handbook for 1982 from which the British standard for 1985 was taken. Mr. O'Neill was called on behalf of Virginia. He took the view that the steps were not too narrow nor too deep. He did not accept that the British standard was generally used in this country while both Mr. Abbott and Mr. Tennison were of that view. There were a number of standards which were used in this country and the steps came within the limits of American standards. He did however say that he would have designed the ladder differently and with different features which would have been more comfortable to use. I prefer the evidence of Mr. Abbot and Mr. Tennison. In my view, the design of the ladder including the several features to which I have referred created a potential danger to those using the ladder.

8 The case with which the Plaintiff was descending the ladder was 150 millimetres deep, 475 millimetres long and 350 millimetres wide. Since there was only a distance of 90 millimetres between the left-hand verticle rail of the ladder and the girder to the left it was not possible to bring the case, even in the manner in which the Plaintiff was holding it, over the edge of the roof without at the same time bringing it over the upright of the ladder. It was clearly a particularly awkward manoeuvre and one which would have involved the Plaintiff in moving his body away from the ladder so as to accommodate the case. This was dangerous because the evidence of Mr. Abbott is that it is important to maintain one's centre of gravity as near to the ladder as possible and this clearly was not possible if he had to lean away in order to bring the case off the roof. This problem was accentuated by the fact that the case weighed over 25 lbs and was an awkward shape. In my view the Plaintiff ought not to have attempted to ascend and descend the ladder while carrying his case.

9 The Plaintiff sustained his injuries by reason of a combination of these two factors. It is necessary now to consider whether these factors were a breach of any duty owed to the Plaintiff by either or both of the Defendants.

10 In Daly .v. Greybridge Co-operative Creamery Limited 1964 I.R. 497 a young boy who was not employed at the creamery was injured by reason of the failure of the Defendants to fence adequately certain machinery in breach of its duty under the provisions of the Factories Act 1955.The Plaintiff was not employed at the factory. It was held that the Defendants owed no statutory duty to the Plaintiff. The reason for this decision is set out in the judgment of Walsh J. at page 502 as follows:

"In the present case the Plaintiff was quite clearly not "employed or working on the premises" within the meaning of ss. 21, 22 or 23 of the Act of 1955 and, indeed, I doubt if he could be held to have been employed or working in any sense of those terms on the occasion of the accident. He was lawfully on the premises but I cannot subscribe to the view adopted by the learned trial Judge that that fact is in itself sufficient to give him the benefit of the statute as I think it is abundantly clear that the object of the act is to protect only those persons who, broadly speaking, are...