Feeney v Pollexfen and Company

• Jurisdiction: Ireland
• Judgment Date: 21 May 1931
• Date: 21 May 1931
• Court: Supreme Court (Irish Free State)

Feeney v. Pollexfen & Co.

ELIZABETH FEENEY

Plaintiff

and

W. & G. T. POLLEXFEN & CO., Ltd., Defendants (1)

Supreme Court.

Master and servant - Negligence - Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93) - Negligence of supervisors - Common employment - Unauthorised use of materials not supplied by employers - Factory and Workshop Act,1901 (1 Ed. 7, c. 22), sects. 79, 104 - Docks Regulations, 1928 - "Dock, wharf, or quay" - "Cargo-stage."

The plaintiff brought an action under the Fatal Accidents Act, 1846, to recover damages in respect of the death of her husband as a result of injuries sustained through the alleged negligence of the defendants, their servants and agents, in the provision, construction, maintenance, and supervision of a staging or scaffolding, the property of the defendants, in a store-shed at the Deep Water Berth, Sligo Quay. The defendants were the consignees of a cargo of maize, which was made up in sacks on the ship. The sacks were then carted from the ship's side to the shed by men employed by the defendants, and were there stacked by another gang of men, of whom the deceased was one, also employed by the defendants. For the purpose of stacking the sacks to a sufficient height, a staging or gangway of planks and trestles, forming an inclined plane, and composed of materials supplied by the defendants, was used. There were two pairs of planks, one going from the floor to a trestle, the other from the trestle to the face of the sacks. To relieve the sag in the second pair of planks, it was customary to insert some support between the trestle and the sacks and beneath the planks, but leaving a clear space of about one inch between it and the planks. The materials for this support (a barrel and blocks of wood) were supplied by the defendants, and were available in the shed. On the occasion in question it was necessary to stack the sacks be a greater height than usual, and the men had been so instructed by T., the foreman, who along with C., was employed by the defendants to supervise the men. When raising the second pair of planks to a higher position, the men discarded the usual support, and substituted an old door, which would not stand by its own weight, but had to be wedged under the planks. The door was lying in the shed, but did not belong to the defendants, and the men did not look for more materials belonging to the defendants. Neither T. nor C. knew of, or authorised, the substitution of the door. The deceased was the first to take a sack up the reconstructed staging, and, when he did so, the second pair of planks pivoted on the door and fell, the deceased sustaining injuries from which he died. It was common case that the substitution of the door caused the collapse of the gangway. There was evidence that the gangway was safe with or without the usual support to relieve the sag, that this support had been used for many years without accident, and that, after the accident, the stacking was successfully completed with the usual arrangement.

In addition to negligence, the plaintiff alleged breach by the defendants of Regulations made under the Factory and Workshop Act, 1901, "in respect of the processes of loading, unloading, moving, and handling goads in, on, or at any dock, wharf, or quay, and the processes of loading, unloading, and coaling any ship in any dock, harbour, or canal," and applying "to all docks, wharves, quays, and ships as aforesaid." The particular Regulation relied on dealt with a "deck-stage or cargo-stage." From the evidence it appeared that the shed was a large store, made of iron and covered with corrugated iron, and having a timber floor. It was situated about 20 yards from the side of the quay where the ship berthed. It was the property, or under the control, of the Sligo Harbour Commissioners, who had allowed the defendants, for many years, to use it for storage

purposes. The terms of any licence or lease to the defendants were not proved. The trial Judge put two questions (Nos. 9 and 10), founded upon the Regulations, to the jury, subject to deciding later whether the Regulations applied, but this matter was not subsequently decided.

The jury found—1, that the defendants negligently failed to provide materials reasonably fit and proper for the construction of suitable staging; 2, that their negligence caused the accident; 3, that T. and C. were reasonably competent men to discharge the duty of supervising the staging and its maintenance; 4, that T. and C. were negligent in supervising the staging on the day of the accident; 5, that their (T.'s and C.'s) negligence caused the accident; 6, that the deceased and the men in his gang (a) were not negligent in substituting the door for the barrel, but (b) were negligent in using the reconstructed staging without test; 7, that neither (a) nor (b), nor both, caused the accident; 8, that the deceased did not freely and voluntarily undertake the risk which caused his death; 9, that the staging which collapsed was not substantially and firmly constructed and adequately supported, and, where necessary, securely fastened; and, 10, that that caused the accident. Upon these findings, the trial Judge entered judgment for the plaintiff for the amount of damages assessed by the jury. Upon appeal by the defendants:

Held, by the Supreme Court, that there was no evidence to support the second finding of the jury, and it should be set aside; and that, on the doctrine of common employment, the third finding relieved the defendants from liability for the negligence found by the jury in findings Nos. 4 and 5.

Held, further (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), that the Regulations had not been shown to be applicable to the shed or staging in question, and the ninth and tenth findings should therefore be set aside.

Held, accordingly (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting), that the appeal should be allowed and judgment entered for the defendants.

Application to the Supreme Court, on behalf of the defendants, for an order that the verdict and judgment for the plaintiff, dated 5th November, 1930, should be set aside, and that, in lieu thereof, judgment should be entered for the defendants, or, in the alternative, that a new trial should be ordered. The grounds of the application are set out in the judgment of Kennedy C.J.

The plaintiff's claim was for damages for the death of her husband, Michael Feeney, from injuries received on 1st August, 1929, through the negligence of the defendants, their servants and agents, in and about the provision, construction, maintenance, and supervision of a staging or scaffolding, the property of the defendants, at the Deep Water Berth, Sligo Quay, in the town of Sligo. She sued as the widow of the deceased, on behalf of herself and of her children, all dependants of the said deceased.

The action was tried before Hanna J. and a jury. The facts of the case have been summarised in the head-note, and are fully set out in the judgment of Kennedy C.J., where the findings of the jury are also set out. Upon those findings judgment was entered for the plaintiff for the amounts assessed by the jury.

Cur. adv. vult.

Kennedy C.J. :—

This action was brought under the Fatal Accidents Act, 1846, by the plaintiff, Elizabeth Feeney, to recover damages in respect of the death of her husband, Michael Feeney, described as a dock labourer, who died as the result of injuries sustained in an accident while stacking bags of corn in a "store-shed" (so called in the pleadings) near Sligo Quay on the 1st of August, 1929. The plaintiff alleges that the damage she has suffered was caused by the negligence of the defendant company, its servants and agents, "in and about the provision, construction, maintenance and supervision of a staging or scaffolding, the property of the defendants, at the Deep Water Berth, Sligo Quay." The plaintiff sues on behalf of herself (as widow) and of the seven children of the deceased man.

The action was tried by Mr. Justice Hanna and a jury, who found for the plaintiff, and awarded to her and her children sums amounting in all to £900. Judgment was given accordingly, against which verdict and judgment the defendant company has taken this appeal.

The main relevant facts are, shortly, as follows:—

The S.S. "Charterhulme" was on the day in question in the Deep Water Berth at Sligo Quay discharging a large cargo of maize.

The grain was carried in bulk in the ship's hold, and, for the purpose of transferring it to shore, it was first, in the hold, put into sacks containing different weights, but averaging 17 to 20 stone to the sack. As the grain was bagged each bag was lifted by a winch on to a weighbridge on the deck of the ship, and thence thrown over the ship's side on a plank on to the shore. Several gangs of men were engaged in the work. The bags were taken from the ship's side by men employed by the consignee, the defendant company, working in two gangs, of whom one gang took the sacks of grain from the ship's side and put them into carts, which were then driven to the shed (where the accident occurred), and there the other gang, divided into squads, removed the sacks from the carts and stacked them. The deceased man was employed in the gang engaged at the last process, namely, taking the sacks from the carts and stacking them in the store-shed. All the men worked under the supervision of Mr. Thompson, employed by the defendant company to act as their foreman over the work. There was also an "outside manager" named Currie, who occasionally relieved Thompson.

The shed or store to which the bags of grain were conveyed was a very large store, made of iron, and covered with corrugated iron. It was about one hundred yards long and forty yards wide, and situated about twenty yards from the side of the quay —that is to say, from the ship's side. It was thirteen feet high to the bottom brace of the upper rafter, and had a...