Kennedy v Hughes Dairy Ltd

JurisdictionIreland
JudgeFINLAY C.J.,HEDERMAN J,McCarthy J.
Judgment Date01 January 1989
Neutral Citation1988 WJSC-SC 1448
CourtSupreme Court
Date01 January 1989

1988 WJSC-SC 1448

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

176/87
KENNEDY v. HUGHES DAIRY LTD
RICHARD KENNEDY
v.
HUGHES DAIRY LIMITED

Citations:

BRADLEY V CIE 1976 IR 217

MORTON V WILLIAM DIXON LTD 1909 SC 807

PARIS V STEPNEY BOROUGH COUNCIL 1951 AC 367

Synopsis:

NEGLIGENCE

Employer

Duty of care - Standard - Protective clothing - Provision - Employee handling crates of milk bottles - Employee injured when he fell while carrying a crate - Employee's forearm cut above the wrist - Whether employer should have supplied employee with a gauntlet glove which would have protected his arm at the site of the injury - The plaintiff was employed by the defendants as a driver of a forklift truck - His duties included bringing crates containing full milk bottles to a loading bay where the crates were loaded onto lorries which carried the crates away from the defendants" premises - Each crate contained 20 full milk bottles - After the lorries had been loaded and had departed, there were usually about 100 crates left behind because each of them contained one or more broken bottles as well as any remaining full bottles - It was the plaintiff's job to remove the broken bottles from each of those remaining crates and to stack the crates containing unbroken bottles - It was also the plaintiff's duty to clear, by brush and shovel, broken glass from the surface of the ground where the crates had been and to place the broken glass in bins - On 8/2/85 the plaintiff was carrying a crate containing bottles when he trod on the neck of a broken bottle and fell - In the fall the bottles in the crate broke and one of them cut the plaintiff's forearm above the wrist - The plaintiff claimed damages from the defendants for their negligence in failing to provide him with a pair of gauntlet gloves to protect the lower parts of his forearms when he was working - At the trial of the plaintiff's action in the High Court an engineer, who was presented as an expert witness, gave evidence that there had been a foreseeable and major risk of an employee in the plaintiff's position being injured by broken bottles in the manner in which the plaintiff had been injured - That witness based his evidence on his knowledge of the practice adopted in the glass trade but he had no knowledge of the standards generally adopted by milk suppliers such as the defendants - At the conclusion of the evidence adduced on behalf of the plaintiff, the defendants" counsel applied successfully to the trial judge for a direction withdrawing the plaintiff's action from the jury - Having cited ~Bradley v. Coras Iompair Eireann~ [1976] I.R. 217, counsel submitted (a) that there was no evidence of the relevant standard of care adopted by other milk suppliers and (b) that it could not be said that a prudent and reasonable employer would think it obvious folly to fail to provide with gauntlet gloves an employee doing the plaintiff's work - The plaintiff appealed against the order of the High Court - Held, in allowing the appeal, that the trial judge had erred in withdrawing the plaintiff's claim from the jury since there was evidence from which the jury could have reasonably inferred that the defendants had failed to take reasonable care for the safety of the plaintiff: ~Bradley v. Coras Iompair Eireann~ [1976] I.R. 217 examined - (176/87 - Supreme Court - 22/7/88)

|Kennedy v. Hughes Dairy Ltd.|

1

JUDGMENT delivered on the 22nd day of July 1988by FINLAY C.J.

2

This is an appeal brought by the plaintiff against the Order of the High Court dated the 15th May 1987 whereby Blayney J. upon application at the conclusion of the evidence on behalf of the plaintiff withdrew his claim for negligence against his employers from the jury.

3

The plaintiff was employed by the Defendants who are the well-known dairy, as a forklift driver and had been so employed for a considerable number of years prior to the 8th February 1985 on which date he suffered an unfortunate accident.

4

On that date he was carrying out a task which was part of his work on a regular basis of clearing up after the lorries containing crates of milk bottles had taken their supply from the depot in the early hoursof the morning. The evidence was that after this collection a significant number, possibly over a hundred crates, would be left as rejected by the lorry drivers on the basis that each of them contained one or more broken bottles. The task of the plaintiff was to sort out the broken bottles out of these rejected crates; to collect the crates with good bottles left in them in a particular area, and to remove them by forklift truck to a different part of the factory premises. In addition, it was part of the work of the Plaintiff to collect the broken glass from the surface of the depot where the crates had been, by brush and shovel, into bins which were provided there.

5

On the occasion of this accident the uncontradicted evidence was that the plaintiff was carrying a crate of milk bottles to place them in the position from which he would subsequently remove them with the forklift truck. Whilst so doing he stood on the neck of a broken milk bottle and fell. He put out his arm in order to save himself as he was falling andthecrate of milk bottles broke one against another and he received an injury which he described by demonstration to be near the wrist and which was described by the surgeon who attended him, Mr. Seamus O Riain, as being on the forearm, above the wrist. The plaintiff was not able to remember whether before his fall the crate of milk bottles which he was carrying contained any broken bottle, but clearly stated that the accident happened when in the fall the bottles contained in the crate broke one against the other.

6

At the conclusion of the evidence for the Plaintiff the sole ground of negligence asserted on his behalf as being fit to be left to a jury was that his employers had failed to provide him with a gauntlet type glove made of leather or other strong material sufficient to prevent injury through it of broken glass, extending up to his elbow.

7

Evidence was given by an engineer that in his view the provision of such a glove for a person dealing with broken glass was an obvious precaution which should havebeen provided by the management. This witness was not in a position to give any evidence as to what was commonly done in the dairy business or milk supply business with regard to dealing with broken bottles in the way of protective clothing, nor was there any other evidence of any common practice.

8

Counsel for the Plaintiff and the Defendant both at the hearing in the High Court and in this Court agreed that the case fell to be dealt with in accordance with the principles laid down by this Court in Bradleyv. C.I.E. 1976 I.R.

9

In that case Henchy J. in delivering the judgment agreed with by the other members of the Court, accepted with approval the principle laid down in Morton v. William Dixon Ltd. 1909 S.C. together with the "gloss" placed on that in the decision in Paris v. Stepney Borough Council 1951 A.C., resulting in the proposition that in a claim for breach of duty by an employee against his employer at common law, where the fault complained of is that of omission that the Plaintiff must eitherprove that the precaution omitted was one which was commonly done by other persons in like circumstances or must establish that it was a thing that was so obviously wanted that a prudent and reasonable person would think it foolish to omit it. In accepting this principle Henchy J. at page 221 stated:

"In fact it does no more than provide a mode of testing whether in the class of cases to which it refers the employer has taken reasonable care for the safety of him employee or, as it is sometimes put, whether he has subjected him to unnecessary risk."

10

In this case it was conceded on behalf of the Plaintiff that he could not bring himself with in the first part of the proposition laid down in Bradley v. C.I.E. but it was asserted that the evidence of the engineer, which I have shortly summarised, coupled with the evidence of the happening of the accident, brought him with in the secondprinciple.

11

I cannot accept that it does.

12

Having regard to the description of the accident given by the Plaintiff it is clear that thisis not a case where he suffered his injury by reason of the necessity of having to handle broken glass. In such a case one could well conceive of evidence establishing that a reasonable precaution to avoid that particular injury would be to provide the person who had to handle broken glass with protective gloves which would prevent the glass cutting his hand or wrist. In the instant case the accident happened because he fell while carrying a crate containing glass bottles and it happened because those glass bottles in the fall broke each other and landed on his arm which he had put on the ground to save himself from the fall. It seems to me an inescapable conclusion from the description of the accident that the injury which the Plaintiff suffered might just as easily have been inflicted on his side, his shoulder or his chest, as it was on his arm. It would clearly not be reasonable or practicable for an employer to seek to protect his workmen as to the whole of his body or the upper part of his body from cutting by brokenglass in the carrying out of the type of work which the Plaintiff was doing on this occasion. The mere fact that a precaution which could be considered necessary to prevent a different type of accident would by coincidence have also ameliorated or prevented injury from this type of accident, is not in my view, a good ground...

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