Reid v Valiant Pharmaceuticals Ireland trading as Bausch & Lomb

• Jurisdiction: Ireland
• Judge: Mr. Justice Mícheál P. O'Higgins
• Judgment Date: 31 July 2023
• Neutral Citation: [2023] IEHC 540
• Court: High Court
• Docket Number: RECORD NO: 2017 9574 P

Between

Margaret Reid

Plaintiff

and

Valiant Pharmaceuticals Ireland T/A Bausch & Lomb

Defendant

[2023] IEHC 540

RECORD NO: 2017 9574 P

THE HIGH COURT

Appearances:

Stephen Lanigan O'Keeffe SC, Elaine Morgan SC and Zoe Cahill BL instructed by Jacob & Twomey Solicitors, Enniscorthy, Co Wexford for the plaintiff.

Paddy McCarthy SC and Johny Walsh BL instructed by Nolan Farrell and Goff Solicitors for the defendant.

Judgment of Mr. Justice Mícheál P. O'Higgins delivered on the 31 ^st July 2023

1 . This is a claim for damages for personal injuries allegedly suffered by the plaintiff in an accident in the defendant's factory on the 30 ^th of May 2015. The defendant was the plaintiff's employer at the time of the accident and operated a factory premises on the Cork Road in Waterford, trading under the well – known name of Bausch & Lomb.

2 . The plaintiff was a trained accountant but at the time of the accident was a factory operative. She was then 54 years of age and is now 62. The defendant manufactures soft contact lenses in the factory in Waterford. The company employs in the region of 1,650 staff and has been in Waterford since 1980.

3 . Liability was fully in issue in the proceedings and the case raised issues of negligence, breach of statutory duty, causation, foreseeability, admissibility of certain documents and legal issues concerning the quantum of damages. The defendant asserted inter alia that the plaintiff had exaggerated and misstated her injures and, in that regard, relied upon video footage from a private investigator, which I will come to presently.

4 . The accident occurred at the injection moulding department of the Bausch & Lomb factory. The facility is a state-of-the-art plant built to the highest standards of hygiene to produce soft contact lenses. The plaintiff was employed as an automonomer operator and her job was to run the machines which make the contact lenses in the moulding department. The plaintiff was taking blocks of cassettes of lens moulds, known as “towers”, from a series of roller tracks on a large, wheeled trolley known as a stand – down rack. The tower of moulds is essentially a magazine which holds moulds for automated feeding to the contact lens making process. All told, there are 12 roller tracks, called cavities, on the trolley on three levels, each with four tracks. The stand – down trolley is used for storage of the mould towers. Injection moulding operators place the towers on their appropriate tracks and the monomer operators (such as the plaintiff) take the towers away, at the other end of the trolley, according to a production schedule issued to the operator by a computer.

5 . Both parties provided the court with helpful photographs showing the system of work and the plaintiff's vantage point at the time of the accident. Looking at photograph no. 3 in Mr. Flahavan, the engineer's photographs, the red coloured stoppers on the trolley show the outfeed end where the plaintiff was working at the time of the accident. Photo 4 shows the infeed end where the infeed operator loads the towers of moulds at the other end of the trolley. It is helpful to note that the outfeed stoppers are coloured red whereas the infeed stoppers are coloured white. As the photographs show, the tracks on the trolley are identified by plastic numbers/stoppers at the end of each track. The stoppers act as a safety mechanism to prevent the tower falling off the track and falling off the trolley. To take a tower off the track, an operator will usually lift the number and pull the tower over the number, and it will then be available to lift off the track. Once the tower is off the track, the stopper is supposed to flip back into the upright position automatically to stop any further towers falling.

6 . The agreed evidence was that the incident occurred at approximately 10:15 on a Saturday night shift on the 30 ^th of May 2015. The plaintiff had come from her workstation at the monomer area in order to collect a number of towers of moulds for processing. She brought her own smaller trolley (see photograph 5 of Mr. Flahavan's photographs) to the outfeed end of the stand – down trolley on Inject 35 and was taking towers from the outfeed end in accordance with her instruction printout. She had nearly completed loading her trolley and was bending down at the outfeed end to take some towers off the bottom shelf of the stand – down trolley, which the plaintiff believes was numbers 10 or 11 in the photographs. Her unchallenged evidence was that suddenly and without warning a tower fell from one of the upper levels off the rack and struck her forcibly on the right shoulder. She believed that there were two injection moulding operators in the area at the time. An operator named Pauline Lonergan was running injection moulding machines 34 and 35 and another operator named Geraldine was on machines 36 and 37. Because she did not see the offending tower fall, she does not know what caused the tower to fall on top of her, but she believed that Pauline or whoever was loading the towers at the other end of the trolley may have been pushing towers down the track along the rollers, causing the tower to fall off the rack at the outfeed end and down onto her shoulder.

7 . The agreed evidence is that the accident was investigated by the defendant but no witnesses to the actual incident, other than the plaintiff, were found. There were however witnesses to the aftermath of the incident when moulds from the fallen tower were scattered on the floor and it was soon realised that the plaintiff had suffered an accident. I will come back to the investigation carried out by the company presently.

8 . As explained in the report of Mr Harte, the plaintiff's engineer, at the front of each shelf of the stand – down trolley one finds the catches or stoppers that I have described. These have numbers on them, and these stoppers are 15 mm wide by 75 mm high and the top of these stoppers project 15 mm above the rollers. The stoppers are flipped up to a horizontal position to allow removal of the towers from the shelves (see photograph no. 4 of Mr. Harte's photographs). Photograph no. 6 shows a close up of a tower of moulds in situ on the rack. All of the towers are of uniform dimensions and weight. The tower is 175mm by 180 mm long by 320 mm high. Each tower contains 25 trays of lenses. A typical tower weighs about 5.63 kg which I am told in “old money” equates to a little under 1 stone in weight.

9 . In the discussion section on page 4 of his report Mr. Harte makes the straightforward point that with the plaintiff being in the position which she was, i.e. crouched down to remove a tower from the bottom shelf, then in his view it would not have been physically possible for her to cause a tower to fall from one of the upper shelves. In his oral evidence, which I will consider in detail later on in this judgment, Mr. Harte is heavily critical of the defendant's system of work and in particular what he regards as the failure of the defendant to take practical steps to prevent or at least mitigate the risks presented by the system of work which the defendant chose to operate.

Evidence of witnesses on liability

10 . All told, the court heard from fourteen witnesses in this case. These were the plaintiff, Margaret Reid, Dr. Catherine Corby consultant psychiatrist, Susan Tolan vocational consultant, Bernard Hart, the plaintiff's engineer, Dr. Catherine Feeney the plaintiff's general practitioner, Neil Riley, the plaintiff's consultant ENT surgeon, Jabir Nagaria, the plaintiff's consultant neurosurgeon, Edward Flahavan, the defendant's engineer, Pauline Lonergan, an employee of the defendant, Ann Marie Hayes, an employee of the defendant who gave the plaintiff first aid, Michael O'Riordan, the defendant's consultant orthopaedic surgeon, the private investigator Mathew O'Brien, Tony Power, the safety director of the defendant and Alan O'Loinsigh, the defendant's vocational consultant.

11 . Six of these witnesses gave evidence on liability: for the plaintiff, the plaintiff herself and her engineer Bernard Harte. For the defendant, the engineer Mr. Flahavan, Pauline Lonergan who worked in Bausch and Lomb, Ann Marie Hayes who gave the plaintiff first aid and Tony Power, the head of health and safety.

12 . The defendant did not call evidence from Elaine Lee who had apparently been told in the aftermath of the accident that the tower had fallen from cavity 6 of the stand-down trolley and who had apparently checked cavity 6 after the accident and found it to be in working order. Nor did the defendant call Robert Dunphy, an in-house engineer who investigated the circumstances of the accident. I will come back to the significance or otherwise of those two witnesses not giving evidence later on in this judgment.

Evidence of the plaintiff on liability

13 . The plaintiff gave evidence that she was originally from East Cork but lives now in Kilmacow, County Kilkenny. She is married and has four children, two boys and two girls all of whom have done well. Growing up, the plaintiff attended the Mercy Convent in Dungarvan as a boarder and did her inter cert and leaving certificate exams there. She achieved good results in her leaving certificate and from 1978 to 1980 attended Cork Regional College and did a two year certificate in business studies. From 1981 to 1982 she completed a certificate in junior management with ANCO. From 1982 to 1985 she studied accountancy in the evening and at weekends at Cork Regional Technical College. She completed her association of Chartered Certified Accountants examinations in 1985. Whilst doing that study, from 1981 having registered with a recruitment agency she did temporary bookkeeping work with a number of different employers. From 1981 to approximately 1984 she did contract work as an accountant with a number of different companies and from...