Thompson v Dublin Bus

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 05 March 2015
• Neutral Citation: [2015] IESC 22
• Court: Supreme Court
• Docket Number: [S.C. No. 231 of 2010],[Appeal No. 231/2010] [High Court Record No. 2007/5400P]
• Date: 05 March 2015

Between

Vincent Thompson

Plaintiff/Respondent

and

Dublin Bus/Bus Átha Cliath

First Named Defendant/Appellant

and

South Dublin County Council

Second Named Defendant

[2015] IESC 22

[Appeal No. 231/2010]

[High Court Record No. 2007/5400P]

THE SUPREME COURT

Personal injury – Statutory duty – Employer – Plaintiff seeking damages for personal injury – Whether an absolute duty was imposed on the employer

Facts: The plaintiff/respondent, Mr Thompson, is a bus driver employed by the defendant/appellant, Dublin Bus. Mr Thompson was driving a bus on the Tallaght/Boharnabreena route in September, 2005. Having traversed a number of ramps and at approximately the fourth ramp at Kiltipper, the pneumatic suspension of the bus malfunctioned causing a loss of cushion effect and thereby causing an injury to Mr Thompson”s neck and lower back. The High Court held that unless the evidence established that the plaintiff was driving excessively fast then the cause of the suspension collapse was a failure of equipment. The trial judge was satisfied that a proper maintenance regime existed, however on the basis of the statutory duty he concluded that Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 imposed an absolute duty on employers in respect of safety of equipment provided for the use of their employees, referring to Everitt v Thorsman Ireland Limited [2000] 1 IR 256. The plaintiff succeeded in his claim against the defendant. Dublin Bus appealed to the Supreme Court against the finding that the Regulations impose absolute duty on the employer in relation to the safety of equipment provided for the use of its employees. Mr Thompson contended that the duty contained in Regulations 19 and 20 of the 1993 Regulations imposes strict liability on an employer if work equipment fails, relying upon Stark v Post Office [2000] ICR 1013 It was emphasised by Dublin Bus that, having regard to the reasoning in Gallagher v Mogul of Ireland Ltd [1975] 1 IR 204, it was clear that it was necessary to show that preventative measures could have been taken which were not. They submitted that on the facts of the case it was clear that preventative measures were taken in relation to the maintenance of the bus which did not prevent the defect but having taken such preventative measures the duty of the employer was discharged.

Held by Dunne J that, having considered the Regulations, the duty of an employer is to ensure that necessary measures are taken so that work equipment is suitable for use but where it is not possible fully to ensure that work equipment can be used without risk, the duty is to take appropriate measures to minimise any such risk. Dunne J held that this precluded the possibility of construing Regulation 19(a) and (c) as imposing absolute liability. Dunne J held that had it been the case that the Regulations were intended to go further than the Directives, the Framework Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC) and the Directive of the 30th November, 1989 concerning the minimum safety and health requirements for the use of work equipment by workers at work (89/655/EEC), by imposing a standard other than the minimum requirements set out in the Directives by imposing strict or absolute liability on an employer, then in those circumstances it is to be expected that the Regulations would have been expressed clearly in such a way as to make it absolutely obvious that that was the intention in transposing the Directives by means of the Regulations. However, by transposing the Directives in the same terms, it did not seem to Dunne J that the Minister in making the Regulations was seeking to impose a greater obligation than that set out in the Directives. Dunne J concluded that there had not been a breach of any statutory duty imposed by the Regulations; Dublin Bus took the necessary measures to ensure that the work equipment could be used without risk to the safety and health of its employees and insofar as the work equipment failed it was clear that Dublin Bus took the appropriate measures to minimise the risks involved. Dunne J held that the obligations under the Regulations do not impose absolute liability on the employer.

Dunne J held that the appeal should be allowed.

Appeal allowed.

Judgment of Ms. Justice Dunne delivered the 5th day of March, 2015

1 The plaintiff/respondent (Mr. Thompson) is a bus driver employed by the defendant/appellant (Dublin Bus). South Dublin County Council is the local authority with responsibility for the construction and maintenance of the public road at Kiltipper in County Dublin. No issue arises in this appeal against South Dublin County Council.

Background

2 Mr. Thompson was driving a No. 201 bus on the Tallaght/Boharnabreena route on the 27th September, 2005 at approximately 7.55pm. The route in question traversed a number of roadways on which there were a large number of ramps which it was found by the learned trial judge (de Valera J.) conformed with best practice in terms of their dimensions. In the course of driving along the 201 bus route, having traversed a number of ramps and at approximately the fourth ramp at Kiltipper, the pneumatic suspension of the bus malfunctioned causing a loss of ‘cushion effect’ and thereby causing an injury to Mr. Thompson's neck and lower back.

Findings of fact

3 The following findings of fact were made by the learned trial judge:

‘(a) There is no evidence to suggest that plaintiff was driving too fast.

(b) There is sufficient evidence to establish that a proper regime of inspection, maintenance were carried out by the first named defendant.

(c) The construction of the ramps which had been undertaken by the second defendant conformed to the best practice.

(d) The plaintiff did suffer personal injury as a result of the suspension failure which has resulted in an ongoing physical deficit.’

4 The learned trial judge went on to indicate in the ex tempore judgment that he accepted the closing submissions on behalf of the plaintiff to the effect that unless the evidence established that the plaintiff was driving excessively fast then the cause of the suspension collapse was a failure of equipment. He pointed out that if the action was grounded solely on Dublin Bus's common law duty as an employer then in those circumstances the plaintiff's claim would fail as the learned trial judge was satisfied that a proper maintenance regime existed. However he went on to consider the question of the statutory duty which had been pleaded in the case and on the basis of the statutory duty at issue in the case he concluded that the relevant statutory provision, Regulation 19 of the Safety, Heath and Welfare at Work (General Application) Regulations 1993 ( S.I. No. 44 of 1993) appeared to impose what was ‘In practical terms an absolute duty on employers in respect of the safety of equipment [provided] for the use of their employees’. In coming to his conclusion the learned trial judge referred to a decision of the High Court in the case of Everitt v. Thorsman Ireland Limited [2000] 1 I.R. 256, a judgment to which I will refer later in the course of this judgment, and concluded as follows:

‘In these circumstances while I accept that the first named defendant carried out a proper system of inspection, maintenance and repair and that no blameworthiness attaches to it, it has a statutory duty which has not been discharged and therefore the plaintiff is entitled to succeed in his claim against the first defendant.’

The issue

5 Dublin Bus has appealed from the decision of the learned trial judge finding that there was a statutory duty on the part of Dublin Bus in respect of the safety of equipment provided for the use of its employees which had not been discharged. In essence, the question to be determined in this appeal is whether the Regulations applicable in the circumstances of this case impose absolute duty on the employer in relation to the safety of equipment provided for the use of its employees.

The Regulations

6 Regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations 1993 ( S.I. No. 44 of 1993) provides at Regulation 19 as follows:

‘It shall be the duty of every employer, to ensure that –

(a) the necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health

(b) in selecting the work equipment, account is taken of the specific working conditions, characteristics and hazards in the place of work having regard to the safety and health of the employees and any additional hazards posed by the use of such work equipment;

(c) where it is not possible fully to ensure that work equipment can be used by employees without risk to their safety or health, appropriate measures are taken to minimise any such risk;

(d) where the use of work equipment is likely to involve a specific risk to the safety or health of employees –

(i) the use of such work equipment is restricted to those employees required to use it; and

(ii) in cases of work involving repairs, modifications, maintenance or servicing of such work equipment, the employees concerned are competent to carry out such work;

(e) the necessary measures are taken so that employees have at their disposal adequate information and, where appropriate, written instructions on the work equipment; and

(f) information and instruction referred to in paragraph (e) contains at least adequate safety and health information concerning –

(i) the conditions of use of work equipment

(ii) foreseeable abnormal situations, and

(iii) the conclusions to be drawn from experience, where appropriate, in using such work equipment;

and that such...