Whoriskey v Fruit of The Loom

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO
• Judgment Date: 07 November 1994
• Neutral Citation: 1998 WJSC-HC 13271
• Court: High Court
• Date: 07 November 1994

1998 WJSC-HC 13271

HIGH COURT

WHORISKEY v. FRUIT OF THE LOOM

WHORISKEY

V

FRUIT OF THE LOOM.

Words & Phrases:

CF

Subject Headings:

*

1 MR. JUSTICE COSTELLO GAVE JUDGEMENT ON THE 7TH NOVEMBER, 1994 AS FOLLOWS:

2 MR. JUSTICE COSTELLO: The Plaintiff was born in July 1969. In the year 1988 she became a trainee in the factory premises of Fruit of the Loom, the Defendants, in these proceedings.

3 Having trained for some 13 weeks, she then became a full-time machinist. She worked from 8. 45 in the morning to 6 o' clock in the evening, on a machine, which was hemming sleeves for T- shirts.

4 The operation, carried on by the Defendants in their factory premises, is a very large one indeed. There are some eight hundred employees. The Plaintiff was working at a work station in part of the process of producing T-shirts, which required her to prepare sleeves for hemming. The operation was a very repetitive one and - extraordinary as it may seem - the number of pieces, which she produced in a day, amounted to a minimum of 7,200 and could rise to a maximum of over 9,000. The work she was doing was piecework and for that she was paid a basic salary, based on a fixed figure for the number of pieces she would produce and anything achieved over three quarters of that figure, was then paid to her by way of bonus. The system was, therefore, one which was designed to obtain from the operatives, the highest possible production figures.

5 In the Summer of 1990, sometime before August 1990 and probably in the month of June, she began to experience pain in her shoulder. The pain got worse but it was relieved during her holiday period in August but it then proceeded to get worse and in October of that year she reported the condition to her nurse in the factory and she underwent a short course of physiotherapy. She came back to work in December but could not do the work because of pain in her shoulder and she had to stop. She has been out of work since then, except for a short period in the Summer of 1993.

6 During this period she obtained anti-inflammatory drugs and painkillers for the pain in her shoulder, which spread down her arm.

7 The issues in the case are, firstly, whether or not the Plaintiff suffered an injury due to the work which she performed. Secondly, if so, were the Defendants negligent and thirdly, the nature and duration of the injury, which she sustained; on the assumption that she is entitled to damages. The Defendant applied for a direction at the end of the Plaintiff's case but as the Defendants indicated that they intended to give evidence, I indicated that I would not entertain an application at that stage and the application was renewed at the end of the Defendant's case. I reserved my judgment on all issues until today.

8 I turn first to the medical evidence in the case. The Plaintiff's medical evidence was given in agreed medical reports. The first report, chronologically, is that of Doctor O' Shea, the General Practitioner whom she consulted. She consulted him in November 1990 and he diagnosed a condition of bursitis in the shoulders. He saw her again on the 8th of January 1991 and there was then a creaking noise in her shoulder and crepitus was present and she was off work from February and he gave her medical certificates due to her condition. She then saw a specialist, Surgeon Price, in Londonderry, in April of 1991 and he diagnosed a low grade tenosynovitis in her shoulder. His opinion was that this condition could arise spontaneously but that the repetitive nature of the work would exacerbate her symptoms. Unfortunately, she did not improve and she saw, in the following year, in October 1992, Surgeon Lynch, at Letterkenny.

9 Although the Plaintiff then had normal movement in her shoulder, her shoulder was tender and Surgeon Lynch diagnosed chronic peritendinitis. He saw her again in April 1993 and again the diagnosis he made was the same. He felt, in view of her condition, that he should refer her to a specialist in Dublin. In December 1993, he was optimistic about her future but he was of the opinion that she would have to have a different occupation to that which she was performing prior to the accident.

10 Mr. Colville saw the Plaintiff in August 1993. He arranged for her to go into hospital, where he performed an arthroscopy. This is an examination of the shoulder joint and this examination led him to the conclusion that there was a small eroded area in the region of the humeral head and that this was a small area, within the joint, of wear within the bone and in his opinion there was some conneefcion between the work which the Plaintiff had been doing prior to the accident and these physical findings. He thought, however, that the eroded area would heal in time.

11 It seemed to me, on this evidence...