Personal Injuries - Negligence - Employer's liability - Duty of care - Plaintiff injured delivering letters at ankle height for An Post - Whether An Post liable for first injury suffered by plaintiff - Whether An Post liable for subsequent injury suffered by plaintiff by same cause - Whether reasonable care taken - Whether risk voluntarily assumed - Quantum.

The High Court (before Mrs Justice McGuinness); judgment delivered 7 July 1998.

In circumstances where the real remedy lay with the Oireachtas, to ensure that the plaintiff would not suffer injury as a result of delivering letters to letter-boxes positioned at ankle height, An Post had taken reasonable care.

However, An Post did not properly discharge the employer's reasonable duty of care in respect of a further injury when the plaintiff was asked to do an overtime route which contained 350 such letter-boxes. The High Court so held in awarding the plaintiff a total of £43,500 in damages.

John Trainor SC, Aidan Walsh SC and Eoin Martin BL for the plaintiff; Brian McGovern SC and Mark Connaughton BL for the first defendant.

Mrs Justice McGuinness said that the plaintiff was 43 years of age and had been employed as a postman since 1974, initially by the Department of Posts and Telegraphs and subsequently by An Post. The plaintiff sought damages for injury suffered during the course of his employment as a postman delivering letters at a very low height to a house owned by the second defendant in Greenlea Place, Terenure, against whom proceedings had been discontinued. The injury was suffered on 30 June 1993 when the plaintiff suffered agonising pain to his back while stooping to a low level letter-box in Greenlea Place. The plaintiff had to spend a period of time out of work, returning in August or September 1993.

On 21 October 1993 the plaintiff was asked to do an overtime shift in a new development of 350 houses, all with low level letterboxes, at Mount Argus in Terenure. As a result the plaintiff suffered a further injury requiring surgery and was out of work until February 1994. On his return he continued to feel intermittent pain.

The problem of low letter-boxes had been a problem since the late 1960s and was a problem of which An Post and its precursor were aware both from union representation and also from their own studies into the issue. Evidence was heard that in the United States and in the European Union there were strictly enforced regulations governing the size and position of letterboxes. Mr James Bolger gave evidence for An Post to the effect that postmen were given a course on the safe handling of letters and parcels and this included instruction on bending and lifting to avoid injury. Mr Michael McCabe, An Post's manager for special projects until he retired in June 1996, gave evidence of how the Department of Posts and Telegraphs and then An Post had attempted to deal with the problem of low letter-boxes. He said that the Department had made considerable effort in the 1970s to create an Irish standard for the position of letter-boxes resulting in IS 195 of 1976.

He also said that efforts had been made to contact the Department of the Environment, the Health and Safety Authority and other statutory bodies with a view to introducing regulations on the height of letterboxes and similar efforts had been made to contact the Construction Industry Federation and the Royal Institute of Architects of Ireland in the hope of voluntary co-operation. This evidence was supported by the large amount of documents detailing such efforts which were put into evidence. The problem of low letter-boxes which was relatively minor in the 1970s and early 1980s had become a much bigger problem by the 1990s but despite the efforts of An Post no other relevant statutory authority took action. The plaintiff submitted that it was not enough for the defendant to write letters or to rely on voluntary co-operation. It was argued that section 65 of the Postal and Telecommunications Act 1983 entitles An Post to make alternative arrangements for the collection of post rather than delivering the post to an addressee. Therefore, An Post was in a position to announce a firm policy that it would not deliver post to low letter-boxes. An Post submitted that it acted as an employer and not as a legislator or an insurer and that the only duty on it was to act with reasonable care and that this duty was discharged.

Mrs Justice McGuiness said that given the scale of the problem now, and in 1993 when the plaintiff suffered the injury, it was highly doubtful that section 65 of the 1983 Act could be used as a blanket refusal to deliver mail to premises with low letter-boxes. The duty of care an employer owes to his employees was set down by the Supreme Court in the case of Bradley v CIE [1976] IR 217 where it was stated that an employer will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances. In this case the defendant was aware of the existence of the problem which had even featured in a Dail debate in 1971. However, by 1976 an Irish standard had been established and efforts continued through the 1980s and 1990s to have the problem addressed. While some of those efforts may have been lethargic, and some blame attaches to the defendant for that, the main difficulty lay with other bodies in whose hands the remedy lay, i.e. the Oireachtas and the Department of the Environment. Regard also had to be had to the fact that the defendant had also now in place a course dealing with the potential hazards of bending and twisting while delivering letters.

Mrs Justice McGuinness said that on balance, up to the time of the plaintiff's injury in June 1993 the defendant had taken reasonable care in the circumstances to deal with the hazard. Such efforts continue on the part of the defendant.

However, this particular plaintiff was asked to take on an overtime route on 21 October 1993 in Mount Argus on a development which contained 350 such low letter-boxes. While the plaintiff could have refused to take on the route he had been out of work for some time and needed the money. The defendant had a duty to ensure, at least in the short term after his original injury, that the plaintiff was not exposed to duties that would put undue strain on his back. Therefore, the defendant was liable for the damage caused by this injury and in the absence of a communicated waiver of a right of action by the plaintiff it could not be said that the plaintiff had voluntarily assumed the risk thereby defeating his claim in respect of this second injury.

Mrs Justice McGuinness awarded the plaintiff a total of £43,500 in damages.

Solicitors: Daly, Lynch and Crowe (Dublin) for the plaintiff; Hugh O'Reilly (Dublin) for the first defendant.