Eamon Stakelum (plaintiff) v The Governor and Company of the Bank of Ireland (defendants).

Negligence - Personal injury - Use of ladder in course of employment - No safety assessment carried out on ladder by employers - Plaintiff did not read safety instructions on ladder - Ladder fell and plaintiff injured - Whether plaintiff negligent - Whether defendant negligent - Apportionment of liability - Damages.

The High Court (Mr Justice O'Donovan); judgment delivered 27 April 1999.

An employer has an obligation to take reasonable care for the safety of his employee in the course of his employment. That obligation includes a duty to ensure that any equipment used by the employee in the course of his work was free from defects and was suitable for the purposes for which it was used.

In the present case, by his failure to read the safety instructions on a ladder and to note the absence of rubber end caps on the ladder, the plaintiff negligently contributed to his own downfall.

Mr Justice O'Donovan so held in awarding the plaintiff £18,500 damages for pain and suffering to date and future loss, which said award was reduced by 50 per cent to £9,250 for contributory negligence.

Padraig McCartan SC, Richard N. Keane SC and William Hamilton BL for the plaintiff; Aeden McGovern SC and John O'Connell BL for the defendants.

Mr Justice O'Donovan said that the plaintiff had been employed by the defendants as a porter since 1984. His duties included general maintenance of the bank premises and in particular the care of a garden at the rear of the branch premises.

For these duties he occasionally needed a ladder and it was common case that he bought a ladder himself at the request and expense of the defendants. No risk assessment of the ladder was ever carried out. The plaintiff gave evidence that no member of the bank staff ever criticised him for using the ladder outdoors. The then manager requested him to pick apples from a tree in the garden using the ladder, which he did on an annual basis thereafter. On 6 October 1995, the plaintiff was requested by a member of the bank staff to pick two apples for her. The plaintiff went to do so, but while climbing the ladder to pick the apples, the ladder buckled and he fell to the ground. After his fall, he noticed that the rubber end caps on the feet of the ladder were missing and the feet were bent.

An engineer gave evidence that the ladder was suitable for indoor use only. Thye absence of rubber end caps made it even more dangerous to use on soft ground. On the side of the ladder there was a notice preceded by the word "Warning" in large red letters, requiring users of the ladder to follow the safety instructions on the underside of the platform of the ladder before use. These instructions, inter alia, prohibited use on soft ground. The plaintiff was aware of the notice but had never read the instructions. He conceded that common sense dictated that one should not use the ladder on soft ground, particularly in the absence of rubber end caps.

Mr Justice O'Donovan said that by his failure to read the safety instructions and by using the ladder in the absence of end caps, the plaintiff negligently contributed to his own downfall because, had he read the instructions and noted the absence of end caps as a reasonably careful person would have done, the likelihood is that he would not have attempted to use the ladder and the incident complained of would have been avoided. He was, to a greater or lesser extent, the author of his own misfortune.

Mr Justice O'Donovan felt unable to exonerate the defendants from all responsibility for what happened. Their obligation for the plaintiff's safety in the course of his employment included a duty to ensure that any equipment used by the plaintiff in the course of his work was free from defects and suitable for the purposes for which it was used. The plaintiff's duties obliged him to use a ladder. The defendants were aware or ought to have been aware of this and therefore had an obligation to ensure that the ladder which he was using was suitable for the purpose.

While quite entitled to permit him to purchase a ladder of his own choice on their behalf, it was incumbent on them to submit it to a risk assessment and draw his attention to the safety instructions before permitting him to use it. By their failure to do so, they fell down on their duty of care for the plaintiff's safety and negligently contributed to the incident and the plaintiff's resulting injuries. Mr Justice O'Donovan apportioned the blameworthiness and fault equally between the parties.

In respect of damages, the plaintiff suffered a fracture of his dominant right arm requiring fixation and ten weeks in plaster. He made a full recovery, the only residual problems being scarring and sensitivity in cold weather, both of which were likely to fade.

Mr Justice O'Donovan awarded £15,000 for pain and suffering to date and £3,500 for future pain, and reduced the award by 50 per cent for contributory negligence.

Solicitors: Bowler Geraghty & Co (Dublin) for the plaintiff; F. P. Gleeson & Co (Dublin) for the defendants.