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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McLaughlin v. Esat Digifone Ltd. & Ors [2003] IEHC 632 (27 February 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/632.html Cite as: [2003] IEHC 632 |
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THE HIGH COURT
[1998 No 8361P]
BETWEEN
SEAN McLAUGHLIN
PLAINTIFF
AND
ESAT DIGIFONE LIMITED ESBI ENGINEERING (UK) LIMITED AND
TRANSMISSION LINE SERVICES LIMITED
DEFENDANTS
Judgment of Johnson J. delivered the 27th day of February 2003
This case arises out of an accident which occurred to the plaintiff on the 5a' day of
November 1997.
The plaintiff in the case was a lines man rigger well experienced and skilled in the erection of masts and in steelwork.
The first named defendant is a company involved in the telecommunications business and was at the time involved erecting a network of communications masts around the country.
The second and third named defendants had been engaged by the first named defendant for the purposes of erecting a mast at Bailieborough Co. Cavan and for this case the second and third named defendants were jointly represented and can be taken as one and think properly referred to as the erectors of the mast.
The plaintiff was a direct employee of the third named defendant who was contracted as above stated to erect the mast.
The mast in question was provided by the first named defendant, having been purchased from a Norwegian firm specialising in the design and production of what might be described as off the shelf masts, and the second and third named defendants were specialist erectors of such masts, and indeed had erected an identical one for the first named defendant shortly before the occurrence of this accident.
At the conclusion of the evidence in this case I asked the parties to make written submissions because having regard to the length of time the case took and the intensity with which it had been argued I felt I may have missed some of the nuances of the arguments which had been put however now having read the evidence and having read the submissions my first understanding of the case was correct.
The accident occurred at a time when the plaintiff in the course of erecting the mast and in going from one part of it to another stepped on a steel plate which gave way. The plaintiff fell a considerable distance and was injured. The plaintiff's case between the two defendants has been comprised and the only issue which I have to try is the issue as to the contribution if any between the two defendants regarding the liability of the case.
The evidence was in actual fact quite simple. The plaintiff was not wearing the approved fappe (fall arrest and personal protection equipment) with which he had been supplied and which it is mandatory to wear on these masts while they are been rigged.
Had he been so wearing this accident might not have happened or certainly not to the severity it did. Secondly the second and third named defendants decided that the work should be carried out in the dark this factor must have contributed greatly to the difficulties under which the plaintiff worked.
It is quite clear that the plate on which the plaintiff s stood has not been fastened in accordance with the directions of the manufacturer which require that at least four clips should fasten the plate.
It was quite clearly a failure on the part of the second and third named defendants to ensure that (a) the fappe harnesses were been worn at all material times by the plaintiff and they were quite clearly negligent in failing so to do. Secondly to embark on the erection of masts at night without proper lighting was in itself extremely hazardous.
And thirdly failing to ensure that the correct number of clips on the plate were inserted in accordance with the manufacturers specifications was also negligent and under these circumstances I have no hesitation in holding that the second and third named defendants were negligent in the case.
The essence of the issue between the first named defendant and the second and third named defendant that the second and third named defendants claim that there was an inherent defect in the design of the mast in that
(a) the top platform of the said mast failed to have any lateral edge restraint and (b) it had no side support underneath it.
It is in accordance with the plans laid down by the manufacturer and it is quite clear from all the evidence which has been given. These matters were exclusively within the suppliers province and under the control of the first named defendant.
However the first named defendant contests that these matters constitute an inherent defect in the mast.
It is to be noted also that the second and third named defendant had erected an identical mast shortly before the occurrence of this event without comment as stated. There is no doubt that it might have been safer had the mast had for the plate lateral edge restraint and side support beneath it. This however was the manner in which it was designed and the engineering evidence was that the absence of side supports was countered as was the absence of lateral edge restraint by provision of clips and by the directions for the erection of the mast which were given. I accept the law as advanced by the parties in particular by the second and third named defendants. Therefore the issue to be decided is as to whether or not these facts namely the absence of lateral restraint and side support beneath it amount to an inherent defect. There is no doubt that it is practically impossible to devise any construction or machine which could not be made more safe by some alteration. However merely a variation in design does not render something inherently defective nor does a factor which makes one product safer than-another render the product without that factor inherently defective. For example I think it is safe to say that a motor with four airbags and four wheel drive may be regarded as safer than a car without them however the failure to have four airbags or four wheel does not constitute an inherent defect in the car.
Here we have an item made by a reputable manufacturer purchased as such with detailed instructions as to how to erect it.
The instructions if carried out would have rendered the mast and its construction absolutely safe.
And indeed had there been lateral supports there would also have been detailed instructions regarding its construction which would also have to be carried out, and having listened to the evidence on both sides I am not satisfied on the balance of probabilities that the absence of lateral supports constitutes in any way an inherent danger.
It must be borne in mind that this mast was to be erected by experts well experienced in this regard and who held themselves out as such who had already erected a similar mast a short time before that and under similar circumstances.
I am reinforced in this view by the fact that nothing in the design of this mast contributed to the manner in which it was erected and it is quite clearly it was the failure of the second and third named defendants and the plaintiff himself to erect the mast in accordance with the directions and clip the grates with a minimum of four clips which caused the accident.
The first defendant I ensured that the second and third named defendants were reputable experts in the erection of such masts and it ensured prior to the erection of the masts that the second and third named defendants were fully conversant, with the various statute and other safety regulations, which applied to the erection of such masts and applied to the employment of persons such as the plaintiff, and did its best to satisfy itself that these regulations and other provisions would be adhered to.
I am satisfied that the system utilised for the erection of the masts was solely within the province of the second and third defendant and any deviation from the directions given by the manufacturer was solely within the hands of the plaintiff, and the second and third named defendants, and I am further satisfied that had the original instructions been adhered to that no damage would have occurred.
I am not satisfied therefore that the factors in the mast of which the second and third named defendants make complaint constitute or amount to an inherent danger in its design. And therefore I dismiss the claim against the first named defendant, I find that the second and third named defendant 100% responsible for the liability of the case.