1986-6971P
THE HIGH COURT
BETWEEN
NOEL BARRETT
PLAINTIFF
AND
ANGLO IRISH BEEF PRODUCERS LIMITED AND EUROPA FORKLIFT HIRE LIMITED
DEFENDANTS
Judgment of Mr. Justice Barr delivered the 6th day of March, 1989

The plaintiff is twenty-four years of age and resides at the Naul, County Dublin. He is married with two young children. He received primary and secondary education at schools in Swords. On leaving school he worked as a part-time barman and then in the building trade. Thereafter he became a full-time student at Kildalton Agricultural College, Pill-town, County Kilkenny. He took a two year course in horticulture and was successful in obtaining a diploma. Subsequently, he worked for a farmer in North County Dublin and for Bailieborough Co-op. The first defendant company carries on a livestock slaughtering and processing business at Clougran, County Dublin. The plaintiff joined them early in 1935 and originally worked as a tractor driver. In August of that year, about a month before the accident which is the subject-matter of this action, the plaintiff was transferred to ferl:-lift truck driving. The first defendant had at that time about five or six fork-lift vehicles on hire from the second defendant. The plaintiff was allocated a particular Hyster machine and he was instructed by Finbarr McDonald, a senior management official, that he alone was to operate the vehicle and it was impressed upon him that under sanction of losing his job he was not to permit any other worker to do so.
The plaintiff's function was to collect small bins of semi-liquid offal in the slaughterhouse; convey to and empty them into a skip which held one and a half tons of material; then convey the latter to a large four-sided trailer in the yard; raise it up on the hydraulic forks to a height of about fourteen feet and tip the contents into the trailer for ultimate removal from the premises. The practice was to line-up the fork-lift at right angles to the side of the trailer; raise the skip until the forks were above the near sides of the trailer and drive the machine further forward until the tips of the forks were over the top of the trailer. The driver then got out and with a pole released a safety-catch at the top of the skip. He then got back into the cab and operated levers which caused the bin to tip towards the trailer ai;(l discharge its contents. At that time the cab was protected by a metal frame comprising four pillars and a roof. 	
When the plaintiff arrived for work on the morning of 9th September, 1985 he found that another employee called McAdams was using his machine and was in the process of lifting a skip of offal prior to empting the contents into a trailer The latter was parked in the It was in the vicinity of and at building called the gut-house. The to get down from the machine and that he The former did as he was told. While the plaintiff was about to tip the contents of the skip into the trailer, the fork-lift fell over onto its right side and as it did so the Plaintiff jumped out on to the ground from the left side of the cab. 	
These facts are not in dispute. However, there is acute divergence between the evidence of the plaintiff and that given by McAdam regarding the circumstances surrounding the accident and as to whether the plaintiff sustained personal injuries on account of it. In essence the outcome of this action turns in large measure upon an assessment of the credibility of three witness - the plaintiff, Aidan McAdam and to a lesser degree another fellow worker, Gerard O'Brien. 
               The plaintiff impressed me as an intelligent, articulate young man whose evidence appeared to be fair, balanced and credible., he said that the skips in use with fork-lifts at that time were not fitted with fork pockets or grooves on the underside with the result that a full skip while being raised or tipped less secure than would be the case if so fitted or designed. Since the accident, skips are fitted with fork pockets. It was ultimately conceded by defence witnesses that at the time the receiver for the forks comprised nothing more than a simple rail with stoppers at either end, i.e., there was nothing to prevent unsecured forks from shifting inwards.
The forks may be adjusted by moving them closer together or further apart depending on the load being lifted or carried. For example, it emerged in course of the evidence that it is necessary to adjust the forks by widening the gap between them having finished carrying the bins and before conveying a loaded skip to the trailer. There are a row of holes in the front frame and after each fork is set up in its appropriate position metal pins should be inserted through the forks and into appropriate holes in the frame - thus preventing them from moving out of their allocated positions.	If the forks are not in the correct position, the load will not be properly balanced and the higher it is raised the greater the degree of instability which will result.
The plaintiff stated that when he took over the particular IIyster fork-lift machine some four weeks earlier there .,ere no safety pins for the forks and he had reported -that fact to his foreman, Martin Byrne.	In the absence of pins it was the plaintiff's practice to tie the forks to the frames of the cab in order to prevent them from moving.	His -,7-idence in that regard was borne out by Terence Dockrell, who I am satisfied was a truthful witness. He described having trouble Faith the pins which were never there when he needed them. He also adopted a similar jury-rig to secure the forks and reported the problem to the foreman a week before the plaintiff took over the machine from him. Mr. Byrne told Mr. Dockrell that "he would see if he could sort it out".
When the plaintiff arrived on the scene on the morning of the accident the forks were not tied to the frame and his description of what transpired was that having told McAdams to get oaf the machine that he would take over, he mounted the vehicle and commenced lifting the skip from a mid-way position where McAdams had left it to a position above the trailer ready for tipping.	He got out of the cab and as he was releasing the safety-catch which secured the skip, he felt the vehicle rocking. He then saw that the left-hand fork had moved inwards about two inches to its right. He got back into the cab with the intention of operating the hydraulics to lower the forks so that they would rest on top of the trailer but, as he did so, the machine and its load toppled over to its right. The plaintiff went on to say that when it fell he jumped out of the 1eft side of the cab. He struck his arm and right leg off the safety-frame and landed on his back on the concrete yard.
His arm was bruised and his knee was cut. He picked himself up and walked over to the gut-house where to quote his words "I asked some of the lads to get someone to bring me to hospital."
The plaintiff's account of the accident is substantially borne out by Gerard O'Brien, one of the meat processing workers, who was standing at the gut-house nearby. I am satisfied that he is a truthful, reliable witness. His account was that he saw the fork-lift placed in position at the trailer with the skip up above it ready to be tipped. He saw the plaintiff standing beside the machine about to release the skip with a bar. He then saw him in the cab tilting the bin slightly forward with the hydraulics The mast started swaying. The skip moved to the right and as the machine toppled over the plaintiff jumped out from the left side of the cab and landed on his back. He remained on the ground for a second or so and then got up and walked over to the witness at the gut-house wall. He was in shock and he was holding his back.
The account of the circumstances surrounding the accident given by Mr. McAdam is very different and, if true, establishes not only that the plaintiff has been untruthful as to important particulars but that he did not fall as alleged and he has perpetrated a fraudulent claim on his employers by pretending that he had sustained a back injury.
Mr. McAdam was at the time of the accident, like the plaintiff, a temporary worker employed by the first defendant company and, like others in that category, having the
Possibility of being kept on at the end of the year when the meat processing business slows down and most temporary staff are laid off. He had joined the firm at or about the same time as the plaintiff and was a general labourer. He did not normally work with the plaintiff and was no more than an acquaintance of his.	It was not part of his normal work to drive fork-lift machines, but he did so occasionally if there was no regular driver available. He said that on the evening before the accident he had been instructed by a foreman he did not identify to come in early on the following morning to clean up a kill. which had been completed that day so that the slaughterhouse would be ready for another kill on the following day. On the morning of the accident he arrived at the factory at 7.30 o'clock. He said that the work he had been instructed to perform entailed use of a fork-lift and that he was entitled to take and operate one if there was no designated driver available. He availed himself of the vehicle normally driven by the plaintiff and used it in the first instance to empty some small bins into a skip. This entailed adjusting the forks innards towards each other and he did so. He said that ha had to lift a pin to move the forks and that the pins were there at the time.
Having emptied the small bins, Mr. McAdams lifted the skip with the fork-lift and drove it down to the trailer parked near the gut-house. He did not say whether he re-adjusted the forks to accommodate the skip which is much larger and wider than the bins or, if he did so, whether he also moved the pins to secure the forks in their new positions. 
However, the plaintiff's evidence confirms that the forks had been moved out from the bin position. McAdams went on to describe in general terms the operation entailed in lifting and emptying the contents of a skip into a trailer. His description was seriously inaccurate in several respects as, for example, the height of the operator above the ground when seated in the cab of the fork-lift and the height to which it is necessary to lift the skip before emptying it. This demonstrated clearly that his experience as a fork-lift driver is slight and it also casts doubt on his powers of observation. There was no evidence to suggest that he ever had been trained in the proper operation of such machines and, in particular, as to the significance of the fork pins and the importance of securing the forks in position.
Mr. McAdams described that as he lifted the skip when it was about halfway up it started to wobble and sway. It moved over and back from side to side but more to the right than to the left. He went on to say that the vehicle began to fall to the right. He said that he immediately lowered the skip to the ground (this description seems to be patently  inaccurate because if the machine began to fall rather than sway, it is probable that there would not have been sufficient time to retrieve the situation as described). The plaintiff appeared on the scene while the skip was being lowered and told him "to get out of the vehicle that he would do it". He contended that the skip then was almost at ground level when the plaintiff got in and proceeded to raise the skip. The crucial part of this witness's evidence then emerged and my none of it is as follows:

"When I was getting off the vehicle I told him that it had begun to sway from side to side and that it was dangerous. I had also noticed that when I was letting down the skip to the ground the wheel on the right side of the vehicle was flat and to be careful that it would turn over. I hadn't noticed the wheel before as there was no weight on it as I was I specifically warned him was unsafe. As it was being plaintiff] about halfway it began it had done with me but he kept began to sway severely at this fall to the right. I was from the vehicle itself. He to jump out and he landed on his The fork-lift had lie walked across to the gut-house in normal manner and I did not see any injury to When he arrived at the gut-house wall he went into a bent position with his hand on his lower back as if in pain. I was standing beside him. Noel said to me "Say nothing about this. I'll get some compensation out of it". We were not on particularly friendly terms.’

There are  ……………….from the evidence of Mr. McAdam.	First, having been warned that the fork-lift was behaving dangerously while the skip was being lifted and that it had a flat front tyre, the plaintiff behaved with reckless disregard for his own safety and that of the vehicle in doing that he did and, in particular, in persisting in raising the load to full height from beyond halfway after it had begun to sway from side to side. Secondly, that having jumped out of the cab to the left as the fork-lift was falling to its right, the plaintiff landed on his feet and sustained no injury. Thirdly, that he thereupon decided to conceal the true facts surrounding the accident and to pursue a fraudulent claim for compensation against his employer and that he also confided his plan to the witness who was no more than a mere acquaintance who might denounce him to the employer.
Having regard to my assessment of the plaintiff, I do not believe that he would have behaved in the reckless way described and thereby run a significant risk of death or major personal injury. I apprehend that if he had received a warning from McAdams as alleged then, having regard to his previous experience of the machine, he would have at the very least checked that the fork pins were in their proper positions or,. if there were none, he would have tied the forks to the frames as, he had done previously.
As to the inference that the plaintiff had not been hurt but pretended to have a back injury; this is contrary to the evidence of Mr. O'Brien who I accept saw the plaintiff lancing on his back and noticed when he got up that he was shocked and eras holding his back. However, Dr. Gregg's evidence, which I also accept, makes it clear that in his opinion the plaintiff did suffer a substantial back injury in the accident which entailed, inter alia, four weeks of painful in-patient treatment in hospital involving traction and an epiciural spinal injection after which the plaintiff was encased in a full plaster from neck to groin for six months following which he was obliged to wear a surgical corset for a considerable period.	Mr. Tom O'Neill, the defendants' surgeon, though disagreeing with some of Dr. Gregg's findings, does riot dispute that the plaintiff sustained a back injury in the accident. Other than what was said by Mr. McAdams there is no evidence whatever to suggest that the plaintiff landed on his feel, having jumped from the vehicle or that he suffered no buck injury in the accident. Mr. McAdams also gave evidence suggesting that the particular fork-lift machine had, given no trouble through lack of fork pins prior to the accident and that as far as he was aware the pins were never missing previously. However, when pressed, it emerged that he did not know whether he had ever used that particular machine prior to tire accident.

I accept the veracity of the plaintiff's account of what transpired and his evidence as to other related matters. I am satisfied that Mr. McAdams, for whatever motive, has endeavoured to discredit the plaintiff at every opportunity throughout his evidence - even to the extent of expressing a adverse to the plaintiff on a matter about which he, the witness, was not in a position to give any evidence. I do not believe that he told the plaintiff that the right front wheel of the vehicle was flat.	I do not believe that if it had been Flat, he could have been unaware of it until after he had started to raise the skip. If the tyre was flat then, it is probable that it also was flat at the time when he conveyed the loaded skip across the yard to the trailer.	There is abundant expert evidence that in such circumstances it would have been readily apparent to him that the wheel was flat. Mr. Gerry Fallon, the managing director of a company associated with the second defendant which carries out its maintenance work on fork-lift machinery, examined the machine some hours after the accident and found that there was nothing wrong with the wheels. I am satisfied that if the right front tyre was deflated after the accident, that situation was brought about when it acted as a fulcrum taking almost all the weight of the loaded vehicle as it toppled over.	This might well have had tree effect of blowing the valve or puncturing the tyre.
I do not believe that Mr. McAdam told the plaintiff of the problem which he had had when lifting the skip and his evidence as to what had happened when he operated the machine is probably exaggerated.	I also do not believe that he saw the plaintiff land on his feet when he jumped from the cab of. the fork-lift or that the plaintiff did or said anything to indicate that he had not injured his back or that he proposed to make a fraudulent claim on his employer for compensation.
Evidence was given on behalf of the second defendant that pins for fork-lift machines hired to the first defendant had required to be replaced previously. A minor service of all fork-lift trucks hired to the first defendant was carried out six days before the accident. The primary purpose of this was to check engine and hydraulic oil levels. It also included a visual inspection of the machine but no tests were carried out. The fitter in question gave evidence that he believed fork pins were fitted at the time of his inspection but there was no relevant record on the job card which he had I doubt if he would have noticed the pins unless his attention had been directed to them and that is not the case. Mr. Fallon gave evidence that when he arrived some four five hours after the accident that the machine had been righted and the forks were retained in the normal way. 

Evidence was given on behalf of the plaintiff by Mr. Mr. Duncan Stuart, a consultant engineer, and Mr. Duncan Stuart, and architect from which it emerged that the gradient of the slope where the trailer had been parked was one foot in twelve. This had been measured by the architect at specific gradient in the usual way and I do not doubt these findings notwithstanding the fact that a draughtsman employed by the parent company of the first defendant had purported to measure a much more shallow gradient at the site of the accident an hour or so before he gave evidence on the final day of the trial. I accept the evidence of Mr. Dudley Stuart that the place where the loaded was being carried out was dangerous due to the gradient of the slope and that the skip ought to have been fitted with a fork pocket or ridge having regard to the nature of the load being lifted and tipped. 

In the light of all of the evidence I am satisfied that two factors combined to cause the machine to topple over as described. First, the left-hand fork was not properly secured with the result that it moved inwards and destabilized the load as it was being raised. This problem was accentuated by the gradient where the trailer had been parked and the lifting operation was being carried out. It seems to me that it is of no great importance whether or not fork pins were fitted to the machine at the time when Mr. McAdams took charge of it. I accept the plaintiff's evidence that immediately before the vehicle turned over, he saw that the left fork had moved inwards. This could not have happened if it had been properly positioned and pinned by Mr. McAdams after he had finished emptying the small bins. Either there were no pins as the plaintiff surmises or Mr. McAdams, through lack of knowledge or inattention, failed to insert the pin after he had altered the position of the left fork or, in the further alternative, if he used the pin he did not correctly move the fork to a position corresponding to that on the right-hand side. There was plenty of time after the accident for Mr. McAdams or someone else to adjust the position of the left fork and insert a pin in it before the arrival of Mr. Fallon. I have no doubt that the first defendant was negligent (i) in causing or permitting Mr. McAdam, who was inexperienced in the operation of such machinery, to use the fork-lift as he did prior to the accident; (ii) in causing or permitting the left fork to move inwards or, alternatively, in wrongly positioning the left fork; (iii) in causing or permitting Mr. McAdams to site the fork-lift vehicle at a dangerous place having regard to the --lope in the yard where the trailer was parked; and (iv) in causing or permitting the trailer to be parked on the slope which created a danger for the plaintiff as operator of the fork, lift machine which was utilized to empty the contents of the skin into the trailer.

CONTRIBUTORY  NEGLIGENCE
 	
It was conceded by the plaintiff in evidence that the slope where the trailer was parked created an element of danger for the fork-lift machine. However, he had had no part in the parking of the trailer or the selection of the place where it was parked at the particular time. Furthermore, the operation had been already set in train and the skip was in the process of being tipped when he arrived on the scene. However, the plaintiff concedes that although the machine was already in position and the load was half raised when he took over the operation, he could have lowered the skip and moved the fork-lift further towards the rear of the trailer until the wheels on the right and left of the machine were astride the gulley at the base of the slope from right and left. He also would have observed if he had checked the forks that the left one was out of position. In my view he was negligent in both of these respects. However, in measuring his share of blame one must take into account that he was taking over an operation which was nearing completion and had been set up by someone else. The primary negligence was that of the employer and I apportion blame as to seventy five per cent on the first defendant and twenty five per cent on the plaintiff.

THE LIABILITY OF THE SECOND DEFENDANT

In my view the plaintiff has failed to establish negligence on the part of the second defendant and the first defendant is not entitled to an indemnity or contribution towards damages from -the second defendant. The only possible ground on which the second defendant might have any liability in the matter relates to the fork pins and there is insufficient evidence to establish that they were either missing or defective at the time when the machine was inspected on behalf of the second defendant six days before the accident.

DAMAGES

As already stated, I am satisfied that the plaintiff suffered a substantial back injury as a result of the accident and I have already described the extensive in-patient and out-patient treatment which he required. The accident happened on 9th September, 1985 and I am satisfied that the plaintiff was totally disabled until December, 1986. However, he was not then and never will be fit for a full spectrum of manual work. He has been advised by Dr. Gregg that, henceforth, he should avoid heavy lifting. This fact curtails his corking capacity and employability though, fortunately, it has not yet militated against him and he has been able to obtain a full-time job which is within his restricted physical capacity and does not involve any reduction in earnings. However, if the plaintiff loses that employment at some future date he may find difficulty in obtaining alternative employment which is within his restricted physical capacity. This disadvantage and also the fact that his back is more vulnerable to injury than it was before the accident are factors which must be taken into account in assessing the plaintiff's damages. My assessment is as follows:

             Loss of earning at the agreed rate of £100 per week from 9th September, 1985 to 9th March, 1986 £.7,800 (This sum takes into account that it is reasonable to allow the plaintiff three months to obtain employment from the time when he became fit for work bearing in mind the general shortage of jobs).

Pain and suffering from date of accident to date of trial: £20,000

Continuing disablement and loss of employment prospects in the future:	£10,000

TOTAL:	£37,800

Accordingly, the net amount of damages payable to the plaintiff by the first defendant is £28,350.