1987 - 1981P
THE HIGH COURT
TALTECH ENGINEERING CO. LIMITED
Judgment delivered by Mr. Justice Barr on 10th February, 1989.
The plaintiff is now 21 years of age. He is presently employed as a sales assistant in a clothing and footwear shop. On 9th September, 1986 he sustained personal injury in an incident which occurred on the defendant's factory premises. At that time the plaintiff was, and had been for several months, a machine operator employed by the defendant. His working day ended at 5 o'clock p.m. and in accordance with custom he left his machine and went off to wasl7 his hands and to collect his jacket about three minutes before finishing time. He put on his jacket which contained in one of the side pockets a large crisp bag which he had used for wrapping his lunch but which then contained only an apple. The bag was protruding from his pocket.
While the plaintiff was walking back towards his machine to collect a jersey he had left there, he was called over by William Fay, who was employed by the defendant as factory supervisor. At the time Mr. Fay was about thirty feet away from the plaintiff and he was talking to another worker, Ray Wilkinson, at the time. The latter had with him a metal plate with sharp edges measuring about four feet by one feet. The lower end was resting on the floor and the worker was holding it in front of him at each side. The plaintiff responded to Mr. Fay's call; walked over and stood facing him. Mr. Wilkinson (with the metal sheet) was standing between the other two and on the right of the plaintiff. Mr. Fay then said "give us the crisps" to which the plaintiff replied "it isn't crisps - its only an apple". Fay respondend "even better" and took the bag from the plaintiff's pocket. The latter by way of reflex action immediately grabbed the bag while it was, as he described it, "in mid air". Mr. Fay tugged the bag to get it from the plaintiff. The bag broke and this had the effect of suddenly releasing the plaintiff's hand which swung back and the upper part struck the top of the metal sheet which Mr. Wilkinson was holding nearby. No evidence was called on behalf of the defendant and these facts are not in dispute.
It is accepted that the injury which the plaintiff suffered ;ras a most unfortunate, unintended consequence of a light-hearted prank which occurred on the factory floor at the end of the day's work. There is no doubt that Mr. Fay's conduct caused the accident and that he was personally negligent in wrestling for the crisps bag close to the dangerous length of metal. The only issue is whether at the time lie was acting within or outside the ostensible scope of his employment as supervisor for the defendant.
The following passage from Charlesworth and Percy on Negligence 7th Edition, Ch. 11, paragraph 19 succinctly summarizes the law as to an employer's vicarious liabilityfor injury to an employee at the workplace arising out of a prank played on him by a fellow worker in the same employment.
"A master is not liable to a servant for personal injuries sustained, which were caused by the negligence of a fellow servant, who is not acting in the course of his employment, when he perpetrates some isolated mischevious act, such as a practical joke, that could not reasonably have been foreseen. However, it does not necessarily follow that merely because the practical joke happens to have been an isolated incident that the employer can automatically avoid liability by arguing that the perpetrators of it were not acting in the course of their employment. Such an argument would not avail a master where he owed a duty of care to the plaintiff who was bound to obey the joker's instructions".
The authority for the latter proposition is the judgment of the English Court of Appeal Chapman v. Oakleigh Animal Products 1970 8 Knights Industrial Reports 1063.
I appreciate that the facts in Chapman differ those under review. If Mr. Fay had been merely an ordinary fellow employee and not a supervisor I would have hesitation in dismissing the plaintiff's claim on the ground that his injury was the consequence of an isolated could not reasonably have been foreseen by the employer. However, Mr. Fay was not an ordinary rank and file employee but was a person in authority who the plaintiff was bound to obey. Mr. Fay, having an intention to perpetrate an innocent prank on the plaintiff, used his authority to put his intention in train. The plaintiff, who had no idea at that time what Mr. Fay's intention was, came over to him when called upon to do so.
He had an obligation as an employee to respond far as he (the plaintiff) knew might well have related to a legitimate work matter. In my view the entire incident should be regarded as a single entity and it is unreal to differentiate between Mr. Fay's instruction to the plaintiff to come over to him, which initiated the incident, and what transpired thereafter. In fact, unknown to the victim, that was part of the intended prank. In these circumstances I am satisfied that the employer is liable for the negligence of Mr. Fay which ensued.
The plaintiff, who is right-handed, suffered a serious injury to the upper part of that hand which has had significant permanent consequences for him. He sustained an extensive u-shaped deep wound on the outside of his hand which severed tendons relating to the index and middle fingers. Having been token originally to St. James' Hospital, he was transferred to Dr. Stephen's Hospital where he came under the care of Mr. Matt McHugh, a consultant plastic surgeon. An operation was performed by him. The extensor tendons of both damaged fingers were cut and repaired. The plaintiff was detained in hospital for three days and he continued to attend as an out-patient for about three months. His hand was in a plaster cast for six weeks.
The end result is that the damaged tendons are now caught up with other tendons in the right hand. Mr. McHugh explained in evidence that they are tethered and tightened in consequence of which the plaintiff cannot extend the index and middle fingers individually, though he can do so in conjunction with the other fingers of that hand. It is apparent that the injured fingers droop significantly when not stretched out with the remaining fingers of that hand. Mr. McHugh's opinion is that the present situation will not improve and he does not advise any further surgery. His evidence was not challenged on behalf of the defendant. He also accepted the plaintiff's contention that he has difficulty in writing due to the defect in the index finger, and he expressed the opinion that the plaintiff would never be able to perform fine work with his right dominant hand and that in all probability he would not be able to play a guitar in the future. The plaintiff had given evidence, which I accept, that at the time of the accident he had just started learning to play the guitar and that he had hoped to become a proficient player. He has tried to play since the accident but rinds that he cannot do so by reason of his injuries.
Having had a course of physiotherapy, the plaintiff returned to his pre-accident work after ten weeks, though his hand was still sore at that time. He was able for the work but decided to change jobs about a year later. He is now a retail salesman. He is able for that work, though the damaged index finger "locks" occasionally while lifting boxes. There is a raised red scar some two inches long on the back of his right hand which is noticeable and disfiguring. I accept that it causes the plaintiff some embarrassment at work and socially. Mr. McHugh does not think that the appearance of the scar can be improved. Bearing in mind the age and status of the plaintiff; that his band is disfigured and that significant permanent damage has been done to the two most important fingers of his dominant hand; that he will always have difficulty in writing and that his permanent inability to perform fine work with his right hand restricts the range of employment prospects open to him and interferes to a minor extent with his day to day life, I assess damages as follows:
|Agreed special damage||£ 300.00|
|Pain, suffering and|
|disablement to date||£ 5,000.00|
|Continuing disablement and|
|disfigurement in the future||£20,000.00|