High Court of Ireland Decisions

1. The Plaintiff in these proceedings seeks damages for injuries to his back which occurred, he claims, during the course of his employment as a postman. His injuries originally arose from delivering mail to a house at Greenlea Place, Terenure, in the city of Dublin, which was fitted with a very low level letter box. The first named Defendant is the employer of the Plaintiff and the second named Defendant is the owner of the premises at Greenlea Place. Proceedings against the second named Defendant have been discontinued and the hearing before this Court dealt solely with the Plaintiff's claim against his employer, An Post.

2. The Plaintiff is 43 years of age, having been born on the 9th December 1954, and is married with three children. He has been employed as a postman since 1974, initially by the Department of Posts and Telegraphs and subsequently by An Post. He resides at 19 Killinarden Estate, Tallaght and in the main has worked as a postman in the Rathmines and Fortfield/Terenure areas of the city of Dublin.

3. On the 30th June, 1993 he was employed as a postman in the Fortfield District Post Office and was delivering post to an area of townhouses and apartments known as Greenlea Place, Terenure. These houses were fitted with what are known to postmen as "low letter boxes"; the letter boxes were placed at the bottom of each door, not more than a few inches from the ground, rather than at waist level or higher. The postman, in order to deliver the post, must therefore engage in a stooping, bending or squatting manoeuvre. In the case of No. 2 Greenlea Place, this was complicated by the fact that the door in question was situated under a flight of steps which led to the door of the upper apartment in the building. The Plaintiff, therefore, had little room to manoeuvre when delivering the post to No. 2.

4. The Plaintiff alleged that when he bent down to reach the low letter box to No. 2 he suffered a sudden agonising attack of pain in his lower back. He was scarcely able to stand or walk. With difficulty and very slowly he completed his round but was unable to work any longer that day. He attended his General Practitioner, Dr Peter Keogh, who is one of a number of doctors designated by An Post to treat the company's employees. Dr Keogh diagnosed acute lower back strain, with possible lumbar disc damage. He noted that the Plaintiff, who had been his patient since 1978, had some pre-existing back problems, but these do not on the evidence appear to have been very serious in nature. The Plaintiff was treated with analgesics, anti-inflammatory drugs and rest. He was fit to return to work about the end of August or beginning of September, 1993.

5. The Plaintiff continued at work until the 21st October, 1993. On that day he was employed on overtime to deliver post to a new development of houses at Mount Argus in the Terenure/Kimmage area. As yet no specific postman had been designated to this area and the Fortfield Post Office men undertook this extra round on an overtime basis in addition to their normal work. There were some 350 dwellings in the development and all had low letter boxes.

6. By the time the Plaintiff had delivered the Mount Argus letters his back was again, he said, acutely painful. He returned to Dr Keogh, who found his various spinal movements diminished and painful. He referred the Plaintiff to Mr Paul McNamee, Consultant Orthopaedic Surgeon. The Plaintiff had a CT scan of the spine carried out; this showed disc protrusion at two levels. Mr McNamee recommended surgery and this was carried out at the Bons Secours Hospital on the 18th November, 1993. The Plaintiff was out of work until the end of February, 1994.

7. Since his return to work on that date the Plaintiff has suffered a degree of intermittent pain in his back. He requires to rest on the floor when he comes home from work and has had to give up his prior sporting hobby of football. However, both his own evidence and the medical evidence is that he has made a remarkably good recovery, given the problematic and continuing nature of back injuries.

8. Both Dr Keogh and Mr McNamee gave full oral evidence and in addition the Court had the benefit of a number of agreed medical and psychiatric reports. Over the years the Plaintiff had suffered from time to time from clinical depression and there was a recurrence of this problem following on his injury. This stemmed from financial difficulties and his being out of work. However, he has, I am glad to say, also made a very good recovery from his psychological difficulties.

9. Evidence on behalf of the Plaintiff was also given by Mr Paul Romeril, Consulting Engineer, who had produced a series of photographs of low letter boxes in the Greenlea and the Mount Argus areas, together with other examples of low letter boxes in the Fortfield/Terenure area. Mr Romeril stated that the problem of low letter boxes dated back to the 1960s and had increased in frequency in recent years. Low letter boxes were prevalent where glazed "storm porches" had been added to houses. They were also prevalent in new townhouse developments. He pointed out that doors for new developments were bought in bulk from joinery manufacturers and that the joinery industry was very competitive. Minor cost savings in the manufacture of doors could be made where the letter boxes were placed at the bottom of the door, thus eliminating the need for a strong cross timber at waist level. However, he felt that if standard regulations were made and enforced on all new buildings the problem could be solved, as all joinery manufacturers and builders would have to conform to the standard. Otherwise An Post could threaten to refuse to deliver the post.

10. Mr Romeril also dealt with the need for training of postmen to avoid back injury which would result from awkwardly placed letter boxes. Such training should be specific to the particular task, with practical demonstrations and continuing supervision to ensure that rules of safety were followed. He queried the wisdom of permitting the Plaintiff, who had already suffered a back injury, to deliver letters to Mount Argus where all 350 boxes were very low.

11. A number of the Plaintiff's fellow postmen also gave evidence of the difficulties they had experienced with low letter boxes and of the complaints that they had made to their immediate supervisors. Many of them had attended a training course in manual handling which was provided by An Post. While they accepted that this course demonstrated safe methods of lifting, say, weighty parcels, they were unanimous in stating that the course did not specifically address the problem of low letter boxes. The difficulty in reaching low letter boxes was compounded by the fact that the postman was simultaneously carrying a mail bag weighing on average 35lbs and a bundle of letters for immediate delivery. All the postmen witnesses were of the opinion that management in An Post took little or no notice of their complaints.

12. Mr Rory Delany of the Communications Workers' Union had been a postman since 1977. He had been a branch officer in the union since 1985 and a worker director of An Post since 1996. He gave evidence of the repeated efforts of the union to bring the low letter box problem to the attention of management, but felt that An Post had been very slow moving and less than determined in dealing with the problem. The union had been in touch with affiliated unions in Europe and the United States. In all these jurisdictions there were strictly enforced regulations as to the size, design and location of letter boxes and in none of them would postmen be required to deliver letters to boxes a few inches from the ground. He cogently pointed out to this Court that, for example, housewives would not dream of accepting a cooker design with the control knobs at ankle level.

13. He drew an analogy with the situation in regard to dangerous dogs, where, he stated, a postman was not required to deliver letters to a house where a dangerous dog was loose. Similarly, he felt, householders should be notified by An Post that letters would not be delivered where the box was too low and unsafe for the postman.

14. Mr James Bolger, witness for the defence, gave evidence of the course on safe manual handling which he had given to groups of postmen. He had given training courses in Fortfield Office on the 27th and 28th April, 1992. He gave details of the course, which included warnings on the dangers of back injury and instructions on bending and lifting to avoid such injuries. He had slides and flip charts. He stated that at every training course questions were asked by postmen about low letter boxes. He told the postmen that when approaching a low letter box a postman should remove his mail bag and put it on the ground. He should then assume a squatting position to put the letter in the box. He felt he had dealt with the question adequately. He accepted that bending over and twisting put a strain on the spine; the key element in his advice was the prior removal of the mail bag.

15. When he had served as an inspector he had generally approached the builders of new houses to ask them to place letter boxes at a reasonable height. In general he received good co-operation from the builders.

16. Mr Charles Parnell, a postal inspector, had been the Plaintiff's immediate supervisor at the time of his injuries. He did not recall the Plaintiff reporting his injury on the 30th June, 1993; he recalled him reporting it on the 9th July, 1993 for the first time. He said that postmen made "off the cuff" complaints about low letter boxes but neither individual postmen nor the union had made official complaints to him. Only an official complaint would be noted and dealt with. He did not write down off the cuff comments. He said that low letter boxes were not a big issue in 1993. They had only become an issue in the last three to four years. He did not generally read the minutes of union conferences. He did not generally contact builders about letter boxes. He went to look at the Mount Argus development but only to calculate the number of houses. He would be reluctant to tell people to change the position of letter boxes. He had left Fortfield Office in September, 1993 and therefore knew nothing of the Plaintiff's second injury. He was now stationed in Blanchardstown and, as far as communication was concerned, he "might as well be in Timbuctoo".

17. Mr Michael McCabe had been An Post's manager for special projects up to his retirement in June, 1996. He gave a detailed account of the efforts which firstly the Department of Posts and Telegraphs and later An Post made to deal with the problem of low letter boxes. At an early stage the department had arranged to have included in an Irish standard for letter boxes additional material with regard to the positioning of letter boxes. This standard was IS 195 of 1976. A great deal of effort had gone into contacting the Department of the Environment, the Health and Safety Authority and other statutory bodies with a view to introducing regulations on the height of letter boxes. Contact had also been made with professional bodies such as the Construction Industry Federation and the Royal Institute of Architects of Ireland in the hope of voluntary co-operation. Special advertisements and leaflets had been issued and published which warned of the dangers of low letter boxes. An Post had employed a consultant, Ms Auveen Byrne, to investigate the situation and promote better practice. He himself had written to a number of other countries and obtained information in regard to their regulations on letter boxes and he had passed on this information to the consultant.

18. Mr McCabe accepted that in the case of one development An Post had threatened to refuse to deliver post if low letter boxes were installed and that this had proved effective. However, he felt that An Post had a statutory duty to deliver the post and he doubted they could simply refuse to do so. It would be impracticable to make alternative arrangements such as ringing the bell at each door or requiring residents to collect their post at a Sorting Office. For time reasons it was, he felt, impracticable to require all postmen to take off their mail bags at each house before delivering mail to low boxes. He accepted that An Post would be willing to supply exterior letter boxes to be attached to houses at a proper level; the expense of this was not an issue. However, An Post would not be able to undertake the responsibility and risk of installing the new letter boxes; that would have to be the responsibility of householders.

19. The evidence given by Mr McCabe was largely paralleled by the voluminous discovery documents which were, by the agreement of both parties, put into evidence. These documents cover the history of the low letter box controversy from March, 1971 to date. In the earlier years action by the authorities in the Department of Posts and Telegraphs seems to have followed the time-honoured practice of circulating memoranda - in somewhat desultory fashion - from one section of the Department to another, or, in more extreme cases, from the department to other departments such as the Department of Industry and Commerce or the Department of Local Government - later the Department of the Environment. Inter-departmental letters did not receive replies until after delays stretching to many months or even years and the whole question was sometimes left in abeyance for periods of years, generally only to be revived when protests from the employees' trade union gave rise to fears of industrial action. The most positive step taken in the earlier years was the production in 1976 by the IIRS of an Irish standard specification for letter boxes to which I have already referred.

20. In or about 1980 moves were made to initiate a publicity campaign on low letter boxes. Contact was also made with the Department of the Environment to have regulations regarding the position of letter boxes introduced. Little real progress was made. On the 24th August, 1981 a memo which typifies the situation was sent to An Rúnaí, Postal Branch.

21. This seemed an eminently sensible approach if it had been pursued with vigour. In February 1982 a plaintive letter was sent to the Department of the Environment by Mr E. O'Súilleabháin:

22. One must wonder whether, in the five years which have elapsed since "our latest letter" Mr O'Súilleabháin or some other official could not have telephoned his opposite number in the Department of the Environment to urge some action, or, if all else failed, taken the revolutionary step of walking down from the GPO to the Planning Section in O'Connell Bridge House to stir matters up somewhat.

23. By December 1982 a quotation had been obtained for the printing of a publicity leaflet for issue to firms of architects and builders. Sadly, however, in January, 1983 the draft publicity leaflet was lost between the stationery office and the department.

24. Correspondence to the Department of the Environment was equally unfortunate. On the 20th January, 1984 a Mr Farrell wrote again to the Secretary, Department of the Environment (Planning) in O'Connell Bridge House as follows

25. As far as can be ascertained from the correspondence it was not until December 1993 that the Department of the Environment finally informed Mr Michael McCabe of An Post that the question of low letter boxes was "an operational matter for An Post and therefore outside the ambit of both planning and building controls". This was

26. It would be wearisome to continue to detail the continuing documentation. Suffice it to say that over many years it undoubtedly bears out the evidence of Mr Delany of the Communication Workers' Union that management appeared to have no sense of urgency about this problem. This was unfortunate; it is true that it was a minor problem in the 1970s and early 1980s but it was precisely at that stage that it could have been nipped in the bud by firm and decisive action. It has now become a major problem which, on all the evidence before me, will be difficult and complex to solve.

27. The discovery documents do, however show a vastly increased level of activity on the low letter box problem from the late 1980s and early 1990s onwards. Builders' and architects' organisations were contacted; effective publicity was circulated; queries on statutory regulations were followed up. In or about September, 1994 Messrs Auveen Byrne & Associates, Consultants and Town Planners, were engaged to carry out research into an appropriate legislative instrument for regulation of the size and location of letter boxes on doors and on premises. Messrs Auveen Byrne carried out the research and provided a comprehensive and informative report which highlighted inter alia the health dangers to postmen arising from low letter boxes. Unfortunately both Messrs Auveen Byrne and An Post ran into a blank wall when it came to getting other relevant statutory authorities to take any action. That failure cannot in fairness be attributed to the Defendant.

28. Senior Counsel for the Plaintiff, Mr Trainor, submitted to the Court that the Plaintiff's evidence in regard to the cause of his injuries was unchallenged. It was not enough for An Post to write letters to various bodies and to rely on voluntary co-operation. Legislation and statutory regulations were required. This course was open to An Post, he submitted, under the Postal and Telecommunications Services Act, 1983 and in particular Section 70 thereof and possibly under the Building Control Act, 1990. Section 65 of the 1983 Act provided that

29. Senior Counsel for the Defendant, Mr McGovern, accepted that low letter boxes posed a danger to the health of postmen, and that the type of injury suffered by the Plaintiff was foreseeable. He submitted that an employer was not a legislator nor an insurer; An Post's duty was that of reasonable care. An Post had done everything in its power to minimise the problem. The training which was provided was sufficient. Adults must be expected to interpret training in the light of their own work practices. The practicability and the cost of removing the foreseeable danger must be taken into account. It was extremely doubtful if An Post could rely on Section 65 of the 1983 Act; could "acceptable" alternative arrangements be made? It was open to the Oireachtas to enact legislation to deal with the problem but it was an unreasonable burden on the Defendant to hold that An Post could itself introduce legislation or statutory regulations. This was a matter outside their control and despite all their efforts they had been unable achieve this desirable end.

30. The Defendant, An Post, was established as a statutory body under the Postal and Telecommunications Services Act, 1983. Under Section 63 of that Act An Post is granted "explicit privilege in respect of the conveyance of postal packets within, to and from the State and the offering and performance of the services of receiving, collecting, despatching and delivering postal packets". Under Section 64(2) it is stated that this exclusive privilege is granted to the company inter alia "in view of its primary purpose of providing a national postal service".

31. The statute, therefore, grants a postal monopoly to the Defendant but in return the company is to provide the national postal service. While Section 65 (quoted above) would allow alternative arrangements other than actual postal deliveries to be made, it seems to me highly doubtful that the company could use this Section to enable it to issue a blanket refusal to deliver mail to premises with low letter boxes and offer as an "alternative arrangement" the inconvenient system of forcing householders to collect mail at the Sorting Offices or other outlets. This line of action might have been operable, and possibly successful, had it been put in place 25 years ago when low letter boxes were few and far between and when complaints were first heard. In that way the problem might, as I have suggested earlier, have been nipped in the bud. It would hardly have been a practicable solution either in 1993 (when the Plaintiff suffered his injury) or at present when the problem has been permitted to proliferate widely.

32. Counsel for the Plaintiff also referred the Court to the possibility of An Post bringing in a scheme under Section 70 of the 1983 Act which would regulate the size and position of letter boxes. However, I would accept that, as submitted by Mr McGovern, schemes under this section deal with the charges to be imposed for postal services and similar matters. I do not consider that the section could be extended to cover specifications in regard to letter boxes.

33. As far as the case law is concerned, the classic case in this jurisdiction on the standard of care owed by an employer to an employee in regard to safety is Bradley -v- CIE [1976] IR 217. In that case the Plaintiff, a railwayman, was injured when he fell from a ladder attached to a signal post. Engineering evidence suggested that a protective cage would have prevented such a fall but there was no evidence that such cages were provided by other railway companies. There had been no similar accidents within the previous 10 years. The Supreme Court, as is stated in the head note, held that the suggested precaution had not been shown either to have been one which had been commonly taken by other railway operators or to have been one which a reasonably prudent employer would think was obviously necessary in the prevailing circumstances for the protection of its employees. At page 223 of the report Henchy J. stated "the law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances". Henchy J. went on to say "even where a certain precaution is obviously wanted in the interest of the safety of the workmen, there may be countervailing factors which would justify the employer in not taking that precaution."

34. However, as was submitted by Mr Trainor, more recent cases have taken a somewhat less harsh line. In Kennedy -v-Hughes Dairies [1989] ILRM 117, where an employee suffered a cut from broken glass at a bottling plant, the Supreme Court held that there was sufficient evidence to enable a jury reasonably to conclude that there had been a foreseeable risk of injury to the Plaintiff in the area in which he was injured, because of the nature of his work. The learned McCarthy J. (at page 123 of the report) stated "the essential question in all actions of negligence is whether or not the party charged has failed to take reasonable care whether by act or omission."

35. Dr White, in his book "Civil Liability for Industrial Accidents" (Volume 1 page 434) summarises the situation of the worker on a third party's premises thus "the employer owes the like duty of care with regard to the safety of the premises of third parties on which he requires his servants to work as he does in respect of his own premises, but what reasonable care requires in relation to the latter is not necessarily the same as what reasonable care requires in relation to the former". Having referred to Dunne -v- Honeywell , he then goes on (at page 486) to deal with the situation where, as in the instant case, the employer is aware of the hazard. He refers to the English case of Smyth -v- Austin Lifts Limited [1959] 1 All ER 81, where the Plaintiff employee had reported to the employer a faulty door mechanism on the third party's premises. When the employee was injured as a result of the hazard, the House of Lords held that the employer had indeed been negligent. Lord Denning said

36. Mr Mc Govern, for the Defendant, referred to Charlesworth on Negligence (9th Edition) at paragraph 6 - 18, where the learned author refers to the necessity of balancing the risk against the measures necessary to eliminate it, as follows:

37. The learned author then considers a number of cases in which this question arose and concludes at paragraph 6 - 21

38. At paragraph 6 -23 he concludes

39. An Post, Counsel submitted, had taken all possible and reasonable measures and could not be held liable for their failure to eliminate the risk.

40. It is necessary to consider the evidence in the light of the case law set out above. It is accepted by the Defendant that the positioning of letter boxes a few inches from the ground causes both extreme inconvenience and also a hazard to the health and safety of postmen; a moment's thought would convince one that this form of door design is totally contrary to common sense. An Post had received numerous complaints from the employees' trade union and from individual postmen; the matter had been raised in Dáil Eireann by Deputy James Tully as early as 1971. The hazard was therefore known to the Defendant and the risk was a foreseeable one. The Defendant from its own research and that of its consultants was aware that the practice in other jurisdictions was to regulate the size and position of letter boxes by statute or statutory regulation.

41. An Post and its predecessor the Department of Posts and Telegraphs did, however, make some response to the situation. By 1976 the Department had succeeded in having proper height and other specifications included in the Irish Standard. Over many years efforts were made to deal with the problem through building regulations or the planning code. It is true that until the late 1980s or early 1990s these efforts were somewhat lethargic and some blame for this attaches to the Defendant, but the main difficulty in my view lay with other bodies in whose hands the remedy lay - the Oireachtas and the Department of the Environment. Given the wide terms of Section 3 of the Building Control Act, 1990, I find it difficult to disagree with the contention of Counsel for the Plaintiff that the relevant regulations could have been made under that Act. However, the power to make such regulations lay outside the remit of the Defendant. Finally, in more recent times the Defendant has made sustained and genuine efforts to improve the situation in regard to letter boxes generally in both urban and rural areas. They have not succeeded in eliminating the hazard but that has not been due to any major negligence on their part. They have, in addition, provided a training course in manual handling to the Plaintiff and his fellow workers. The course may not have been ideal but it warned of the hazards of bending and twisting and I was impressed by the level of commitment and enthusiasm shown by Mr Bolger in his evidence. It is true that he did not provide a satisfactory answer to the problem of delivering letters to low letter boxes, but if one thing emerges from the evidence in this case it is that there is in fact no practical satisfactory answer to this problem other than to eliminate low letter boxes.

42. On balance, therefore, up to the time of the Plaintiff's injury in June, 1993 I conclude that the Defendant had taken reasonable care in the circumstances to deal with the undoubted hazard. The Defendant has, in general terms, continued to deal with the matter with reasonable care insofar as lies within its power. It can only be hoped that cases such as this may persuade the legislature to take the relevant action.

43. As far as this particular Plaintiff is concerned, however, that is not the end of the matter. He had suffered a severe injury to his back in June 1993; he had reported this matter to his supervisor; he had attended the company doctor; he had been forced to take time off work. His injury and his consequent vulnerability were by late August/early September 1993 well known to his employers. Yet on 21st October, 1993 he was sent out on overtime to deliver mail to the development at Mount Argus, where some 350 houses had low letter boxes. This overtime delivery to Mount Argus was not, on the evidence, a sudden emergency. It was a regular part of the system at the Fortfield Office because no arrangements had yet been made to set up a separate round for Mount Argus. The Plaintiff accepts that he took on this overtime duty voluntarily; he could have refused it. But he had been out of work for some time and he needed the extra money.

44. The question of voluntary assumption of risk is dealt with in convenient summary by McMahon and Binchy in their work The Irish Law of Torts (second edition) at page 336 as follows:

45. In the particular circumstances of the Plaintiff in this case it seems to me that the Defendant's duty of care towards Mr Barclay included a duty to ensure that, at least in the short term after his illness, he did not take up duties which would put undue and extraordinary strain on his back. The delivery to 350 low letter boxes in Mount Argus was eminently such a duty. The original inspector, Mr Parnell, had left Fortfield Office in September, 1993 and I did not hear evidence from the inspector in charge in October, 1993. However, my impression from the evidence of Mr Parnell and Mr Bolger was that the attitude of An Post's inspectors to the working postmen and their problems was distinctly uneven. Mr Bolger, when he was an inspector, clearly took a great interest in the welfare of his postmen; I did not get the same impression from Mr Parnell's evidence. It should be part of the duty of care of higher management to ensure that line management executives such as inspectors bear in mind the welfare, health and safety of ordinary postmen.

46. In summary, I find that the Defendant did not properly discharge the employer's reasonable duty of care in the case of the Plaintiff's second injury and as such the Defendant is liable for that injury.

47. The Plaintiff's original back injury in June, 1993 caused him considerable pain and distress but following on conservative and palliative treatment by his General Practitioner, Dr Keogh, he had made a good recovery by the time he returned to work at the beginning of September. The second injury led to his being referred to Mr McNamee, the orthopaedic surgeon, who arranged a CT scan and subsequently carried out surgery on the Plaintiff's spine. While this surgery appears to have been very successful, the period of convalescence and recovery was a long one and the Plaintiff was fit to return to work only in February, 1994. During all of this period he underwent considerable pain and suffering.

48. There was also the added complication that the Plaintiff was psychiatrically vulnerable, having suffered from clinical depression in the past. His prolonged absence from work and the consequent financial stringency together, I am sure, with his continuing pain, led to a resurgence of his psychiatric difficulties. As is well established the Defendant must accept the Plaintiff as it finds him, with his vulnerabilities. In this context I have had the benefit of reading the agreed reports of Dr Anthony Clare and Dr John Ryan. Fortunately the Plaintiff seems to have made an excellent recovery in this area also and this, I felt, was borne out by his demeanour in the witness box.

49. As regards continuing injuries, the Plaintiff complains of intermittent back pain. He has to lie on the floor to rest his back when he comes home from work. He was a keen footballer and now finds himself unable to participate in this sport. However, as was said by the medical witnesses, he is fortunate in not having suffered more serious sequelae.

50. Bearing in mind that I have not held the Defendant liable for the first injury, I would measure the Plaintiff's general damages to date for the second injury at £30,000. For pain and suffering into the future I will award a sum of £10,000. Special damages have been agreed at a sum of £3,500, making a total award of £43,500.