1. This
case arises out of an incident which occurred on 21st June, 1993. The
Plaintiff who was then a 25 year old Radiographer was employed in Beaumont
Hospital, which hospital is represented by the First named Defendant.
2. The
Second named Defendant, a limited liability company with its principle offices
at 3M House, Adelphi Centre, Dun Laoghaire, Co. Dublin, was the manufacturer
and supplier of a laser image processor. The First named Defendant had
purchased from the Second named Defendant this particular laser imager
processor which was installed in the First named Defendant's premises by the
Second named Defendant on the 14th day of June, 1993. In particular, it was
installed in a room called the Daylight Processor Room which had been
constructed for that very purpose.
3. This
machinery is highly complex and it appears to consist of images being brought
by fibre optic cable from all parts of the hospital and put into a laser imager
and then produced into the machine in question from which they emerge by way of
a film.
4. At
the time in question films from the said processor came from an opening on the
front on to a metal tray.
5. Almost
immediately from the beginning of its operation, problems arose with the films
that were coming from the machine onto the tray in that they were sticking
together. This was understood to be as a result of static electricity and the
Second named Defendant's operatives came to the First named Defendant's
premises to attempt to deal with the problem. The service report of 16th June,
1993 states that Mr. Wickam was unable to fit the static brush, though Mr.
Wickam in the witness box did indicate that he had in some way fitted a static
brush on that occasion. Mr. Wickam also gave evidence that he returned on the
18th and fitted another static brush. This was not properly fitted either as
the kit which he had was incomplete. This evidence would appear to have been
borne out by further inspection of the machine on 5th July, 1993 when it was
quite clear that the kit for the static brush had been incomplete. Despite the
fact that the kit for the static brush was incomplete, this information was not
communicated to the First named Defendant nor was any warning given about it.
6. The
Second named Defendant had been informed by the servant or agent of the First
named Defendant that two incidents of electro static shock had been experienced
before 21st June, 1993. As so frequently happens in these cases, the really
relevant service reports of the Second named Defendant, namely those dealing
with the situation between 16th and 21st June, 1993 were not available. There
was, therefore, no real explanation for the alteration on the service card
dated 13th July, 1993 dealing with "fit anti-static brushes, etc.". Also, the
relevant service reports for 16th June, 1993 were not available. There was no
explanation why the cards, which were apparently safely stored in England, were
not brought to Court, nor was there any explanation why the micro films of
these cards and worksheets were not brought to Court. This is in despite of
the fact that there was evidence given that they had all been microfilmed prior
to transportation to England.
7. On
21st June, 1993 at approximately 5 p.m. the Plaintiff in the course of her
employment went to the Daylight Processing Room for the purposes of retrieving
some film, and, on picking up one of the films she received a shock, which she
felt as entering her right arm, crossing her chest and going down her left arm.
It threw her backwards across the room, she hallucinated, stumbled and was very
very severely shaken. She was off work at that time for two days and suffered
the personal injuries which I will deal with hereafter.
8. She
reported the matter to her superiors and they immediately had the machine
closed down. The machine was inspected the following day by the operatives of
the Second named Defendant, and by the electricians on behalf of the First
named Defendant and it was found to be in perfect working order, from a mains
electrical point of view. On 5th July, 1993 a high powered investigative team
investigated the machine on behalf of the Second named Defendant and they came
to the following conclusions:-
9. It
goes on to say that this should have been installed in the position in
accordance with the maintenance manual. It should be noted that on 13th July,
1993 this full kit was fitted as suggested by the Second named Defendant and by
his operatives and after that no further problems with regard to static emerged
in the following years during the utilisation of the machine.
10. The
Plaintiff claims that the shock which she received was due to the negligence of
the Defendant in the failure properly to earth the said machine or provide
anti-static brushes in a proper fashion.
12. The
reality of the case has been approached by the parties in approximately the
same way. It has been accepted by the Plaintiff and I accept that the mains
electricity in this case was in good condition and could not and did not
contribute to the cause of the accident which was caused by static electricity
and a static electrical charge. The question is as to whether or not the
Defendants were negligent and, if negligent, were liable for the injuries
suffered by the Plaintiff. Mr. Rommeral, on behalf of the Plaintiff, gave
evidence that there were two potential sources of static electricity in the
machine, namely:-
13. It
was agreed by Mr. Rommeral that the shock caused by static electricity would
usually cause little more than a pin prick to the hand but he tempered this by
quoting from British Standard 5958, Part I of 1991 at page 11:-
14. This
view was corroborated by a report called "Cenelec" of April 1998 which
indicated at page 49, at paragraph 9/1 that the discharge of static electricity
through a person's body can cause an electric shock. Such shocks rarely cause
direct harm but involuntary movement resulting from the shock can lead to an
injury or even death.
15. Page
51 at paragraph 955 states that many types of equipment and processors cause
electro static charging but it often goes unnoticed. However, reports by
operatives that they are receiving shocks should always be investigated. It is
likely that they are harmless but this is not always the case. It can indicate
that equipment is faulty and hazardous.
16. Basically,
Mr. Rommeral indicated that, in his view, the cause of the accident was shock
of an electric static nature from the machine quite likely caused by the build
up of discharge in the tray and, in his view, may not have been earthed. He
relied on the matters which I have cited above for the purposes of indicating
that whereas it is unlikely this type of shock will cause injury, it can do so.
The question also arose in the course of Mr. Rommeral's evidence as to whether
or not it was possible that the Plaintiff could have been the source of the
electro static shock, in other words, that the shock could have left her body
and gone to the machine. Evidence was given that this can happen and
particularly in a hospital environment where people may build up electro static
charges in their bodies.
17. However,
I am happy to say that by the end of the case, that particular aspect of the
matter has been disposed of and I reject the concept now that the shock at any
time was going from the Plaintiff's body to the machine. The evidence for the
First named Defendant, through their engineers, was that they had taken all
adequate steps and all reasonable steps to ensure that the machine was safe and
that the shock emanating from the machine, if any, should have been so small as
not to really effect the Plaintiff. In cross examination it was agreed that in
certain circumstances a shock could build up so as to cause discomfort and
distress to a specific Plaintiff. The Second named Defendant's evidence
regarding liability indicated that there were hundreds of machines around the
world like this and that none of them had given any trouble of this nature.
However, it was notable that in the United States of America there was a
specification requiring an electro static brush which was not incorporated into
the models sold in this country.
18. In
the course of their extensive enquiries into the machine after the incident and
indeed before the incident it is noted that no alteration was required to be
necessary for the earthing of the tray, therefore, there does not appear to
have been any evidence of this nature that the tray was not earthed at the time
of the incident. This was particularly so as it was stated that there was a
magnetic key attached to the lid which, if it was not in place, would prevent
the machine from functioning and that if the machine was functioning this was
in place which meant that the earth of the tray had got to be in position.
19. As
stated above, there had been no alteration made to this and the evidence of the
examination immediately after the incident being that it was in the correct
position and there is no evidence to indicate in reality that this was not so.
20. Therefore,
this may have been a unique or rogue machine but whatever about other machines
it is quite clear that this machine did, firstly, not appear to have an electro
static brush fitted when provided by the Second named Defendant. Secondly, it
gave out electro static shocks at that time. It was then incorrectly fitted or
partially fitted with an electro static brush and it continued to give out
electro static shocks.
21. When
finally fitted a proper electro static brush or anti static brush and full kit
it ceased to give out electro static shocks.
22. I,
therefore, hold that the Second named Defendants were negligent in providing a
laser imager processor in such a condition that it gave off electro static
shocks when, if properly equipped, it would not have done so.
23. The
First named Defendant was negligent in failing to provide the Plaintiff with
safe equipment in the course of her employment as her employer.
24. It
is unusual that this type of shock should cause the damage which the Plaintiff
suffered in this case. However, I am satisfied that the damage which was
caused was as a result of the shock, therefore, applying the principle of the
"eggshell skull", I find that the Plaintiff was sensitive to this particular
kind of shock as a result of which she suffered the damages hereinafter as set
out. The Plaintiff suffered an extreme trauma to her system. The shock went
into her right arm, across her chest and down her left arm. Since that date,
she continues to suffer from pain in her left arm, cramping in the area of her
left arm and she is being kept awake at night. Prior to the accident she was
an outgoing, active and fun-loving person but since the accident she has become
to all intense and purposes recluse, has eventually after attempting to keep
going in her job until 1996 had to give it up. She has undergone two regimes
of pain treatment by Dr. Declan O'Keeffe to whom she was referred by Dr.
Keavney and they have indicated in their reports that the pain results from
neuropathic pain and post traumatic disorder. She has had a sympathectomy done
by Mr. Hederman in the Mater but none of these treatments have done her any
real good at all. In the course of her treatment for the purposes of the pain
she has undergone something in the region of 12 general anaesthetics in
injections of one form or another. Her psychologist says that the Plaintiff
had led a full and active life until the accident in 1993 which left her with
chronic pain syndrome, post traumatic stress disorder and a radically changed
and restricted lifestyle. She has not only been traumatised by the accident
itself but she has also suffered from the prolonged stresses arising from
trying to cope with chronic pain and medical procedures as well as the loss of
her career and normal life. Overall the accident has caused Patricia
immeasurable suffering and has tragically interfered with her young life
emotionally, physically and mentally. On behalf of the Defendants, Dr.
Hutchenson and Dr. Ryan both indicate that the pain which she is suffering is
not of a physical nature but of a psychological origin. In particular, Dr.
Hutchenson says it is not nerve related, this conflicts with the evidence of
the two specialists in pain who have treated her on an ongoing and regular
basis.
26. I
am holding against the Defendants when they argue that this case does not fall
within the parameters of the "eggshell skull" principle.
27. My
view, and I am holding as a fact that the injury which the Plaintiff suffered
is of neuro genetic nature and was caused as a physical result of the shock
which she suffered. She has been unemployed since 1996 when she gave up acting
as a Radiographer. She has not worked since 1996 but since then she has
undergone a number of attempts to get rehabilitation including a course in
journalism and a course in attempting to participate in the running of a radio
in one of the Technical Colleges. Despite these endeavours and despite her
best endeavours to occupy herself her every effort has been frustrated by the
fact that her pain interferes with it. Mrs. Smith, the Vocational
Rehabilitation Consultant, indicates that as long as these symptoms persist it
is unlikely that the Plaintiff will return to the labour force and will
continue to be unemployed. Under those circumstances, the Plaintiff is
entitled to recover damages for the injuries which she has suffered. I accept
the evidence, as given, that she has not worked since 1996 and I further accept
the evidence that it is unlikely, on the balance of probabilities, that these
symptoms will go away and particularly in this regard I rely on the evidence of
Dr. O'Keeffe who was very very strong on the subject. Under those
circumstances, I think it is, on the balance of probabilities, the Plaintiff
will not work again and under those circumstances I accept the figures of the
actuary and I award her the following:-