High Court of Ireland Decisions

1. The Plaintiff is a 43 year old electrician. He was born on the 4th February, 1958. He is married with four children ranging in age from 1 year to 16 years. He qualified as an electrician in 1977 and worked as an maintenance man in the Cumberland Hotel in London until 1981 when he came to work for Irish Rail. He worked in the Depot in Fairview from 1981 to 1985 and then he moved to Connolly Station in 1985. He was employed in a large shed. There were three sets of tracks running parallel into it. The locomotives could be washed outside. Then they came to the entrance where there was a grill underneath them and here they were fuelled. The Plaintiffs job was general maintenance of the engine. The shed could take eight locomotives. While they were being washed the engines had to be left running. Thus those at the entrance would be left running. He maintains that about forty-two engines (over three shifts) pass through this shed per day. He often did 16 hour shift work. He could be on any part of the engine. There were loco exhaust fumes and fumes from the shed and from the fuelling and from the battery. The engines would be running at the entrance but sometimes later if other tests were required. There were also fumes from the raw diesel. The fans were ineffective. Fumes would hang in the air. The fuel frequently overflowed as you couldn’t be sure if the engine were full until it overflowed. The fuel gauges on all locos were defective. Some engines could be 20 years old. Sometimes the engines were left revving over night. They blew fumes around the shed. Workers were not provided with face masks. In 1984 he had his first problem when he had pneumonia. He was referred by the Irish Rail GP to Mr. Shane O’Neill at Beaumount Hospital. He had no previous chest trouble. He recovered from the pneumonia. However, he continued to have chest problems. In 1994 he returned to Mr. Shane O’Neill who informed that his workplace was effecting his health that he should leave the job for health reasons. He was ill considerable periods over the following two years. In 1996 redundancy bonus package was on offer. He applied for it and accepted it in November of 1996. He got a lump sum of £17,000.00 which was subject to tax. Prior to his departure there were four electricians in the shed but after his departure it was reduced to three. In otherwords he was not replaced. He had been warned that if he were more than six weeks absent within a two year period that he would be dismissed. However, he had decided by then to leave and join a FAS scheme for retraining. He then got a job with Intel, he was earning £260.00 per week nett. He was in rented accommodation and the Eastern Health Board had to help with the rent. He worked with Intel for five months (January to May) in 1998. He was not earning enough to pay the rent and support the family. He did better on Social Welfare. Since he left Intel he has done small private jobs. He went to “First Step” who encourage people back on to the workplace. He was set up by them with tools and advice on the 10th April, 2001. Prior to that he had done odd jobs. He anticipated it will take six months from now to get going. He has a qualification to issue certificates which will be recognised by the ESB. No longer has he to take antibiotics but is still on an inhaler.

2. There has been considerable alteration in the shed since he left. However, it is not normally admissible evidence to show what has happened after an incident. Steps taken after the horse bolted are normally not admissible evidence.

3. The Court has had assistance from Paul Romeril on behalf of the Plaintiff and Dr. Joe Kearney on behalf of the Defendant. They have both relied on a document issued by the English Health and Safety Executive and entitled “Control of Diesel Engine Exhaust Emissions (DEE) in the Workplace”. The copy provided to the Court is dated the 10th May, 2001 but this may be the date of its off print. The Plaintiff and Mr. Romeril detected blue smoke which is caused by partly burnt fuel from badly worn engines which are poorly serviced and/or tuned.

4. Dr. Kearney spent a day there monitoring the situation. However, the back door of the shed was half closed, while Mr. Romeril was there it was closed. Also of course conditions varied not merely from day to day but also from hour to hour depending on the weather, number of engines being serviced. It would also depend on whether the back door was opened or not. Dr. Kearney concludes that “the measured atmospheric diesel fume contaminants were of no significance within accepted criteria for worker exposure.” Mr. Romeril points out that sure clean premium concentrated TFR vehicle cleaner was used and it is classified under the regulations as an irritant. It can be irritating to eyes and skin and recommends protective clothing and eye protection and gloves.

5. The Manager of the Engineering service gave evidence that he in fact commissioned a document produced in March, 1996. The man who ordered the report and the man who prepared the report both gave evidence. It reads as follows:-

6. There presently is no means of powered ventilation in the locomotive shed in Connolly. The only means of ventilation is to keep the large entrance doors open which also means that as these doors are facing South West the temperature conditions are also not up to todays requirements.

7. It is proposed that a new fume extraction system be provided for the locomotive shed in Connolly Station. Along the lines of the system which was recently provided for the running shed Inchicore Works but without the automatic rapid rise doors. The system provided in the running shed Inchicore Works has proven to be successful.

8. It is proposed to provide a total of 13 no roof extract fans (large type) 9 of which would be supplied with special fume extraction canopies and ducting to the fans. The remaining 4 no roof extract fans would be installed in the roof without canopies or ducting. These are required to extract the relatively small amount of fumes that would not be picked up by the ducted fans.

9. The roof mounted fans would be automatically controlled, in zones using special “smoke detectors”. The evidence is that at the time the railway was “ strapped for money ”.

10. On the evidence the Court is satisfied that the Defendant was negligent in failing to provide a safe place of work inadequate control of DEEs and inadequate ventilation and in failure to provide face masks and gloves. The foregoing list does not purport to be exhaustive. The letter of the 16th April, 1999 from the Plaintiffs Solicitor to the Defendants pleads additional particulars of negligence in this case as follows:-

11. While the Defendant has undoubtedly pleaded that there was sole or contributing negligence on the part of the Plaintiff, no particulars are supplied. He knew he had a bad chest. He had had pneumonia but it had cleared, he now has asthma which is of a late onset type. He had a wife and family to support, he had a good job. However his health was deteriorating. He was not provided with either gloves or masks nor made to use them. The Court does not find any evidence of contributing negligence on the part of the Plaintiff. By letter of the 29th March, 2000 the Solicitor for the Plaintiff updates particulars of injury as follows:-

12. The Court has had the benefit of excellent and clear evidence of Dr. Clancy St. James’s Hospital and Professor Fitzgerald of St. Vincent’s Hospital as well as the local GP Dr. Kearney and the psychiatrist, and also had written reports from Dr. Shane O’Neill the Consultant Respiratory Physician at Beaumount. At first it was suggested that his condition was caused by his occupation, but the Court takes the view that it was not so caused but it was severely exacerbated by exposure to diesel fumes in a poorly ventilated environment while working in the Connolly locomotive maintenance depot. While doctors differ in language as to whether or not his asthma was caused by this exposure it is clear that they all accept it was exacerbated. And did so significantly. It has improved since he terminated his employment however he has been left with permanent asthma and will need long term medical care and will be subject to acute episodes of asthma in the future.

13. It is probable he would have developed asthma in time. He had recovered from his pneumonia but he had a weak chest. The Health and Safety Authority in a leaflet available to all workers states:-

14. The Court has found that the employer did not cause the asthma but certainly exacerbated and allowed it to develop because of the occupational hazards which the Plaintiff faced.

15. There was no evidence of serious psychiatric problems arising from his asthma. He had an alcohol problem but apparently has it under control. He also smokes. Evidence is a little confused as to how much he smoked at the relevant time. He has given up the cigarettes on a number of occasions. Tobacco would certainly be a contributory cause for exacerbating asthma but since on the evidence (it is a matter of probability) his intake of tobacco was relatively small. The overwhelming blame must be put on the occupational troubles and in the locomotive shed. The Court has no evidence as to what proportion of the Plaintiffs present disability would have occurred anyway because of his weak chest. In the absence of any evidence the Court would assess it on the basis of a 50/50.

16. The amount of the earnings the Plaintiff would have earned had he not taken voluntary redundancy from October 1996 to May 2001 is agreed at £119,945.65. The deductions agreed to be made from this sum are as follows:-

17. Social Welfare from 17th January 1997 to 30th May 2000 £23,071.00

18. Social Welfare from 1st June 2000 to date (52 weeks @ £194) £ 9,908.00

19. Health Board rent subsidy (50 months @ £614) £30,700.00

20. Intel (21 weeks @ £260 nett) £ 5,460.00

21. Deductions sought by the Defendants but not agreed Redundancy £18,976.00

22. So having regard to Section 2 of the Act it does not seem to the Court appropriate that this should be deducted.

23. First Step loan £ 5,000.00

24. This is to enable the Plaintiff to set up an independent business which he would not have incurred if he remained with the Defendant. In the opinion of the Court it is allowable and should be deducted. Then he was paid by FAS for 21 weeks at £190.00 which is £3993.00 It is agreed by both parties now that this should be deducted. This gives a further total of £8,993.00 which when deducted with the £79,139.00 from the £119,945.65 gives a total of £31,813.65. It was agreed between the parties that if the Plaintiff was working for the Defendants now his nett take home pay would be £575.00 per week. The evidence suggests that the Plaintiff would take two years to set up his business. The appropriate multiplier would be £101.00 for each £1 loss over the next two years. The evidence regarding this item is not satisfactory. He started off by saying he was earning up to £800.00. Then he claimed £200.00. Then he claimed for his son who started his apprenticeship last week. This can be seen with the agreed submission for monthly jobs of £200.00 that is a deduction of £10,000.00. The onus is on the Plaintiff to satisfy the Court regarding all these figures of loss.

25. I think since he agreed £200.00 per month which I take at £50.00 per week giving a loss of £525.00 per week. The actuarial figure is £101.00 per £1. This gives us £53,025.00, so we have £31,813.65 plus £53,025.00 which totals £84,838.65. One must look at the final composite figure in damages, so for pain and suffering to date the Court allows £40,000.00 and for the future £20,000.00, which makes a final total of £144,838.65 and the Court will award 50% of that figure namely £72,419.00 to nearest £.