High Court of Ireland Decisions

1. The Plaintiff in this case, Thomas McMahon, is a fifty three year old sales representative, a married man, the father of four grown up children one of whom; his only daughter, regretfully suffers from Multiple Sclerosis and is very dependent on that account and he presently lives outside the town of Monaghan. Mr. McMahon comes to Court seeking damages by way of compensation for injuries which he suffered on the 10th day of June, 1996 in the course of his employment as a sales representative with the first named Defendants, Irish Biscuits Ltd., while checking stock on the supermarket premises of the second named Defendants known as “ Quinnsworth” in the town of Cavan. To understand the circumstances of the incident which gave rise to this claim and the basis upon which the Plaintiff blames the Defendants for what happened to him on that occasion, it is necessary, I think, to review what was required of the Plaintiff in the course of his employment with the first named Defendants viz-a-viz their relationship with the second named Defendants and how he was expected to fulfil his obligations in that regard. In this connection, the Plaintiff impressed me as being, basically, an honest person and a reliable historian of the events which he described in evidence although, as will appear later on in the course of this judgment, insofar as his injuries were concerned, I thought that there were some inconsistencies between what he told to his doctors and what he said in the witness box. That as it may be, however, insofar as the obligations of his employment and the circumstances of the incident which gave rise to this claim were concerned, I was satisfied that the Plaintiff’s evidence painted an accurate picture; particularly, as to a considerable extent, his evidence was corroborated by that of Mr. Noel Gorman, a merchandiser in long term employment with Irish Biscuits Ltd., who used to do relief work for the Plaintiff when he( Mr. McMahon )was on holidays or was on sick leave and also by that of Mr. Michael McHugh who, at the material time, was employed by the first named Defendants as an area sales manager and, in that capacity, was the Plaintiff’s immediate superior.

2. The Plaintiff told me that, on the 10th June, 1996, he was required to visit the second named Defendant’s supermarket premises in Cavan Town for the purpose of checking their stock of biscuits with a view to preparing an order with regard to biscuits for the forthcoming week on behalf of Quinnsworth after consultation with one of their staff. In this regard I gather that Irish Biscuits Ltd. supplied Quinnsworth with between 60 and 75 lines of their product and that, in an average week, some 220 cartons of biscuits would be delivered to Quinnsworth. In this regard , Quinnsworth required a delivery of fresh supplies of biscuits on the Wednesday of each week (apparently, because their big competitor Dunnes Stores Ltd. got deliveries on that date) and to achieve that, Mr. McMahon was required to submit a fresh order on behalf of Quinnsworth to Irish Biscuits Ltd. on or before 10.30 am on the Monday in each week. If he did not make that deadline, the order would not be delivered until the Thursday in that week; in which event, Mr. McMahon would find himself in “ hot water ” with both his employers and with Quinnsworth. In fact, as I understand the position, on only one occasion during all the years that he worked as a sales representative for Irish Biscuits Ltd. and he did so for many years, did Mr. McMahon miss that deadline and, on that occasion, he was severely criticised, following complaint by Quinnsworth to Irish Biscuits Ltd. Therefore, so far as Mr. McMahon was concerned, it was very important to make that deadline, but it was not all that easy to do so, for the reason that, on every Monday morning, before visiting Quinnsworth, Mr. McMahon was also required to visit Dunnes Stores Ltd. in Cavan Town and, there, to carry out a similar exercise of checking stock and ringing in an order on behalf of Dunnes Stores Ltd. to his employers. Accordingly, it was not until approximately 9.40 - 9.45 am that he reached Quinnsworth so that he only had about forty five minutes to check their stock, agree an order for the forthcoming week with their manager, or assistant manager, and then phone the order in to his employers; a phone call which he told me and I accept, would, itself, take up to ten minutes of his time. Accordingly, Mr. McMahon was under considerable pressure to meet his deadline and his task was not made any easier by the fact that, more often than not, he had to use a public telephone on Quinnsworth premises to call his employers because their office phone was not made available to him. Indeed, I understand there were even occasions when the public phone was busy and Mr. McMahon had to go out onto the street to look for a telephone. All in all, therefore, I am quite satisfied that Monday mornings were very stressful for Mr. McMahon if he was to get the Quinnsworth order in on time. Furthermore, it was clear from the Plaintiff’s evidence, which was fully corroborated in that regard by Mr. Gorman, that the task of checking stock in the Quinnsworth storeroom for the purpose of preparing an order for the forthcoming week was, itself, anything but a straightforward exercise. In this regard, stocks of biscuits in the storeroom were located in racks with metal shelving; the top shelf, of which there were three, being 9’3” from the ground, as I learned from Mr. Joseph Osborne, an engineer, who examined the Quinnsworth storeroom on the Plaintiff’s behalf. All things being equal, access to those of the shelves which the Plaintiff could not reach while standing on the ground could be gained by means of a mobile platform which was in the storeroom and eminently suitable for that purpose. However, on the day of the incident of which the Plaintiff complains and, indeed, as I understand and accept the Plaintiff’s evidence, on most Monday mornings, that platform could not be used for the reason that the aisles between and in front of the racks of goods in the storeroom were cluttered with pallets of stock; some of which had been lying there for some time and more of which were actually being delivered to Quinnsworth at that time. The result was that there was no room for the mobile platform in the aisles and, therefore in its absence, Mr. McMahon had no option but to climb up the shelving to gain access to stock on the upper shelves for the purpose of checking it. This, Mr. McMahon told me and I accept was a procedure which he followed on the day of his accident and, indeed, on many previous occasions. Moreover, it was a procedure of which one of his area managers, Michael McHugh, was well aware because, not only did Mr. McHugh concede that he had actually witnessed the Plaintiff climbing shelves to check the stock but that he, himself, actually did so on one occasion. In that regard, having been referred to photographs of the type of shelving involved, I concluded that an attempt to climb it would be an extremely hazardous exercise and, my view in that regard was confirmed by Mr. Osborne, the engineer, who gave it as his professional opinion that to attempt to climb that shelving involved high risk and, accordingly, was a very dangerous exercise. Indeed, the Plaintiff, himself, conceded under cross-examination that he recognised that it was a risky activity; particularly, for a man, like himself, who had a vulnerable back, but he protested that the job had to be done and given the constraints with regard to time under which he had to operate there was no way, other than by climbing the shelving, that he could check the stock. He added that, while he agreed that the activity was a hazardous one, he could never recall actually having it in his mind that he was risking injury when he was climbing the shelving. He also said that, from time to time, he complained to members of the Quinnsworth staff, both management and on the floor, about the fact that the aisles were so cluttered with stock that he could not conveniently gain access to stocks of biscuit and, more often than not, the reply which he got was “ what else can we do ”; a reply with which, incidentally, Mr. McMahon said he sympathised because he recognised that they were also under pressure on Monday mornings. In this regard, Mr. Owen Jones, who was assistant manager at Quinnsworth at the material time, said that climbing racking was wholly unacceptable so far as Quinnsworth were concerned and that he never saw the Plaintiff climbing shelves nor did he know that the Plaintiff was accustomed to doing so although he agreed he used to meet the Plaintiff on most Monday mornings. He also said that he had no recollection of ever having had any complaints from the Plaintiff with regard to his inability to access stocks of biscuits. Moreover, he said that if it was a fact that access to those stocks was blocked, the impediment should be moved so that the portable platform could be used. Mr. Jones added that, if it were the case that the Plaintiff was in the habit of climbing shelving every Monday, he thought that he (Mr. Jones) would have noticed it although he agreed that he was always very busy on a Monday morning. However he acknowledged that the injuries of which the Plaintiff complained had resulted from his falling while in the act of climbing shelving. Mr. Jones also pointed to the fact, as he maintained, that there were signs fixed to the shelving containing legends such as “ THINK SAFETY - ALWAYS USE A LADDER ” and “ CLIMBING UP OR DOWN RACKING IS FORBIDDEN ” and he produced photographs showing those signs on racks of shelves. For his part, the Plaintiff empathetically denied that such signs were on the racks of shelving that he climbed and Mr. Osborne gave evidence that there were no such signs on the shelving which he examined, which is evident from the photographs which he produced. While, in the light of the photographs produced by Mr. Jones, I have no doubt but that, at some stage, such signs were affixed to the racks of shelving in the Quinnsworth warehouse, I am satisfied by the Plaintiff’s evidence that he was never aware of them and that neither were they brought to his attention. Indeed, if they were there at the time of the Plaintiff’s accident, as Mr. Jones asserted, I cannot comprehend why they would have been removed before Mr. Osborne examined the shelving or, indeed, why Mr. Osborne was not told about them. I am also satisfied that whether or not Mr. Jones ever saw the Plaintiff climbing shelving, or whether or not he was aware that the Plaintiff was accustomed to engaging in that activity, other members of the Quinnsworth staff, including management, must have been aware that that was going on and, nevertheless, did nothing about it although they must have recognised the inherent danger in the activity. Insofar as Mr. Jones is concerned, I will give him the benefit of the doubt and accept that he was so busy on Monday mornings that he just did not notice what the Plaintiff was doing. Insofar as Irish Biscuits Ltd. were concerned, it is clear that, through the medium of their area sales manager, Mr. Michael McHugh, they were aware that the Plaintiff was engaging in the potentially dangerous practice of climbing racks of shelving to check stock in the warehouse of Quinnsworth and, yet, they took no steps whatsoever to ensure that that practice was discontinued. Indeed, I am satisfied that the Plaintiff complained to Mr. McHugh that he found it difficult to gain access to stocks of biscuits in the Quinnsworth warehouse although he does not appear to have complained in that regard to anyone else in Irish Biscuits Ltd. and neither does it appear that he followed up that complaint when nothing was done about it. In this regard, it is noteworthy that Ms. Derbhla O’Brien, who was National Sales Manager with Irish Biscuits Ltd. at the material time never heard of any complaint with regard to the conditions under which their sales representatives, including the Plaintiff, had to work and to check stock in the Quinnsworth warehouse and, as I interpreted her evidence, she seems to believe that, in the absence of such complaints, Irish Biscuits Ltd. had no obligation to carry out any checks on the working conditions of their sales staff. Indeed, she never visited the Quinnsworth warehouse; her excuse being that, as Irish Biscuits Ltd. had over a 1000 outlets for their products, it was impractical to check them all. Ms. O’Brien denied ever having seen a declaration signed on behalf of Irish Biscuits Ltd. on the 30th March, 1994 whereby Irish Biscuits Ltd. purport to acknowledge that all of their employees who were likely to visit the second named Defendant’s premises had been made aware of their obligations under Section 9 of the Safety, Health and Welfare at Work Act 1989 and that she never saw the safety notice which purports to have been attached to that declaration although it was agreed by the parties that that document was signed on behalf of Irish Biscuits Ltd.

3. The circumstances of the Plaintiff’s accident, as recounted by the Plaintiff in the course of his evidence, were that, on the 10th June, 1996, which was a Monday, he attended at the Quinnsworth premises at Cavan Town, as was his wont, at about 9.45 - 9.50 am. He said that he collected his stock sheets and then set about checking stocks of biscuits but he found as there were pallets full of stock on the floor in front of the biscuit section whereby his access to that section was inhibited. He said that he asked a young lad, who was driving a pallet truck, to move those pallets and the young man responded that he would when he was finished what he was doing but the fact of the matter is that he never came back. Accordingly, as the Plaintiff was under his usual time constraint, he felt that he had no option but to climb the shelving to check the biscuit stocks. In particular, he climbed on to the third shelf so that he might check stocks of biscuits on the top shelf, which he did with his right hand while steadying himself by holding a vertical bar in the centre of the rack with his left hand. While he was so engaged, he heard someone speaking and apparently he turned in the direction of the voice and, as he did, his hand slipped and he fell to the ground. Given that what he was doing at the material time was inherently dangerous and obviously so, as the Plaintiff, himself, conceded in evidence, although he protested that the risk was not to the forefront of his mind while he was actually climbing the shelving, it might be suggested that Mr. McMahon is entirely the author of his own misfortune. However, I think not. In this regard, I am satisfied that, at the material time, and, indeed, on all Monday mornings, Mr. McMahon was under pressure to ensure that the Quinnsworth order for biscuits for the forthcoming week was with his employers before 10.30 am and that he reasonably feared that there would be serious consequences for him in the event that he failed to meet that deadline. It was suggested on behalf of the Defence that he could have avoided that pressure by coming to the Quinnsworth warehouse earlier that morning (apparently, it is open from 7.00 am) but, while that may well be so, it appears that no one; either from Irish Biscuits Ltd. or from Powers Supermarkets, suggested that he might do so, and in any event, his duties on that morning also required that he visit the premises of Dunnes Stores Ltd. in Cavan Town for the purpose of carrying out the self same exercise to that which he was carrying out in Quinnsworth at the time of his accident. Accordingly, what ever order in which he visited the two premises, it seems to me that he was always going to be under pressure. I have great sympathy for and accept his assertion that as he was prevented from using the mobile platform by reason of the presence of pallets of product in front of the shelves on which biscuits were located the only way that he had to gain access to those biscuits was to climb the shelving and, as the stock had to be checked within a very limited time, that is what he had to do. His only alternative was to wait around until the aisles were clear so that he could use the moving platform, in which event he would miss his deadline with all the undesirable consequences for him which he envisaged. In those circumstances, I do not fault the Plaintiff for doing what he did at the material time. In my view, he had little alternative but to do so. However, given that he acknowledged in evidence that he recognised that he was taking risks in climbing the shelving in question; particularly, as he had a vulnerable back, although I note that the risk was not to the forefront of his mind at the time that he was actually climbing the shelving, I think that he can be faulted for not following up the complaint which he made to Mr. McHugh and, in particular, for not putting more pressure on his employers to do something to ensure that he was not required to climb shelving for the purpose of checking stock in the Quinnsworth warehouse. However, if the Plaintiff can be faulted on that account, I think that his blame worthiness in respect of the incident which gave rise to this claim is minimal compared with that of his employers and that of Powers Supermarkets.

4. Insofar as Irish Biscuits Limited are concerned, it is settled law that, as the Plaintiff’s employers, they owed him a duty, as was stated by the Supreme Court in the unreported case of Dalton v Frendo (judgment delivered on the 15th of December 1977) “to take reasonable care for the servants’ safety in all circumstances of the case”. This does not mean that Irish Biscuits Limited are the insurers of the safety of the Plaintiff in the course of his employment with them but, in my view, it does mean that they were required to take all reasonable steps to ensure that he was not exposed to avoidable risk of injury in the course of his employment.

5. To that end, it is my view that they had a duty to acquaint themselves of the facilities which were provided by their customers to enable their (Irish Biscuits Ltd) sales staff to carry out duties, which were for their mutual benefit, and to satisfy themselves that those facilities and the system operated by their customers whereby their sales staff carried out their duties did not pose a threat to their well being. In my view, Irish Biscuits Ltd. fell down badly with regard to that duty. In this regard, it was clear from the evidence of Ms. Derbhla O’Brien, the National Sales Manager for Irish Biscuits Ltd. at the material time, that she and, presumably, her employers did not consider it necessary to visit their various sales outlets to ensure that the facilities afforded to their sales staff were appropriate. Indeed, in the circumstance that Irish Biscuits Ltd. appear to have 1,000 outlets for their product, Ms. O’Brien maintained that it was not practicable for them to inspect all those outlets. I do not agree. However difficult it might be, it is my opinion that the duty of care which Irish Biscuits Ltd. owed to its employees obliged them to ensure that the facilities afforded to their employees by their customers to enable their employees to carry out duties for the mutual benefit of themselves and their customers did not threaten the safety of their employees. This, it appears, Irish Biscuits Ltd. did not do; at least, insofar as the Plaintiff was concerned. However, the Plaintiff’s immediate superior at the material time, Mr. Michael McHugh, was aware of the risks which the Plaintiff was taking and, indeed, he gave evidence that he passed on the Plaintiff’s complaints in that regard to his superior; a Mr. Freehill so that the fact of the matter appears to be that while Irish Biscuits Ltd. do not, as a matter of practice, inspect all of the facilities afforded by their customers for their sales staff; insofar as the Plaintiff was concerned, senior management in Irish Biscuits Ltd. were aware of the risks to which the Plaintiff was exposed while checking stock in the Quinnsworth warehouse and, yet, they did nothing about it. In my view, their failure to do so amounted to negligence which significantly contributed to the Plaintiff’s fall and the resultant injuries which he suffered. In this regard, I reject the submission by Counsel for Irish Biscuits Ltd that, in the absence of any relevant complaint, it is unreasonable to expect an employer to inspect premises of a third party in which members of the employers staff are expected to carry out duties on behalf of the employer, or to make enquiries with regard to the system of work maintained for members of their staff on the premises of the third party for the purpose of satisfying themselves that their staff are not exposed to avoidable risks. If that were so, it seems to me that an employer would be entitled to abrogate the duty of care he owes to his employee in favour of a third party which I do not perceive to be the law in this country and neither do I think that the judgment of the Court in the case of Mulcare v Southern Health Board (1988 ILRM at page 689), to which I was referred, is authority for that proposition. Accordingly, it is my view that, not only were Irish Biscuits Ltd negligent for their failure to act upon the complaint made by Mr McMahon but I think that they were also negligent for failing to appraise themselves of the system of work involving their employee which was tolerated in the Quinnsworth warehouse.

6. Insofar as Powers Supermarkets are concerned, there is no doubt but that they were in control of the situation at the time of the Plaintiff’s accident and I have no doubt but that members of their staff, including members at managerial level, were aware of the manner in which the Plaintiff was accustomed to checking stocks of biscuit and, being aware of that, they must also have been aware of the risk of injury to which the Plaintiff was exposed and, yet, they did nothing to avoid that risk. In my view, that also was a negligent omission which contributed to the Plaintiff’s accident, and indeed, was the main contributing factor. In my view, as between Irish Biscuits Ltd. and Powers Supermarkets, insofar as blame worthiness is concerned, in the circumstance that Powers Supermarkets were in control of the situation at the material time and had the immediate opportunity of doing something which might have avoided the accident which befell the Plaintiff, I think that they are the more to blame. In this regard, I am very much influenced by the fact that the Plaintiff’s visit to the Quinnsworth warehouse on a Monday morning was a scheduled visit of which Powers supermarket were well aware and a scheduled visit during which the Plaintiff would be under severe constraints with regard to the time within which he had to do whatever was necessary to ensure that they (Powers Supermarkets) got a fresh supply of biscuits on the following Wednesday, as the second-named Defendants were also well aware. Accordingly, they should have ensured that their premises were in a state of preparedness for the Plaintiff which they, obviously, were not.

7. In the light of the foregoing, I would apportion fault for the Plaintiff’s accident as to 60% against Powers Supermarkets, 30% against Irish Biscuits Ltd, and, notwithstanding that the negligence of the Defendants would, in my view, also amount to breach of their statutory obligations under the relevant provisions of the Factories Acts and Regulations made thereunder, I find that the blameworthiness of the Plaintiff to which I have already referred amounts to contributory negligence to the extent of 10%.

8. Insofar as damages are concerned, in the light of Mr. Osborne’s evidence, it would appear that the Plaintiff fell to the ground from a height of a little over 9’. He says that he landed on his bottom in a more or less sitting position between two pallets and, in the course of his fall, that he broke jars of coffee which were on one of the pallets. He claimed that he was immediately conscious of pain in his lower back. Members of the Quinnsworth staff came to his assistance and he rested for a while and was then taken by a Mr. Curtis to a general practitioner in Cavan Town, who gave him a pain killing injection. Following that, Mr. Curtis drove the Plaintiff home. However, notwithstanding the injection, Plaintiff said that the journey was a very painful one. When Mr. McMahon got home, he went to bed where he says that he had a dreadful night, which I interpreted as meaning that he had a lot of pain and little sleep. On the following day he went to his own general practitioner, Dr. O’Gorman, who gave him more pain killing injections which only afforded short term relief. By the 14th June, 1996 (four days after his accident) Mr. McMahon says that he was experiencing considerable low back pain which radiated into both legs; so much so that Dr. O’Gorman saw fit to send him to Monaghan County Hospital where he came under the care of Mr. Archie Moore, a general surgeon. X-Ray examination of the Plaintiff’s spine revealed Spondylosis but no evidence of fracture. The plaintiff spent one week in Monaghan County Hospital where he had more pain killing injections and also a C. T. scan which revealed degenerative changes in the facet joints but no disc prolapse. However, there were also degenerative changes at the level L. 5/S. 1 disc. The Plaintiff was then referred to Mr. Imran Sharif F. R. C. S. I., an orthopaedic surgeon, who had him admitted to Navan County Hospital for a further two weeks during which he had an epidural injection which gave him some relief from his symptoms for about six to eight weeks. During that time, Mr. McMahon also had physiotherapy treatment and was advised with regard to exercises which he could carry out at home to ease his back. He told me and I accept that he carries out these exercises to the present day. Shortly after his discharge from Navan Hospital, the pain in the Plaintiff’s lower back returned and he experienced shooting pains down both legs; principally into his left leg. He continued to attend Mr. Sharif, who prescribed pain killing medication but the pain persisted. So Mr. Sharif then arranged for a M. R. I. scan of the Plaintiff’s lumbar spine which was carried out on the 21st January, 1997. This showed osteophytic changes and a disc bulging at the Level L. 2 with some compression on the Thecal Sac. In addition, there were long standing degenerative changes at the Level L. 5/S. 1 and some disc space narrowing at that level. In the light of those findings, Mr. Sharif referred the Plaintiff to Mr. Frank Dowling F. R. C. S. I., another orthopaedic surgeon, who specialises in treating back injuries. In this regard, it is significant that the Plaintiff told me that from in or about the year 1992, he used to experience occasional twinges of pain in his lower back but that, if he did, it did not interfere with his capacity to work or, indeed, his capacity to indulge his hobby of long distance cycling which involved riding a racing bicycle over a hundred miles a week. In this regard, he told me that he had been accustomed to riding 75 miles every Saturday, 30-35 miles every Sunday and, in the summertime 15/20 miles on two or three evenings in the week. However, in the summer of 1994, he experienced an episode of severe pain in his back which radiated into his left leg and which incapacitated him from work for a period of thirty nine days. At that time, he was referred to Mr. Fred Kenny F. R. C. S. I., an orthopaedic surgeon who had him admitted to Navan Hospital where he was subjected to a bone scan, which was normal. Accordingly, Mr. Kenny told me that he was satisfied that Mr. McMahon had not suffered a disc injury but rather had been suffering from irritation of a nerve root at the Level L. 5/S. 1. Accordingly Mr. Kenny prescribed an epidural injection and some traction which afforded the Plaintiff some considerable relief and, although he was involved in a road traffic accident on the 16th July, 1994 in the course of which, while cycling his bicycle, he was in collision with an army vehicle as a result of which he was thrown across the bonnet of that vehicle, the resultant injuries which he suffered were more related to his neck than to his back and in fact he was able to return to work a few days later and from that time until 10th June, 1996, when he was involved in the incident which gave rise to this claim, Mr. McMahon was able to carry out his work and to indulge his hobby of cycling without any interruption on account of back problems although he did admit that, occasionally, he experienced an odd twinge of pain in his back which necessitated pain killing medication. In this regard, Mr. Kenny told me that he monitored Mr. McMahon’s progress from the time that he had had the epidural injection on the 9th June, 1994 until the 2nd February, 1995 and that he was satisfied that, by that time, Mr. McMahon had fully recovered from the back problem which he had experienced in June, 1994. However, Mr. Kenny agreed that he had advised Mr. McMahon that he ought to be a back conscious person and for his part, Mr. McMahon accepted in evidence that, ever since the summer of 1994 he had been conscious that he had a vulnerable back and that he behaved accordingly. As a result, I am satisfied that he had no significant problems with his back from this summer of 1994 until his accident on the 10th June, 1996.

9. As I have already indicated, following the M. R. I. scan which the Plaintiff had in January 1997, Mr. Sharif referred him to Mr. Frank Dowling. In that regard, Mr. Dowling gave evidence that in the light of the result of the M. R. I. scan, he was satisfied that Mr. McMahon did not suffer a prolapsed disc but rather that, as a result of the incident which gave rise to this claim, he had aggravated pre-existing degenerative changes in his lumbar spine which gave rise to the pain which he has experienced since that time. However, it was Mr. Dowling’s opinion that, while surgery was not indicated, the likelihood is that, to a greater or lesser extent, Mr. McMahon would experience pain in his back for the rest of his days and that, as a result, he would have to be a back conscious person and, in particular would only be fit for light work in the future. However, Mr. Dowling expressed the view; a view which was subsequently endorsed by both Mr. Kenny and by Mr. Sharif that, had it not been for the incident which gave rise to this claim, the likelihood is that Mr. McMahon would have been able to continue to work as a sales representative for Irish Biscuits Ltd. until he would normally have retired at age sixty five although they accepted that, even before the incident which gave rise to this claim, Mr. McMahon had a vulnerable back. Mr. Dowling also expressed the view that the Plaintiff’s current complaints with regard to his back were genuine, as were his efforts to rehabilitate himself, and it seems to me that, essentially, Mr. Dowling’s views were ad idem with the views subsequently expressed by Mr. Kenny and by Mr. Sharif; namely that, for the rest of his life, the Plaintiff was going to experience recurring pain in his back of variable severity, that he was going to have to be a back conscious person and that, in particular, he would only be fit for light work in the future and, especially, must avoid lifting heavy objects, stooping or bending to any great extent. Furthermore, it is their view that he will never again be able to resume his pre-accident cycling activities although Mr. Dowling agreed that he might derive some benefit from cycling a mountain bike; a suggestion which the Plaintiff has adopted with, apparently, some beneficial results. In this regard, the Plaintiff himself told me and I accept that, since his accident, the pain in his back is aggravated by standing or sitting in one position for long periods of time, that he is restricted by pain from long walks and that he has been unable to resume riding a racing bicycle though, as I have indicated, in the light of Mr. Dowling’s advice, he rides a mountain bicycle for short distances from time to time. However, Mr. McMahon made it clear that a mountain bike was no substitute for the long distance cycling in which he was accustomed to engage prior to his accident and that he very much missed being unable to continue to participate in that activity as, indeed he is disappointed by the fact that he can no longer resume his work with Irish Biscuits Ltd. as a sales representative. Indeed I have rarely come across a Plaintiff who is so upset at being unable to resume his pre-accident employment and one who is so anxious and motivated to get some work to occupy himself. In this regard, I accept that, since he was let go by Irish Biscuits Ltd. Mr. McMahon has done all that could reasonably be expected of him in his efforts to obtain alternative employment and his failure to do so is a source of considerable disappointment to him. In this regard, he said with feeling “ I do not want to be stuck with the Social Welfare for the rest of my life ” and I have little doubt that he will continue to do all that he can to avoid that situation. Regretfully, however, in the light of the evidence which I heard from Ms. Susan Tolan, a rehabilitation therapist, and notwithstanding the views of Messrs. Dowling and Sharif and, indeed, those Mr. Martin G. Walsh F. R. C. S. I., an orthopaedic surgeon, who examined the Plaintiff on behalf of the Defendants, whose views with regard to the Plaintiff’s capacity for work are similar to those of Messrs. Dowling and Sharif, that, despite his ongoing back problems Mr. McMahon will have a capacity for light work, it is my opinion that he will never again obtain worthwhile employment and that his worst fears; namely, that he will live on Social Welfare payments for the rest of his life, will be realised. In this regard, in the absence of any contradictory evidence, I accept Ms. Tolan’s view that the Plaintiff will never again succeed in obtaining a worthwhile job for the reasons that it is well known that would be employers are reluctant to hire people who have a history of back injury and, in any event, the fact that he has now been out of work for nearly six years will deter prospective employers from taking him on. Moreover, while he may be fit for light work, his lack of education levels, his poor tolerance for sitting and standing and the fact that he will be competing on the labour market with younger, fitter and better educated people will, in my view, all combine to make it extremely unlikely that he will ever again get a worthwhile job.

10. Insofar as the views of Mr. Walsh with regard to the extent of the Plaintiff’s recovery from his injuries are concerned, it seems to me that, as he made a very good recovery from the back problems which he experienced in 1994 and, from that time, until the happening of the incident which gave rise to this claim, he was able to undertake all the responsibilities of his employment and the demands of his long distance cycling without significant difficulty, I cannot accept Mr. Walsh’s view that he is fully recovered from the injuries which he suffered as a result of the incident which gave rise to this claim and I prefer the views of Messrs. Dowling and Sharif in that regard.

11. With regard to the evidence of Dr. Declan O’Keeffe, the pain specialist, as I interpret what he had to say; that his view that the Plaintiff will require repeat lumbar rhizotomies at regular intervals for the rest of his life in order to palliate the ongoing pain which he experiences, is based on the suggestion which, apparently, the Plaintiff made to him that his ongoing pain includes episodes of excruciating pain. Now, while the Plaintiff does appear to have told his general practitioner, Dr. O’Gorman, that he experienced very severe pain in his back from time to time, it seems to me that the implication of the complaints in that regard which he made to both Mr. Dowling and Mr. Sharif was that his ongoing pain is tolerable and certainly, I have no recollection that, when he was in the witness box, he claimed there are times when the pain which he experienced was excruciating. Accordingly, I am not convinced that it has been established on the balance of probability that he will require repeat lumber rhizotomies for the rest of his life.

12. In the light of the foregoing, it seem to me that an appropriate sum for general damages to compensate Thomas McMahon for all that he has suffered on account of the injuries which he sustained in the accident in which he was involved in the course of his employment with the first named Defendants some 5½ years ago and for the fact that he has been deprived of the enjoyment of many aspects of his living during that period is a sum of €40,000.00. Having regard to the fact that, for the rest of his days, Thomas McMahon will have to be a back conscious person, and even if he is, the probabilities are that he is always going to experience a certain amount of back pain and given that he has been permanently deprived of the employment with the first named Defendants which it is clear that he thoroughly enjoyed, that it is extremely unlikely that he will ever again be gainfully employed, and that he will never be able to resume long distance cycling which he also thoroughly enjoyed, I think that an appropriate sum for general damages for the future is €63,500.00.

13. Apart from general damages, it is agreed by the parties that the Plaintiff’s special damages to date amounts to €112,255.08 which comprises loss of earnings of €109,197.00, fees to Dr. O’Keeffe amounting to €2285.53, fees to Mr. Dowling amounting to €107.93, fees to the Blackrock Clinic amounting to €126.97, fees to Dr. O’Gorman amounting to €148.56, fees to the Adelaide Hospital amount to €79.99, pharmaceutical fees amount to €144.75, and damage to a watch amounting to €165.07.

14. As for the future, I am told that, were the Plaintiff still in the employment of the first named Defendants, his net weekly salary would be €593.00 on top of which he could reasonably expect a bonus of approximately €22.00 per week. Accordingly, if he were still employed by the Defendants, he would be taking home an average €615.00 per week. In this regard, Ms Frances Keogh, an actuary, told me that the capital value of the loss of €1.00 per week for this Plaintiff from the present date to age 65, capitalised at 3%, which the parties have agreed is the appropriate rate at which such capitalisation should be made is €505.00. That being so, it follows that the capital value of the loss of the income which the Plaintiff will suffer as a result of being unable to resume his pre-accident employment for the rest of his working life is €310,575.00. However, this does not allow for the fact that, even had the Plaintiff not been involved in the incident which gave rise to this claim, there is a possibility that, at some stage in the future during his normal working life, he would have lost his job with the first named Defendants for one reason or another or that he would have developed some illness which would prevent him from working. Therefore in accordance with the views expressed by the Supreme Court in the course of their judgment in the well known case of Reddy .v. Bates , (1983 I.R. p.141) I think that a discount should be allowed against the Plaintiff’s future loss of earnings on that account. In the circumstance that the Plaintiff had a vulnerable back, before the incident which gave rise to this claim, and notwithstanding his good work record, I think that the appropriate amount of that discount should be 20%. Accordingly, I will allow a sum of €248,460.00 in respect of future loss of earnings. In addition, however, because of the premature determination of his employment I am advised that the Plaintiff’s pension will be reduced by a sum of €386.25 per week and that the appropriate multiplier for capitalising that loss is €338.00. According, I will allow a sum of €130,552.05 in respect of the diminution of the Plaintiff’s pension rights.

15. Having regard to the foregoing, I find that the Plaintiff’s gross damages in respect of his claim herein is €594,768.30 and allowing that that figure falls to be reduced by 10% on account of the Plaintiff’s contributory negligence, I will award the Plaintiff the sum of €535,291.47 payable as to €356,860.98 by the second named Defendants and as to €178,430.49 by the first named Defendants.