High Court of Ireland Decisions

 
THE HIGH COURT
BETWEEN ANTHONY CLABBY

PLAINTIFF

AND GLOBAL WINDOWS LIMITED

DEFENDANT

AND AN POST

THIRD PARTY

JUDGMENT of Finnegan P. delivered on the 21st day of January 2003.

The Plaintiff was born on the 26th February 1962 and is a postman. On the 27th March 1996 he was delivering post to a dwelling house at 21 Coolatree Park, Beaumont, Dublin. The letter plate to the premises was located at the foot of the door some two inches only above ground level. The Plaintiff had a bundle of post in his hand and his post bag with the remainder of the post on his right shoulder. He bent down on his hunkers, lifted the flap to the letter plate with his left hand and inserted a letter with his right hand. On commencing to rise from his hunkers he experienced pain in his back.

In these proceedings the Plaintiff claims damages for negligence against the Defendant as the manufacturer, supplier and installer of the door in question. The particulars of negligence pleaded in the Statement of Claim are as follows –

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1. Caused and/or permitted a doorway to be installed with a low lying letterbox/ letter plate which they knew or ought to have known represented a hazard, a trap and nuisance to persons using same.

2. Failed to have any or any adequate regard for the health and safety of persons whom they knew or ought reasonably to have known were likely to use the said letterbox/letter plate.

3. Failed to have any or any adequate regard to Irish Standard 195 of 1976 of the I.I.R.S. and the recommendations contained therein in regard to the safe location of letterboxes/letter plates in doorways.

4. Failed to comply with the provisions regarding letter plates contained in BS 2911/1974.

5. Failed to have any or any adequate regard to the recommendations of An Post as to the safe location of letter plates and requests that the manufacturers and suppliers of same have regard to these recommendations.

By letter dated 20th April 2001 an additional particular of negligence was pleaded as follows –

At all times material hereto, the Defendant knew or ought to have known that postmen would be required to use the said doorway and the low lying letterbox installed

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therein for the purposes of delivering mail to the said premises. In the premises, the Defendant owed such postmen (including the Plaintiff) a duty of care in the manufacturer, supply and/or installation of the said doorway so as to ensure that the letterbox/letter plate therein would not be so installed as to create a risk of injury to such persons by requiring them to bend or stoop so as to deliver mail to the said low lying letterbox/letter plate.

The Defence delivered denies liability and pleads that the injury sustained by the Plaintiff was as a result of his own negligence and/or contributory negligence particulars of which are as follows –

1. Exposed himself to risk of injury or damage of which he knew or ought to have known

2. Failed to take care for his own safety.

3. Failed to carry out his task properly, or safely.

4. Failed to ensure that he would not injure himself while carrying out his work.

5. Failed to mitigate his loss if any.

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6. Such further and other particulars of negligence and/or contributory negligence which may be more particularly in the knowledge of the Plaintiff and may be adduced at the hearing of this action.

On the evidence adduced by the Plaintiff I am satisfied that the door in question with the letter plate situated as described was manufactured, supplied and installed by the Defendant in December 1993. I am satisfied that the Plaintiff sustained his injuries in the circumstances and manner which he described.

Low level letter plates were recognised by the Department of Posts &Telegraphs and by An Post and postmen as a problem. In Barclay v An Post & Another 1998 2 I.L.R.M. 315 the Plaintiff was a postman who sustained injury to his lower back on the 30th June 1993 in delivering a letter to a low letter plate. He returned to work at the end of August or the beginning of September 1993. On the 21ST October 1993 he was employed on overtime to deliver post to a new development of 350 houses all of which had low letter plates and he sustained a recurrence of the injury. He instituted proceedings against An Post, his employer and against the occupier of the premises at which he sustained his injury, the second named Defendant. The action against the second named Defendant was discontinued. It appears from the report at page 394 that Senior Counsel for the first named Defendant An Post accepted that low letter plates posed a danger to the health of postmen and that the type of injury suffered by the Plaintiff was foreseeable. This was not surprising in the light of the evidence which was recorded in the Judgment at pages 389 - 393 of the efforts made by the Department of Posts & Telegraphs and by An Post from 1966 up to the date of hearing to persuade various statutory bodies to regulate the positioning of letter plates

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upon the basis that low letter plates represented a health hazard in terms of potential for back injury. It was there held that the Defendant was not negligent in relation to the injury sustained on 30th June 1993 but was negligent in relation to the injury sustained on the 21st October 1993 - at that date the Defendant was aware that the Plaintiff had suffered a severe back injury in June 1993 and his back was to the knowledge of the Defendant vulnerable at the 21st October 1993 when he was sent out to deliver mail to a development where some 350 houses had low letter plates.

It appears from the Judgment at page 391 that the Department of Posts and Telegraphs had an input into IS l95 of 1976 Standard Specification (Letter Plates) Declaration 1976 in that additional material was included with. regard to the positioning of letterboxes. The foreword to the Declaration contains the following –

"Compliance with this specification will have the following advantages:-

1. Injury to postmen will be avoided.

2. Delivery of mail will be faster as the postman will not have to stoop or reach or wait for the door to be opened except on infrequent occasions.

3. Damage due to the folding of mail which is oversize for existing letter plates will be reduced.

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The requirements for the positioning and fixing of letter plates are more appropriate to a Code of Practice but are included in an Appendix in this specification for the present ".

Insofar as injury is dealt with in the Declaration it is dealt with as follows –

4.2 The various component parts of a letter plate shall be smooth and designed to preclude injury to hands when inserting mail.

Appendix A deals with the location of letter plates. The Appendix contains nothing to suggest that the possibility of injury is intended to be addressed: rather what is addressed is convenience -see Appendix A at A1.3 –

"Apart from being inconveniently situated, a letter plate that is low down enables mail to be burgled from the floor inside ".

There is a corresponding British Standard BS 2911 of 1974 and Appendix A there is identical to Appendix A in the Irish Standard.

On my reading of I.S. 195 of 1976 I am not satisfied that it was concerned with the possibility of postmen or indeed occupiers sustaining low back injury. Appendix A to the same was concerned with convenience. I am not persuaded to the contrary by the evidence of Mr. McCabe.

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In late 1994 An Post commissioned a report from Ms Auveen Byrne which dealt with the possibility of low back injury but this is subsequent to the supply of the door with which I am concerned. Following on from this An Post took a number of steps to highlight and publicise this problem. In June 1995 they wrote to among others the Irish Homebuilders Association and the Royal Institute of Architects of Ireland letters which contained the following paragraph –

"The result of badly placed letterboxes can have a detrimental effect on the health of our delivery staff. It is necessary for them to bend down virtually to ground level while carrying a bag of mail in order to place letters in low letterboxes. It is often the case that low letter plates are fitted to many if not all doors in new housing developments ".

Again the problem as identified by An Post was set out in a leaflet which they circulated widely in late 1995 –

"Serious delivery problems can occur because of the location of letterbox plates in doors.

Low letterbox plates:

Post person has to bend down to insert mail through the aperture while carrying a bag of mail.

Where low letterboxes are located in a number of consecutive houses (in a scheme) it is a major problem. Repetitive bending can cause back strain.

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Letters on the floor:

The elderly, infirm or disabled can find it very difficult to pick up letters off the floor where low letter plates are in use ".

The correspondence and the leaflet were the work of Mr. McCabe who gave evidence before me and it is clear from his evidence that he saw the problem as one of low back injury as a result of repetitive bending and this is borne out by the wording of the leaflet.

The medical evidence and in particular that of Mr. McNamee on behalf of the Plaintiff is that the risk involved in the manoeuvre being carved out by the Plaintiff is no different from that involved in picking a pin from the floor or removing a cup from a low level kitchen cupboard. Each time any such operation is carried out there is a risk. The more frequently the operation is carried out the greater the risk in mathematical terms. However repetition does not make injury more likely in medical terms. The weight of the object to be lifted is not a factor. The injury could be sustained lying in bed. The injury can be sustained when flexing forward and the risk is increased if there is a simultaneous twisting motion. The injury can be avoided by adopting a proper posture and avoiding flexing the back. The risk is increased if the flexing is accompanied by a twisting motion.

I am satisfied on the evidence of Mr. Bolger and of the Plaintiff given in cross examination that the Plaintiff was trained in lifting techniques and that as part of that training advised as to the method of effecting delivery to low letter plates. He was

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advised as to the manner in which he should position his feet and to bend down while keeping his back straight with his head down and chin in. Mr. Bolger said that this was the technique to be employed whether one was putting on socks or picking up a paper clip. Most importantly however Mr. Bolger made it very clear that the postman in carrying out such an operation should take his postbag from his shoulder. This the Plaintiff did not do. Mr. Bolger demonstrated the correct technique in court and satisfied me that it is possible without difficulty to deliver a letter to a low letter plate using the same: he could bend down keeping his back straight and perform the operation without any discernible twisting movement. On the basis of the demonstration I prefer the evidence of Mr. Bolger to that of the Plaintiff s engineer, Mr. Romeril, which was to the effect that the operation could not be carried out without flexing the back and performing a twisting motion. I am also satisfied that the possibility of carrying out the operation without flexing and twisting is made more difficult if the post bag is not removed from, the shoulder.

Statistics in relation to injuries sustained by postmen in delivering mail to letter plates of private residences for the years 1991 -1994 were produced in evidence. Having regard to the date of installation of the door at the centre of this claim statistics up to the end of 1993 appear to me to be relevant and these are as follows:

Year	No. of Incidents	Region	Accident Details and work involved	Potential Injury	No. of workdays Lost
1990	None	-	-	-	-
1991	1	Dublin	Strained back bending while placing mail in low letterbox.	Minor	6
1992	1	Cork	Cut finger in letterbox while out on door to door delivery.	Minor	2

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1993	2	Dublin	Strained back bending while placing mail in low letterbox.	Serious	7
		Dublin	Strained back bending while placing mail in low letterbox.	Minor	9

The two incidents recorded in 1993 must relate to the Plaintiff in the Barclay case which I have mentioned above.

A striking feature of the concern and discussion about the positioning of letter plates is that the householder is by and large ignored. It is adverted to in An Post's leaflet as a problem for elderly, infirm or disabled householders. It is unusual in private residences to have a letter box behind the letter plate and in the great majority of private residences post will fall to the floor and in turn have to be picked from the floor by the householder. The householder in doing so runs exactly the same risk in medical terms as the postman and which the Plaintiff's witnesses tell me is exactly the same risk as if picking up a pin or removing an item from the bottom shelf in a cupboard or say a supermarket. Other than the concern expressed in An Post's leaflet for elderly, infirm or disabled householders performing this operation this does not appear to have been considered: it is not considered in either the Irish or British Standards. This confirms to me that the Irish Standard was concerned only with injury from sharp edges to letter plates and in Appendix A with the convenience of postal deliveries. If the concern was with health and safety one would expect at least a recommendation that a letterbox be fitted behind the letter plate to avoid the necessity of bending down to the floor to collect post.

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In the light of the foregoing I propose to consider the law as to whether the Defendant in this case owed a duty to the Plaintiff and if so the extent of that duty and whether the Defendant is in breach of the same. The law is very succinctly stated in McMahon and Binchy Law of Torts Third Edition at page 111 –

"There are four elements in the tort of negligence. These are-

1. A duty of care, that is, the existence of a legally recognised obligation requiring the Defendant to conform to a certain standard of behaviour for the protection of others against unreasonable risks.

2. A failure to conform to the required standard.

3. Actual loss or damage to recognised interests of the Plaintiff and

4. A sufficiently close cause or connection between the conduct and resulting injury to the Plaintiff".

As to the first of these elements it is well settled that the manufacturer of a product owes a duty of care towards those who may be injured or damaged by the product. There is a co extensive duty on the supplier of the product. In Tulsk Co-op v Ulster Bank Limited High Court 13 May 1983 unreported Gannon 7. said –

"In every case in which a claim for damages is founded in negligence it is essential to examine the circumstances which bring the parties into relation with each other and in

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which the risks of reasonably foreseeable harm can be identified, and the extent to which each or either has control of the circumstances, with a view to determining what duty of care, if any, may exist, the nature and extent of the duty, and whether and to what extent there may have been a duty of care to which the damage complained of can properly be attributed".

In 1993 the only concern which had been expressed by a statutory body is that contained in I.S. 195 of 1976 and this in its terms is limited to the danger of sharp edges on letter plates and the inconvenience to postmen of letter plates which are too low or too high. I do not see that the concern for convenience is sufficient to impose a duty of care in relation to the injury sustained by the Plaintiff. Again in terms of the risk of back injury I am not satisfied that the same can be said to be unreasonable. It is a factor in every day life that we must bend down - the pin on the floor, the kitchen, cupboard, the supermarket shelf, tying ones shoes and a myriad of other examples come to mind. If An Post had a concern it did not clearly express the same in terms of back strain until 1995 after the date of the. installation of the door with which I am concerned. Indeed to date An Post has not succeeded in persuading any statutory authority to take measures to resolve the problem. While not determinative of liability I note that new doors with low letter plates in 1993 were very common and continued to be installed both in new developments and when glazed porch doors were installed in older houses. I am satisfied on the Defendant's evidence that it was unaware that low letter plates posed a risk of low back injury. In all the circumstances which I have outlined above I am not satisfied that the risk was one of which the Defendant ought reasonably to have been aware. Upon these findings the Plaintiff's claim must fail.

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As to the fourth element, causation, again I am satisfied that the Plaintiff s claim must fail. The injury was caused by the manner in which the Plaintiff carried out the delivery of the letter. As a matter of probability he did not keep his back straight. He did not remove his bag from his shoulder and this I am satisfied as a matter of probability caused him to perform a twisting motion while his back was flexed. On the evidence of Mr. McNamee this is how the injury was sustained and the fact that a twisting motion was performed made it more likely that injury would be sustained and that the injury if sustained would be more severe. In these circumstances while the low letter plate was the causa sine qua non, of the injury the causa causans was the Plaintiff s own action in failing to adopt, the correct posture and maintaining his post bag on his shoulder while effecting the delivery. The Plaintiff accordingly has failed to satisfy me that the legal cause of his injury was the conduct of the Defendant.

In these circumstances I dismiss the Plaintiff s claim. No order falls to be made on the issues between the Defendant and the Third Party.