Where accident due mainly to plaintiff's default, damages reduced accordingly

Anthony Hogan (plaintiff) v The Electricity Supply Board (defendant).

Negligence - Personal injuries - Severe burns as a result of electrocution - Whether plaintiff negligent - Whether defendant negligent - Contributory Negligence - Conflict of evidence - Post traumatic stress disorder - General and special damages - Safety Health and Welfare at Work (General Application) Regulations 1993.

The High Court (before Mr Justice O'Higgins); judgment delivered 17 December 1999.

The injuries the plaintiff had sustained were caused by his own act or default as a person with his experience should of known of the dangers of electricity. The plaintiff was left with permanent unsightly scarring. Furthermore his suspension from work was not caused or contributed to by the accident, but due to a long standing and pre-existing problem in respect of which the plaintiff had been warned.

The High Court so held in assessing general and special damages at £94,326.00 and in holding that the plaintiff was entitled to 15 per cent of that sum.

Henry Abbott SC, Edward Walsh SC and Kenneth Fogarty BL for the plaintiff; Aedan McGovern SC, Mel Christle BL and Simon McDonald BL for the defendant.

Mr Justice O'Higgins in outlining the facts of the case stated that the plaintiff was a general operative at the ESB's 38KV station in Roscommon at the time of the accident, and was employed there for over 17 years before the accident. On Monday 27 February 1995 the plaintiff and another general operative were working at the station. The person in charge of work was Paschal Macken, an electrician. One of the plaintiff's duties involved cleaning a house transformer in the station with a wire brush with a view to painting it later. The transformer was enclosed in a cubicle made of wire grill. In the morning the transformer had been taken out of the commission prior to the commencement of work on it. At lunch time the transformer had been put back into commission and was energized with electricity.

After 2 o'clock, following his lunch break, the plaintiff returned to the transformer, unbolted the mesh grill and suffered severe burns and shock as he came into contact with the live transformer. As a result the plaintiff has been left with very nasty scarring and suffers from post traumatic stress disorder and depression.

There was a conflict of evidence surrounding the evidence given by the plaintiff and that given by the electrician, Mr Macken. The plaintiff's testimony was that he was not present at lunch time when the transformer was put back into commission and that he was not told that it had been energised. He said that he had gone into the hut to get some paint to have it ready for the afternoon and that Mr Macken and Mr Westman, another general operative, stayed back in the cubicle. He maintained that he did not see what was done at the cubicle nor had he seen the connection been made or the earths being taken off. The plaintiff said that he came out of the hut with Mr Macken and that he said to him "I'll take you out of bad humour, Packie. I'll go and do the painting now." He said that Mr Macken did not stop him from doing so even though the transformer was live.

Mr Macken's evidence was that at about 1 o'clock he had told both the plaintiff and Mr Westman to clear the cubicle as he was going to put the house transformer back into commission. He said he saw the plaintiff leave the cubicle and bolting back the screen. He further denied that he left the hut with the plaintiff and that the plaintiff told him the was going down to paint the transformer.

There was a serious conflict of evidence as to whether the plaintiff was present at lunch time when the transformer was put back into commission. However Mr Justice O'Higgins stated that the account given by Mr Macken was substantially corroborated by the evidence of Mr Westman. Mr Westman said that the plaintiff was present when Mr Macken said that he was going to put the transformer back into service. Furthermore, he said that Mr Macken went off first to make a telephone call after lunch leaving the plaintiff and Mr Westman in the hut. He said that he left the hut at the same time as the plaintiff, and he then returned to get some clothing.

In his evidence, Mr Macken said that after coming upon the scene of the accident, the plaintiff was conscious and said to him: "Sorry Packie, I just forgot." Even though the plaintiff has no recollection of such, Mr Relihan the surgeon said that one should be cautious in placing reliance on what is said by a eperson when he is in severe shock. Mr Justice O'Higgins found the evidence of Mr Macken and Mr Westman more likely to be correct than the evidence of the plaintiff.

However, Mr Justice O'Higgins drew attention to a number of criticisms made of the defendant's system of work by an engineer for the plaintiff. The first criticism was a failure to have task-specific, easily understood instructions. Mr Justice O'Higgins decided that it was not negligent of the defendant not to have the procedures set out in detail. He noted that the plaintiff had 17 years experience and was familiar with the dangers of electricity. In any event he said that such failure did not cause or contribute in any way to the accident. The second criticism, was the failure of Mr Macken to supervise the tightening of the bolts. Mr Justice O'Higgins disagreed with the plaintiff's contention that Mr Macken should have supervised such a procedure by the plaintiff. However he said that when a person of the plaintiff's experience was asked to carry out such a procedure it was reasonable to assume that he was capable of so doing and that it would be done properly.

The next system of work that was criticized was the "declaring off" procedure. In the yellow book of safety rules of 1993, the relevant rule is set out as follows: "When the work is completed and the person in charge of the work has checked that all the persons under his/her charge have been declared off and that the apparatus for which he/she is responsible is ready for operation he/she shall personally remove or supervise the removal of all local earths put on by him/her, or under his/her supervision." The plaintiff maintained that this procedure was not carried out with sufficient formality. The defendant maintained that this procedure was not necessary at the time because the work was not completed. The defendant also maintained that since the accident did not take place at the that time another safety rule applied and that the plaintiff was in breach of rule 6.1.3. which provides that "no person shall commence . . . work on HV . . . apparatus unless he/she complies with the following requirements: that he/she has been instructed by the person in charge of the work . . . that he/she may commence . . . work." Mr Justice O'Higgins stated that the declaring off procedure is appropriate not only on completion of the entire work, but also on completion of a session of work involving a change such as re-energizing the transformer in the cubicle. He said the rule encompasses situations where the apparatus is being re-energized.

Mr Justice O'Higgins decided that the defendant was in default in not fully complying with that procedure. Even though the plaintiff was told to clear the cubicle he was not specifically told to remain clear of the installation. Mr Justice O'Higgins found that such failure contributed to the accident, particularly in view of the fact that during that tour of duty at the transformer station, the house transformer was probably the only item which was put back into commission at lunch time.

Mr Justice O'Higgins noted the roping procedure which was the fourth criticism made. This is described as a necessary precaution for the safe execution of work in stations, but he stated that the peocedure is not to be regarded as a substitute for the safety rules. It is a procedure to be used when the equipment within the roped off area is de-energized. This procedure is in preparation for work on equipment which has been taken out of service and otherwise made safe for work. Mr Justice O'Higgins noted that, while some adaptation of the roping procedure could have been used, the defendant, through Mr Macken, was not negligent in failing to have one on that day. The plaintiff had been made aware some 45 minutes prior to the accident of the re-energizing of the house transformer.

The fifth criticism made was in relation to the turning on of the transformer at lunch. Mr Justice O'Higgins found that turning on the transformer at lunchtime for relatively trivial purposes such as to supply electricity for the kettle and the heating of the hut does not constitute negligence on part of the defendant once the procedure is properly carried out.

Lastly there was an allegation of breach of statutory duty. It was argued that the defendant was in breach of the provisions of section 52(1) the Safety Health and Welfare at Work (General Application) Regulations 1993 (SI No. 44 of 1993). Mr Justice O'Higgins noted that section 52 of the regulations was primarily directed at outside persons gaining access to equipment but indicated that it was not confined to such people. He stated that at the time the plaintiff was not allowed and was forbidden to do so and was in breach of Rule 6.1.3. of the Safety Rules. However, he found that the transformer was not adequately protected and that the plaintiff prima facie came within the ambit of section 52. He found that the breach of section was by the act or default of the plaintiff whose job was to tighten the bolts on the screen. Therefore, he said, the plaintiff cannot take advantage of his own negligence to attach liability to the defendant.

Mr Justice O'Higgins found that the accident was largely caused by the plaintiff's own fault and laid out the reasons why. He found that the plaintiff was told that the house transformer was being re-energerized and that he bolted the screen in the context of that transaction. He found that the responsibility for tightening the bolt was his but that the plaintiff failed to do so properly. Mr Justice O'Higgins further found that he failed to comply with Rule 6 by recommencing his work after lunch without been told to do so. He also found the plaintiff to have failed to advert to the significance of the screen and that he failed to appreciate the significance of the earths not being connected and the disconnection bars being in the live position. In those circumstances Mr Justice O'Higgins found that the plaintiff must bear most of the responsibility for the accident. He found the plaintiff 85 per cent at fault and the defendant 15 per cent at fault since it failed to fully comply with the "declaring off" procedure.

Mr Justice O'Higgins noted the extent of the plaintiffs injuries finding that on the day of the accident the plaintiff was brought to hospital shocked but in a conscious state. The injuries he suffered were very severe burns to his back, both arms and legs. He had various skin grafts on his back , both arms and on his right leg. Having been reviewed from March 1995 to October 1995 he was given a certificate to allow him to return to work. In May 1996, the plaintiff was seen by a doctor on behalf of the defendant and was suspended from work on full pay for a year and afterwards without pay. Following his suspension his mental health deteriorated and he suffered from insomnia, irritability and depression. Mr Justice O'Higgins had regard to various medical reports detailing the scarring that the plaintiff suffered from and stated that the scars, particularly on the back and the left arm, were very unsightly. He was aware that when the plaintiff returned from hospital he suffered from occasional depressive episodes. He was diagnosed as suffering from post traumatic stress disorder and having some symptoms of depression. However Mr Justice O'Higgins found that his psychological symptoms including exacerbation of alcoholism have now settled to some extent and that they should further improve.

Turning to the question of damages Mr Justice O'Higgins viewed the proper compensation on the basis of full liability as £70,000 for pain and suffering to date and £20,000 for pain and suffering in the future and that the plaintiff was entitled to 15 per cent of that sum. Also the plaintiff was entitled to 15 per cent of special damages. He found that the plaintiff's suspension from work was not caused or contributed to by the accident and in those circumstances the plaintiffs special damages amounted to £4,325.75 and that therefore the plaintiff was entitled to 15 per cent of £94,326.00 which was a sum of £14,148.00.

Solicitors: Bruce St John Blake (Dublin)for the plaintiff; ESB Legal Services Division (Dublin) for the defendant.