THE HIGH COURT

Record No. 3548P/1998
BETWEEN:
MARTIN MULLIGAN
Plaintiff
and
LAURENCE MECHANICAL SERVICES LIMITED
First-Named Defendant
and
LAKELAND DAIRIES CO-OPERATIVE LIMITED
	Second-Named Defendant
and
AMLAC LIMITED
Third Party
(Note: [*#] denotes the start of a new page of the transcript)

JUDGMENT of Mr. Justice Eamon de Valera delivered the 23rd day of July, 2003
	This is an action brought by the plaintiff against the defendants for serious personal injury caused to him on the 31st January, 1997 at the premises of the second defendant at Killeshandra, Co. Cavan.
	The second defendant had joined the third party prior to the hearing of the action but this matter was disposed of on the third day of the trial and is of no relevance to this judgment.
	The hearing of the action commenced on Tuesday, the 21st January, 2003. [*2] 
	On Wednesday, the 22nd January the action was settled between the plaintiff and the defendants and a figure for damages agreed.  The amount was not formally disclosed to the Court.
	Subsequently, on Thursday, the 23rd January, 2003 the third party, Amlac Limited, was discharged from the action on consent of all the parties; the costs issue being left to the conclusion of the action between the defendants.
	At the conclusion of the evidence, counsel for the first defendant, Laurence Mechanical Services Limited, conceded that this defendant had been negligent and failed in its duty of care to the plaintiff.
	Therefore the remaining issues to be decided may be summarised as follows:
(1)	Was the second defendant negligent?
(2)	If so, what is the correct apportionment of fault, or blameworthiness, between the first and second defendants?

	The plaintiff, Martin Mulligan, was an employee of the first defendant which was in turn a sub-contractor to the second defendant in respect of extensive works being carried out at the second defendant’s premises at Killeshandra, Co. Cavan.
	The plaintiff was employed specifically as a specialist welder by the first defendant and directed by it following an agreement between the first and second defendants, to work for the second defendant under its (that is the second defendant) control and direction.  The plaintiff continued to receive his pay from the first defendant but answered to the directions of the second defendant’s foreman.  
	On the 31st January, 1997 the defendant had been assigned by the second  defendant’s foreman to certain welding duties.  During the course of this work he was approached by the servant of the first defendant and directed to leave his welding duties and drive a forklift truck (for which he had no formal training) and which was [*3]  the property of the second defendant.  This was to assist the first defendant’s workmen in moving a stainless steel tank at a different part of the said premises. 
	It is clear from the evidence that what followed was a serious breach of the first defendant’s duty to the plaintiff and this is accepted by the first defendant.
	Counsel for the first defendant argued that the second defendant was also “blameworthy” in five discrete and separate ways.  These may be summarised as 
(1)	Causing or permitting the plaintiff to operate a forklift truck without first ensuring that he had sufficient skill and/or experience so to do; and that he had the requisite qualification or “ticket”;
(2)	Failing to ensure that the use of the forklift truck was properly supervised and controlled;
(3)	Failing, pursuant to the Safety, Health and Welfare at Work (General Application) Regulations, 1993 to ensure that in using the forklift truck the plaintiff, as a temporary employee, was properly trained in its use;
(4)	Failing in a duty of care to the plaintiff under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 - Articles 4 and 5 particularly in failing to appoint a project supervisor;
(5)	Failing to ensure the safe use of a forklift truck knowing that it was to be used in the execution of the works specified in the agreement between the defendants, again pursuant to the provisions of the Safety, Health and Welfare at Work (Construction) Regulations, 1995.

	Counsel for the first named defendant asserted that “when the Court approaches the issue of liability to the plaintiff as between co-defendants, the Court looks at the issue of blameworthiness and not causation” and cited authorities to support this assertion. [*4] 
	I accept this proposition as a correct statement of the law on this point and Counsel for the second named defendant did not contest this matter.  
The five headings of blameworthiness listed above may be considered as follows:
1.	The second defendant knew, or ought to have known, according to the evidence, that the plaintiff had on previous occasions on the same site and during the course of the works then being carried out driven forklift trucks.  Such trucks were the property of the second defendant and in these circumstances it was incumbent on the second defendant to ensure that drivers, including the plaintiff, were suitably skilled and qualified for such driving.
2.	The plaintiff was permitted not only on previous occasions but specifically on the occasion in question to drive the forklift truck without, again according to the evidence, any supervision or control or any investigation into his capacity or qualifications.
3.	I accept that the plaintiff was a “temporary employee” pursuant to the Safety, Health and Welfare at Work (General Application) Regulations, 1993 and that the defendant failed in its statutory duty to, inter alia, properly train him, or ensure that he was properly trained in the use of the forklift truck.
4.	I also accept that the second defendant was in breach of its obligations under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 in failing to identify the inadequacies in the use of the forklift truck in the proposed construction work (as defined in the said Regulations) which could, and should, have been avoided by inter alia the appointment of a project supervisor. [*5] 
5.	Similarly under the Safety, Health and Welfare at Work (Construction) Regulations, 1995 the second defendant knew, as is clear from the evidence, that the first defendant intended to use a forklift truck, the property of the second defendant and failed to ensure that the said forklift truck was suitable and appropriate for such use and that the operator or operators, including the plaintiff, were properly trained and qualified for such use.
	In the light of these findings, I am satisfied that the second defendant is in breach of its duty of care to the plaintiff and that blameworthiness also attaches to it.
	I have therefore to determine the degree of blameworthiness between the defendants.
	I think the preponderance of blame must lie against the first defendant.  The primary responsibility for the works being carried out lay with it.  The plaintiff was its direct employee.  It had been retained to effect the removal of the stainless steel tank and the methods employed (or which it sought to employ) were its own.  It directed the plaintiff to attend, drive and control the forklift truck and it was in the best position to realise the inadequacies of the plans and procedures and the dangers into which the plaintiff was being placed.
	The second defendant’s blameworthiness is created both by statute and breach of the ordinary duty of care but it appears to me to be at a somewhat further remove from that of the first defendant and for this reason I am apportioning blame on the basis of 70% against the first defendant and 30% against the second defendant.