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1. The Plaintiff in this case, Eamon Stakelum, is a thirty-five year old married man who lives with his wife and three children at 15 Kerrin Court, Thurles, Co. Tipperary. He is currently employed by the Defendants as a porter at their branch office at Liberty Square, Thurles, Co. Tipperary, which employment commenced in the year 1984. The terms of that employment are detailed in a letter dated the 9th day of March 1984 addressed to the Plaintiff by the Defendants but it is significant that those terms do not include a job specification. However, the Plaintiff gave evidence, which was not challenged by the Defendants that his duties included general maintenance of the bank premises at Liberty Square and, in particular, responsibility for the care of a garden which is located at the rear of the premises; a responsibility which, in the context of the Plaintiff's claim herein, is of particular relevance. In this regard, Mr. Stakelum gave evidence which, again, was not significantly challenged by the Defendants that his responsibilities with regard to the care of that garden including cutting the grass, for which purpose he was supplied with a lawn mower, weeding, spraying and trimming hedges and bushes which he accomplished with a shears borrowed from the Assistant Manager, Mr. Liam Lyons. Mr. Stakelum also said that, when necessary, it was his responsibility to change the bulbs of the external lighting to the bank premises which, apparently, was located in the vicinity of the garden and, for this purpose, he had to make use of a ladder. In that regard, it was common case that, at the request of the Defendants, Mr. Stakelum had purchased a ladder with monies provided by the Defendants which he, himself, had chosen and which he conceded was the cheapest ladder available. Moreover, the Plaintiff accepted that he had purchased that ladder from a local store; the proprietor of which was a relative of his and that, at the time of its purchase, he had not indicated the purpose for which the ladder was intended to be used; nor, indeed, did he seek any advice with regard to its suitability for any particular use. However, he said that, in fact, he used the ladder, when necessary, for the purpose of carrying out general maintenance work on the bank premises, for the purpose of changing bulbs on the external lighting and for the purpose of gaining access to trees and bushes in the garden for the purpose of trimming them. In that regard, the Plaintiff emphasised that no member of the bank staff had ever criticised him for using the ladder in the garden although he believed that he would frequently have been seen doing so. Apart from the foregoing and of particular relevance to the circumstances of the incident which gave rise to this claim, the Plaintiff gave evidence that, from the commencement of his employment with the Defendants, he had been requested by the then manager of the Defendant's branch at Liberty Square, a Mr. Seamus Maher; now regretfully deceased, to pick apples for Mr. Maher from an apple tree in the garden and this he did on an annual basis using the said ladder for the purpose of gaining access to those apples. Under cross-examination, the Plaintiff emphatically rejected a suggestion that the only apples that he ever picked in the garden were windfalls for which he did not require the use of a ladder although he conceded that he regularly picked up windfalls which he distributed among the staff and customers of the bank. However, in picking apples for and at the request of the late Mr. Maher, the Plaintiff was adamant he always used the ladder. He also rejected a suggestion that he did not use the ladder to trim bushes and hedges.

2. Arising from the foregoing, I have to say the Mr. Stakelum impressed me as being an honest and reliable historian of the facts which he gave in evidence and I accept his evidence without reservation notwithstanding that I had evidence from two other members of the bank's staff; a Mrs. Sarah Quinn, who had been employed as a part-time cleaner at the Defendant's branch at Liberty Square for many years and Mr. Liam Lyons, who had been the Assistant Manager at the branch since the year 1982, that neither of them had ever seen the Plaintiff using the ladder in the garden and that Mr. Lyons also gave evidence that he was not aware that the late Mr. Maher had ever requested the Plaintiff to pick apples for him. In that regard, I did not think that Mrs. Quinn's evidence was of any significance because she conceded that she was never in the garden and, as for Mr. Lyons, while I accept his evidence that he never actually saw the Plaintiff using the ladder in the garden although he frequently passed through it and, indeed, said that, had he seen the Plaintiff using the ladder without someone holding it for him, he would have protested, in the circumstance that Mr. Lyons specifically endorsed my estimate that the Plaintiff was an honest, decent and obliging man and that he did not disbelieve him, I think that it was coincidental that he (Mr. Lyons) never actually saw the Plaintiff using the ladder in the garden; probably because he used it there so infrequently. I would add insofar as Mr. Lyons's evidence was concerned that I thought it significant that he agreed that the bank had never carried out a risk assessment with regard to the ladder after the Plaintiff had purchased it.

3. Insofar as the incident which gave rise to this claim is concerned, the Plaintiff gave evidence that, at about 4.30 p.m. on the 6th of October 1995 in the tea room at the Defendant's bank, Mrs. Quinn had requested him to pick two apples for her. In the course of her evidence, Mrs. Quinn confirmed that that was so. In compliance with that request, Mr. Stakelum went to the garden with the ladder, positioned the ladder close to the apple tree and commenced to ascend it for the purpose of picking two apples. However, as he did so, he said that the ladder buckled as a result of which it went to the left and he went to the right, that he felt the ladder giving way under him and that he then fell to the ground as a result of which he suffered an injury to his right arm. He said that, when he went to ascend the ladder, he did not notice anything wrong with it but that, after his fall, he noticed that the rubber end caps on the feet of the ladder were missing and that the feet, themselves, were bent. As the Plaintiff's account of his fall was not challenged, I have no doubt but that it occurred as he described it. Following the occurrence, the ladder was examined by Mr. Peter Johnston, a Consultant Engineer, who took photographs of it to which he referred. While Mr. Johnston agreed that the ladder conformed to British standards, which would be recognised in this country he said that, by virtue of those standards, it would be classified as a class three ladder, suitable for domestic use. Accordingly, it was Mr. Johnston's view that it was not suitable for use outdoors because it was too narrow, too light and its feet were too small. Moreover, Mr. Johnston pointed to the fact that the absence of rubber end-caps on the feet of the ladder would further inhibit its safe use on soft ground because the presence of those caps helped to reduce the effect of a load on the legs of the ladder and inhibited their sinking into the ground. In summary, it was Mr. Johnston's opinion that the ladder did not afford the Plaintiff a safe means of access for the purpose of picking apples. Moreover, Mr. Johnston also pointed to the fact that, on the side of the ladder, there was printed a notice preceded by the word "Warning" in large red letters requiring that anyone using the ladder should follow the safety instructions on the underside of the platform of the ladder before use; instructions which (inter alia) prohibited use on soft ground or use which necessitated over-reaching. While the Plaintiff, in evidence, conceded that he was aware of that notice, he also conceded that he had never read the instructions on the underside of the platform. Mr. Johnston was critical of him on that account. He was also critical of the Plaintiff for using the ladder without rubber end-caps on its feet and, in that regard, given that, when he examined the ladder, Mr. Johnston had found clay in the inside of the tubes of the feet of the ladder, it was his opinion, which I accept, that the Plaintiff's fall was attributable to the fact that the feet of the ladder had sunk into the ground when the Plaintiff put his weight on it. In that regard, while the Plaintiff, himself, conceded that he had erected the ladder on a lawn and he conceded under cross-examination that common sense dictated that one should not use that ladder on soft ground; particularly, in the absence of rubber end-caps on its feet, but he maintained that, at the material time, he did not consider that the ground upon which he had placed the ladder was soft. In my view, he was clearly wrong in that assessment. Moreover, by his failure to read the safety instructions on the underside of the platform of the ladder and for using the ladder in the absence of rubber end-caps on his feet (an absence which, in my view, he should have noted when placing the ladder on the ground) I think that the Plaintiff negligently contributed to his own downfall because it seems to me that the likelihood is that, had he read those instructions, as he ought to have, and had he noted the absence of the rubber end-caps on the feet of the ladder, as, again, it seems to me that a reasonably careful person would have, the likelihood is that he would not have attempted to use the ladder at the time and the incident of which he complains would have been avoided. Accordingly, it is my opinion that this Plaintiff was, to a greater or lesser extent, the author of his own misfortune. However, I cannot exonerate the Defendants from all responsibility for what happened to the Plaintiff. For their part, they had an obligation to take reasonable care for the safety of the Plaintiff in the course of his employment. That obligation included a duty to ensure that any equipment used by the Plaintiff in the course of his work was free from defects and suitable for the purpose for which it was being used. In that regard, I am satisfied that the Plaintiff's duties included trimming hedges and bushes in the garden attached to the Defendant's bank for which purpose it was necessary for him to use a ladder. I am also satisfied that he had been requested on an annual basis by the late Mr. Maher to pick apples for Mr. Maher and that again, it was necessary to use a ladder for that purpose. Accordingly, I am satisfied that the Defendants were aware, or ought to have been aware, that, in the course of his employment with them and arising out of that employment, the Plaintiff was accustomed to using a ladder in the garden attached to their bank and that, therefore they had an obligation to ensure that the ladder which he was using was suitable for that purpose. Accordingly, while the Defendants were quite entitled to permit the Plaintiff to purchase a ladder of his own choice on their behalf, I think that it was incumbent upon them to subject the ladder chosen by him to a risk assessment before permitting him to use it and, in the instant case, to specifically draw his attention to the safety instructions on the ladder before he was allowed to use it. In fact, the Defendants took neither of these precautions and, in my view, by their failure to do so, they fell down on the duty of care for the safety of the Plaintiff which they owed to him and, therefore, negligently contributed to the incident of which he complains and the injuries which he suffered as a result of it. In this regard, insofar as blame-worthiness is concerned, I think that both parties were equally at fault and, accordingly, I would apportion fault equally between them.

4. Insofar as damages are concerned, as a result of his fall, the Plaintiff, who is right-handed dominant, sustained a fracture of the distal radius of his right forearm. He told me that this was a very painful injury; so much so that, initially, he was actually sick with pain and I accept that that was so. As a result of that injury, he came under the care of Mr. Michael O'Riordan F.R.C.S.I., a Consultant Orthopaedic Surgeon, and I was furnished with reports from Mr. O'Riordan which established that the Plaintiff's injury necessitated reduction of the fracture and stabilisation with percutaneous K wires following which the Plaintiff's right arm was encased in a plaster of Paris cast in which it was retained for some six weeks. The Plaintiff said that, during that period, his right arm was sore and awkward. Following removal of the plaster of Paris cast, the Plaintiff found that his right arm was very weak; so much so that he required fifteen sessions of physiotherapy treatment which, in itself, was a painful experience and it was some ten weeks before he was able to return to work. However, the Plaintiff conceded that, following physiotherapy, he made a very good recovery from his injury and did not require and further treatment. Moreover, he regained full use of his right arm and, in particular, was able to resume playing the game of hurling. He did, however complain of pain in cold weather and pointed to the fact that he has been left with three small scars on the dorsum of his right wrist where the K pins had been inserted. However, these scars are not very obvious, they are certainly not disfiguring and I gather from the Plaintiff that they do not cause any discomfort. For his part, Mr. O'Riordan agrees that the Plaintiff has made a good recovery and that it is unlikely that he will develop premature arthritic changes as a result of his injury. However, he notes that the extension of the Plaintiff's right wrist is limited by some ten degrees and that this restriction of movement is unlikely to improve although he does not think that it will restrict the Plaintiff's activities. Moreover, it is Mr. O'Riordan's view that the sensitivity in cold weather which the Plaintiff presently experiences is likely to diminish with the passage time. In those circumstances, I think that, for pain and suffering to date, the Plaintiff would be adequately compensated with an award of £15,000.00 and, insofar as the future is concerned, given that the only residual problem which the Plaintiff is likely to experience as a result of his injury is some discomfort during cold weather which will diminish with the passage of time; and that the residual scarring and restriction of movement of his right wrist is of no significance, it seems to me an appropriate award of general damages for the future would be £3,500.00. Accordingly, as I understand that the Plaintiff was paid his wages during the period of his absence from work and that any other expenses incurred by him as a result of his injury have been discharged, I will assess damages in this case in the sum of £18,500.00.

5. In the light of the foregoing and, in particular, having regard to my views on liability, there will be Judgment for the Plaintiff in the sum of £9,250.00.