THE HIGH COURT
		1991 1827p
BETWEEN
JOHN McDONAGH
		PLAINTIFF
AND
BRIAN O'CONNELL LIMITED, THE CORPORATION OF LIMERICK AND SHANNON FREE AIRPORT DEVELOPMENT COMPANY 
		DEFENDANTS
Judgment delivered the 24th day of October, 1996 by Barr J.

	The plaintiff is now twenty-eight years of age; a married man with two children.  On 16th July, 1990 he was engaged in archaeological excavation at King John's Castle, Limerick city when he fell into a trench and sustained personal injuries.  He brought proceedings in negligence in this Court originally against his employer, Brian O'Connell Limited (the contractor).  They in turn moved to join the Corporation of Limerick (the Corporation) as third party and the plaintiff then joined the latter as co-defendant.  Later, in course of discovery of documents, the plaintiff's solicitors learned that Shannon Free Airport Development Company (Shannon), subsequently joined as third defendant, had a contract with the contractor for maintenance and development work at King John's Castle which included a requirement that the contractor would provide workmen to assist the Corporation's archaeologists at the site and would also provide other facilities such as tools, machinery and shuttering as might be required by the archaeologists from time to time.  The plaintiff was one of the men provided by the contractor to assist in the archaeological work.  There were two senior archaeologists engaged on the site at all material times - Ms. Celie O'Rahilly and Mr. Kenneth Wiggins.
	King John's Castle is a building of great antiquity and historical importance.  It was decided by the Corporation that a major archaeological investigation should be carried out simultaneously with the restoration and building work which the contractors were to perform for Shannon.  An extensive dig commenced at the site under the direction of Ms. O'Rahilly and Mr. Wiggins.  I am satisfied that the evidence establishes beyond controversy that the men, including the plaintiff, who were supplied by the contractor to the archaeologists thereupon came under the exclusive direction and control of the latter as to where they were to work; what they were to do and how they were to do it.  In practical terms the only  regular function left to the contractor was to pay his men in accordance with attendance records kept by the archaeologists.  It is accepted by Ms. O'Rahilly that the contractor's site agent, Mr. Peter Murphy, did not participate in any way in the direction or instruction of the contractor's men regarding the work they were doing for the archaeologists or as to any aspect of the work such as possible safety precautions which should be adopted.  Archaeological excavation is a specialised activity which requires its own particular expertise.  There is no evidence that Mr. Murphy had any knowledge or experience in that area.  It appears that he would have had no justification, far less obligation, to interfere in the conduct of the archaeological work on which the contractor's men were engaged.  The only possible circumstance which might have created a duty for Mr. Murphy on behalf of the contractor to intervene in the interest of the safety of his men, would be if he had learned that the place and/or system of work in which they were obliged to participate was dangerous and involved an unreasonable risk of injury to the men in the absence of appropriate precautions.  In short, I would accept that Mr. Murphy, on behalf of the contractor, owed a duty to the workmen on loan to the Corporation not to stand idly by but to intervene in such circumstances on their behalf.  However, such a duty did not encompass an obligation to investigate and to assess in detail in the context of worker safety, the scheme of work which the archaeologists had put in train.  The latter, being senior experienced experts in that area, having taken on the mantel of direction and control of the workers on loan to the Corporation, the obligation of devising and operating a safe scheme of work on behalf of the Corporation and of complying with relevant statutory requirements regarding worker safety devolved on them.  The contractor ceased to have any legal obligation as to the safety of the workmen on loan when direction and control of them passed to the archaeologists on behalf of the Corporation, subject only to the exceptional circumstance to which I have referred.  In ordinary course, the determining factor in deciding whether or not the original employer is liable in negligence to a worker he has loaned to another, in connection with injuries sustained in course of such work, turns upon the direction and control of the worker at the material time. 	I am not satisfied that the scheme of work devised and operated by the archaeologists was so obviously defective in the context of worker safety that Mr. Murphy, if he thought about it at all, ought to have appreciated that he had put the contractor's workers in an unreasonable situation of avoidable danger.  
	The plaintiff has failed to establish in evidence any negligence against the contractor regarding the system of work on which he was engaged at the time of the accident or as to the safety of the place where such work was performed.  There also was no evidence that the contractor had failed to supply shuttering, props or any device for shoring-up trenches which formed part of the archaeological excavation process.  They were obliged under their building contract with Shannon to supply such equipment if called upon to do so by or on behalf of the archaeologists; but the evidence indicates that no such request was made.
	The plaintiff's remaining claim in negligence is against the Corporation, which was his defacto employer at the material time.  It owed him a duty at common law  to devise and operate a safe system of work; to provide him with a safe working place and to take reasonable care for his safety.
	The facts surrounding the accident are not in significant dispute.  A trench with vertical sides had been dug by machine for the archaeologists.  It was about 3 feet wide and 8 feet deep at the end nearest a boundary wall of the castle.  It is shown in its original state in the Corporation's photo No. 5.  The depth became shallower as one moves away from the boundary wall.  I accept Ms. O'Rahilly's evidence that on the date of accident (16th July, 1990) ground at the western side of the trench had been reduced to 1.2 metres (approximately 3 feet, 8 inches) from the bottom of the trench.  The eastern side had been lowered also but to a lessor extent.  In that regard, I accept the plaintiff's evidence that the top of it was about shoulder height for him as he stood on the opposite bank at the place where the accident happened.  He is 6 ft., 2 ins. tall.  His task was to continue lowering the western bank by digging it away with a shovel.  The spoil was removed by Mr. O'Connor, a fellow worker, in a wheelbarrow to another part of the site.  The vertical sides of the trench were not shuttered and no steps had been taken to protect the edges from collapse.  The area was not covered in and was fully exposed to the weather.
	The plaintiff had instructions from the archaeologists that if he found any artefacts while digging, he should extract and preserve them.  In that regard a labelled bucket or basin was provided for such pieces; but in the early morning it happened occasionally that no such receptacle was available because artefacts from the previous day's work had not been removed.  The accident happened at about 8.30 a.m. and the plaintiff had not yet been issued with a labelled container at that time.  In the course of digging he found a piece of pottery.  He reached across the trench and placed it on the top of the bank on the eastern side for temporary safe-keeping.  He then had second thoughts and feared that he might forget the artefact if he left it on the east bank.  He reached out for it while standing on the western bank at its edge.  Part of the bank collapsed and he fell into the trench hitting his back on a rock or the side of the trench as he fell.
	I am satisfied that what the plaintiff was doing at the material time, i.e., attempting to retrieve the artefact, was reasonably foreseeable in all the circumstances.  In that premise, had the Corporation a duty in the interest of the plaintiff's safety to shore-up or otherwise protect the side of the trench on which he was working so as to obviate the risk of collapse?  I am satisfied that the Corporation knew or ought to have known that the plaintiff's work was likely to take him close to the edge of the bank and that in its vertical, unprotected state it was liable to collapse if he stood close to its edge.  This risk was exacerbated by the plaintiff leaning over from one bank to the other across the trench.  Furthermore, I accept the plaintiff's evidence that prior to the accident, he had reported two similar incidents in which he was involved but which had not caused physical injury.  These episodes put the Corporation on notice in terms of the risk that unprotected vertical banks were liable to collapse if workers stood or walked on or near the edges.  The evidence of the plaintiff's engineer, Mr. Thomas Hayes, which was not challenged, indicates that the risk of collapse is substantial and could be obviated in either of two ways.  First, by securing appropriate horizontal shuttering along the walls of the trench.  Alternatively, by digging the trench in such a way that its sides were not vertical but sloped outwards in an approximate V-shape.  Mr. Hayes stated in evidence that that is the method normally adopted by local authorities and public utilities which have occasion to dig such trenches for pipe-laying and other such purposes.  The latter alternative would seem to be the simplest and most convenient.  I am satisfied that in the interest of avoiding or limiting the risk of subsidence of the bank, the Corporation's archaeologists ought to have adopted one or other of the foregoing methods.  The Corporation was negligent and in breach of duty to the plaintiff in failing to do so.
	The remaining issue on liability is that of the plaintiff's contributory negligence.  He had a duty to the Corporation to take reasonable care for his own safety.  Was he in breach of that duty?  I have already referred to his evidence that on two earlier occasions, he had fallen into trenches in the course of his work for the Corporation in circumstances similar to that which happened on 16th July, 1990.  Although he had not been injured on those occasions, he reported each incident to the Corporation's representative on site.  It is evident that the plaintiff knew or ought to have appreciated that working at or close to the edges of vertical trenches was dangerous in that there was a significant risk of collapse.  In that knowledge he stood at the edge of such a trench and added to the risk of collapse by leaning across it to pick up an object from the top of the opposite bank.  However, much the greater blame rests with the Corporation in failing to provide the plaintiff with a safe place of work and in not devising and operating a safe system of work in relation to the archaeological activities which were in progress at the site.  I apportion degrees of fault 75%-25% against the Corporation.

	DAMAGES
	In consequence of his fall, the plaintiff suffered a substantial injury to his lower spine.  Mr. Cantillon, his surgeon, diagnosed it as a severe hyperextension injury which ruptured the anterior ligaments of the spine thus giving rise to muscle spasm and great pain.  He did not respond to treatment and after three months was detained in hospital for two weeks.  His progress was slow and he remained totally unfit for work.  This in turn brought on a severe depression which caused a protracted period of misery for the plaintiff, which at one time threatened his marriage and brought him to the brink of suicide.  He consulted a psychiatrist, Dr. Doyle, and eventually responded to treatment which was greatly assisted by his return to work in November, 1994.  The plaintiff has been in employment since then as a janitor in a factory doing mainly light work.  Apart from two episodes of severe muscle spasm which prevented him from working for about two weeks on each occasion, he has been able to continue in employment.  He is obliged to avoid heavy work both at home and on the job.  He is also unable to play football or hurling, which he enjoyed prior to the accident.  Mr. Thomas Burke, orthopaedic surgeon, concluded his last reported dated 12th June, 1996 (i.e. almost six years after the accident) as follows:-

	"I feel it is likely that he will have a few more episodes of acute exacerbation of his low back pain with spasm as this appears to be his pattern.  Hopefully, however, the episodes will become briefer and more greatly separated by time as the years go by.  I would not expect any arthritis to occur as a specific consequence of this injury."

It appears that substantial hyperextension back injury is difficult to predict and symptoms may linger for a number of years.  It seems that there is some risk, though small, that the plaintiff will never be fit for a full range of heavy manual work.  It follows, therefore, that the spectrum of his employment prospects may be curtailed.
	Special damages have been agreed at 	£20,500.00  
I assess general damages as follows:-
	Pain, suffering and psychiatric distress to date	£20,000.00
	Pain, suffering, disablement and possible 
	diminution in employability in the future	£25,000.00
	Total	£65,500.00
	Accordingly, the plaintiff is entitled to net damages of £49,125.00