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1. The Plaintiff at the time of the accident was working as a general operative in the ESB. He had been employed as such as such for over 17 years prior to the date of the accident. On Monday 27th February, 1995 the Plaintiff and another general operative were working at the ESB’s 38KV station in Roscommon. The person in charge of work was Mr Paschal Macken an electrician.

2. The Plaintiff’s duties involved cleaning a house transformer in the station with a wire brush with a view to painting it later. This transformer was enclosed in a cubicle made of wire grill. In the morning the transformer had been taken out of commission prior to the commencement of work on it. At lunch time the house transformer had been put back into commission and was energised with electricity. Shortly after 2 o’clock, following his lunch break the Plaintiff returned to the transformer, unbolted the mesh grill and suffered very serious burns and shock when he came into contact with the live transformer. He was fortunate to survive the accident, and is left with very nasty scarring as described in the medical reports. He also suffered from post traumatic stress disorder and from depression.

3. There is a serious conflict in evidence on a number of vital matters in this case. The Plaintiff’s case is 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 says that at that time he had gone to a hut to get some paint to have it ready for the afternoon and that Mr Macken, who was in charge, and Mr Westman, the general operative stayed back in the cubicle. The Plaintiff says they came in around 1 o’clock for their tea. He maintained that he did not see what was done at the cubicle nor did he see the connection being made or the earths being taken off. He was in the hut at the time. The Plaintiff’s evidence was to the effect that he came out of the hut with Mr Macken and he said to Mr Macken “I’ll take you out of bad humour, Packie, I’ll go and do the painting now.” This was an indication that he was going back to work and Mr Macken did not prevent him from so doing, notwithstanding the fact that the transformer was live.

4. Mr Macken said however, that at about 1 o’clock he told both the Plaintiff and Mr Westman to clear the cubicle and that he was going to put the house transformer back into commission. He saw Mr Hogan leave the cubicle. Moreover, he saw Mr Hogan in the process of bolting back the screen. Mr Hogan seemed to be struggling with the screen and Mr Macken asked “are you okay?”. Mr Macken also denied that he left the hut with the Plaintiff and denied that the Plaintiff told him that he was going down to paint the transformer.

5. The account given by Mr Macken is substantially corroborated in its essentials by the evidence of Mr Westman. He had no doubt that the Plaintiff was present when Mr Macken said that he was going to put the transformer back into service. Moreover, 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 left the hut at about the same time as the Plaintiff, he then returned to get warmer clothing.

6. Mr Macken gave evidence that after coming upon the appalling scene of the accident that the Plaintiff was conscious and said to him twice, “sorry Packie, I just forgot”. The Plaintiff has no recollection of such conversation. Mr Relihan the surgeon says that one should be cautious in placing reliance on what a person says when they are in severe shock.

7. Angela Dobson, sister of the Plaintiff said that she had a conversation in the hospital with Mr Macken and she said “whatever happened?”, and he said “I am so sorry Angela” , either “ I didn’t know the power was on ”, or “ he didn’t know the power was on”. She cannot be sure which was said. Mr Macken says he may have spoken but he did not have any conversation about who was at fault or that type of thing.

8. While I find Mr Macken to be a truthful conscientious witness I believe he is wrong in this respect, and that a conversation did take place between himself and Angela Dobson. However, in my view, the conversation was more likely to be that he, the Plaintiff, did not know the power was on, rather than that Mr Macken did not know that the power was on. In my view, it is extremely unlikely that Mr Macken would have told Mrs Dobson that he, Mr Macken, did not know that the power was on since the factual position was manifestly otherwise.

9. There is no animosity between Mr Macken and the Plaintiff. In fact they are friends. No reason has been suggested why Mr Macken should be inventing his account. It is not likely to be a mistaken recollection. In my view the evidence of Mr Macken and Mr Westman is more likely to be correct than the evidence of Mr Hogan. I therefore, accept the account of the accident given by them rather than the account given by the Plaintiff

10. Mr. Tennyson, the engineer for the Plaintiff, made a number of criticisms of the Defendant’s system of work. They are as follows:

11. Earlier at page 6 of the book “declared off” is defined as:

12. The Plaintiff puts great stress on the formality of this procedure. The Plaintiff maintains that this procedure was not carried out with sufficient formality, and that it was not carried out in full because the Plaintiff was not specifically instructed to remain clear. The Defendants maintain that the ‘declaring-off’ procedure was not necessary at the time because the work was not completed. Furthermore they say that since the accident did not take place at that time that another safety rule applies. In particular they maintain that the Plaintiff is in breach of rule 6.1.3 which says:

13. In my view, 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-energising the transformer in the cubicle. The above rule contemplates the situations where the apparatus is being re-energised. I accept that the procedure takes place before the removal of the earth wires and that the order to clear the cubicles was part of the declaring off procedure. The Defendants were in default, however, in not fully complying with that procedure. Although the Plaintiff was told to clear the cubicle he was not specifically told to remain clear of the installation. In my view, it is likely that such failure contributed, albeit to a relatively small extent, to the accident which took place, particulary 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.

14. It is alleged that the Defendant was in breach of the provisions of Section 52(1) the Safety Health and Welfare at Work (General Application) Regulations, 1993. S.I. No. 44 of 1993. Section 52(1) reads as follows:-

15. While Section 52 of the Regulations is primarily directed at outside persons gaining access to equipment, there is nothing in the wording of the section to indicate that it is confined to such people. There is no doubt at the time in question that the Plaintiff was not authorised to go into the cubicle, in fact he was expressly forbidden to do so by Rule 6.1.3 of the Safety Rules which states as follows:-

16. The transformer was not adequately protected as all that was necessary for the Plaintiff to do was to open the bolt which was only hand tightened. The Plaintiff therefore prima facie comes within the ambit of Section 52. However, in this case the breach of Section 52 of the Regulations was caused by the act or default of the Plaintiff himself whose job it was to tighten the bolts on the screen. The Plaintiff cannot take advantage of his own negligence to attach liability to the Defendant.

17. This accident occurred largley through the Plaintiff’s own fault. He was told that the house transformer was being re-energised. He bolted the screen in the context of that transaction. Unfortunately he forgot about it. He was responsible for tightening the bolt and failed to do so properly. He was prohibited by Rule 6 from recommencing his work after lunch without being specifically told to do so. He failed to comply with this requirement. He failed to advert to the significance of the screen (albeit not fully tightened) and he failed to appreciate the significance of the earths not being connected and the disconnection bars being in the live position - even though these matter were apparent. Because of the foregoing, the Plaintiff must bear most of the responsibility for the unfortunate accident.

18. However, because of the failure to comply fully with the declaring off procedure, the Defendant must bear some share of liability for the accident, which I would assess as being fifteen percent. The Plaintiff is, accordingly, eighty-five percent at fault.

19. Following the accident the Plaintiff was brought in a shocked but conscious state to Roscommon County Hospital. He had very severe burns to his back, both arms and legs. He was detained in Roscommon County Hospital from the 27th day of February 1995 until the 16th day of March 1995 and he was then transferred to St. James’s Hospital, Dublin where he was an in-patient until the 27th day of March 1995. He had skin grafts on his back, both arms and on his right leg. On the 6th day of April 1995 he was still having his dressings changed three times a week. On the 12th day of April 1995 he had extensive itchiness. He was reviewed on the 20th day of June, the 18th day of July, the 14th day of August, 29th day of September and the 10th day of October 1995 during which period recovery continued and on the 10th day of October 1995 he was given a certificate to allow him to return for work.

20. He was seen by a doctor on behalf of the Defendants on the 31st day of May 1996 and was suspended from work on full pay for a year and afterwards suspended without pay. Following his suspension his mental health began to deteriorate and he suffered from insomnia, irritability and depression. Doctor Brennan saw him on the 20th day of December 1996, the 5th day of April 1997, the 21st day of November 1997, the 10th day of March 1998, the 24th day of September 1998 and the 5th day of June 1999 and on all those visits found him to be suffering from depression.

21. The scarring has been described in the various medical reports. On the 15th day of June 1995, Mr. McHugh found:-

22. The only area for the skin graft was on the back of the right thigh stretching from his buttock to his knee and covering half the circumference of this thigh. This was red and raw as of the 14th day of June 1995, but has healed very well since then. He had a scar on the outside of his right leg, half way down, measuring four inches by four inches. He had an area of scarring inside of the right arm measuring two inches by one inch and he had a small area of scarring outside of his right forearm measuring two inches by one inch. On inspection, the scars, particularly on the back and the left arm, are very unsightly indeed.

23. After his return from hospital to his parents, the Plaintiff could not sleep at all and he got constant flashbacks to the accident and could hear the bang and revisualise the scene. It is fair to say that these flashbacks have diminished in frequency. As of the 23rd day of June 1995, his sleep pattern was still badly disturbed. He suffered from occasional depressive episodes and was conscious of the scars on his body. He was diagnosed as suffering from Post Traumatic Stress Disorder of severe degree and was also diagnosed as having some symptoms of depression. There was a report on the 19th day of December 1996 which assessed him as being depressed. His sleep was disturbed and he had little energy or motivation. The problems of a psychological nature were ongoing.

24. In short, Mr. Hogan, following the accident, developed symptoms of a psychological nature including depression, exacerbation of alcoholism and post traumatic stress disorder symptoms; these symptoms have now settled down to some extent and his psychiatrist considers that they should further improve. He still has flash backs to the accident and some disturbance of his sleep pattern.

25. The Plaintiff suffered terribly in this horrific accident. He continues to suffer. While the prognosis is relatively good, the Plaintiff is left with permanent unsightly scarring.

26. In my view the proper compensation on the basis of full liability would be £70,000 for pain and suffering to date and £20,000 for pain and suffering in the future, and accordingly the Plaintiff is entitled to fifteen percent of that sum. In addition, the Plaintiff is entitled to fifteen per cent of the special damages. In my view, the suspension from work of the Plaintiff was not caused by or contributed to by the accident, but to a long standing and pre-existing problem in respect of which the Plaintiff had been repeatedly warned. In those circumstances the Plaintiff’s special damages amount to £4,325.75. The Plaintiff is entitled therefore to fifteen per cent of £94,326.00 which is a sum of £14,148.00.