Bolger v Brennan and Harding

• Jurisdiction: Ireland
• Judgment Date: 01 January 1957
• Date: 01 January 1957
• Court: High Court

Bolger

and

Brennan and Harding

Rules of Supreme Court (Ireland) 1905, Or. XVI, rr. 48, 55 - Indemnity - Co-defendants - Apportionment sought under s. 4, sub-s. 1, of the Tortfeasors Act, 1951 - Whether third party procedure available to defendant seeking such apportionment.

The plaintiff, a labourer employed solely by the defendant, B., was injured while doing work for B., on a scaffolding erected by the defendant, H. (a building contractor employed by B.) on B.'s behalf, which proved defective. The plaintiff sued both B. and H.for damages for negligence. In pursuance of Or. XVI, r. 55, of the Rules of the Supreme Court (Ireland), 1905, H. served B., with a third party notice under Or. XVI, r. 48, of those rules, on the ground that H. was bound, by virtue of an implied term of his contract with B., to indemnify B. against any claim the plaintiff could establish, or alternatively on the ground that the Court, in apportioning such damages as might be awarded to the plaintiff amongst B. and H. pursuant to s. 4, sub-s. 1, of the Tortfeasors Act, 1951, must "so apportion the damages as to confer an indemnity" on B.Held that in order to bring a case within the scope of the third party procedure in Or. XVI, rr. 48 to 55, of the Rules of the Supreme Court (Ireland), 1905, it is not enough that, if the plaintiff succeeds, the defendant will have a claim for damages against the third party (or, if the third party be a co-defendant, that the defendant will be entitled to have the damage apportioned between himself...