Ennis v Bailieboro Co-Operative Agricultural Soc

• Jurisdiction: Ireland
• Judge: MR JUSTICE KEVIN LYNCH
• Judgment Date: 11 May 1990
• Neutral Citation: 1990 WJSC-HC 573
• Date: 11 May 1990
• Court: High Court

1990 WJSC-HC 573

THE HIGH COURT

No.7999/1987

ENNIS v. BAILIEBORO CO-OPERATIVE AGRICULTURAL SOC

BETWEEN

DENIS ENNIS

Plaintiff

AND

BAILIEBORO CO-OPERATIVE AGRICULTURAL SOCIETY LIMITED

Defendant

Synopsis:

CONTRACT

Terms

Breach - Milk - Collection - Delivery - Plaintiff collector - Delivery to defendant creamery - Milk tanker hired from defendants - Contract terminated by defendants - Tanker retained by plaintiff - Termination of hire attracted damages subject to return of tanker - (1987/7999 P - Lynch J. - 11/5/90)

|Ennis v. Bailieboro Co-Operative Agricultural Society|

TRANSCRIPT OF JUDGMENT

1 DELIVERED BY THE HONOURABLE MR JUSTICE KEVIN LYNCH ON 11TH MAY 1990

APPEARANCES

For the Plaintiff:

Peter Charleton, BL

Instructed by

McCartan Hogan

For the Defendant:

Peter Shanley, SC

Ian Finlay, BL

Instructed by

G V Maloney & Co.

2 This is a claim for damages for breach of contract as between the Plaintiff and the Defendants and also for wrongful inducement of breach of contract by the Defendants, contracts as between the Plaintiff and certain farmers. The claim is analogous to claims for damages for wrongful dismissal from employment. There is also a counterclaim for the return of a milk tanker and for damages for the value of milk spilled by the Plaintiff and also for miscellaneous smaller items.

3 The facts are that the Plaintiff was a carter of milk from about the year 1978. By agreement with various dairy farmers the Plaintiff would collect their milk and convey it to the Defendants” creamery. The system of payment was that the Plaintiff would be paid on the gallonage carted by him to the creamery and payment would be made directly to the Plaintiff by the Defendants after deducting the cost per gallon from the cheque due to the dairy farmers. In addition the Defendants would also pay some bonuses to carters for satisfactory delivery.

4 For some time before July 1987 the Plaintiff was incurring large expenses for breakdowns, substitute drivers and miscellaneous items of one sort or another and all these matters had to be arranged for the Plaintiff by the Defendants. This involved the Defendants in extra work and accountancy and they were quite dissatisfied with the burden of this extra work being thrown upon them.

5 There had been in operation a group insurance scheme of which the Plaintiff was a member, and this scheme apparently ran from the end of May each year to the following May. In the year 1987 the Plaintiff did not renew his membership of this group insurance scheme when it expired at the end of May because at that time he did not have any vehicle and was not in fact carting milk. The position was that he had had to obtain a substitute milk carter, a Mr Lambe, in the middle of May 1987, or maybe early in May 1987, until about 24th July 1987. Accordingly, the Plaintiff did not have a vehicle to insure or to renew the insurance on at the end of May 1987.

6 In July 1987 the Plaintiff bought a replacement tractor unit and sought to return to his milk round, which was route 9041, and the Defendants agreed that he might do so. But on this occasion the Defendants insisted that they would deal with the Plaintiff at arm's length, that is to say, they required the Plaintiff himself to provide his own insurance, repairs, substitute drivers, diesel and any other miscellaneous matters that they had had to look after for the Plaintiff heretofore. Thus, in relation to the Plaintiff's milk round the Defendants wished merely to have to record the milk carted by him and to calculate the amount of money due to him and pay him at the end of each month without any complications.

7 The Plaintiff agreed to this system and signed for the hire of a milk tanker and recommenced carting milk to the creamery. Clause 9 of the tanker agreement provides:

"The Hirer accepts all responsibility for and agrees to indemnify the Owner against all actions, claims and demands arising out of the use of the Vehicle and he further agrees that he will at all times during the period of rental keep the Vehicle insured against third party claims and accidental damage and that he will, on request, provide to the Owner copies of such insurance policies and documents."

8 Clause 10 of the tanker agreement provides:

"The Owner reserves the right to cancel this agreement without notice to the Hirer and to retake possession of the Vehicle in any of the following circumstances:"

9 a) if the Hirer commits or allows any breach of his obligations under this agreement.

10 b) if any sum due to the Owner by the Hirer is unpaid for seven days after such sum has become payable.

11 c) if the Hirer commits any act of bankruptcy, or if any distress or execution is levied on any property of the Hirer.”

12 Following on the execution of that agreement and the Plaintiff's resumption of his milk round, the Defendants wanted to see the Plaintiff's insurance policy in order to ensure that it indemnified them directly. Strictly speaking, clause 9 of the agreement did not entitle them to such an indemnity but they were, of course, entitled to inspect the policy of insurance under clause 9. The Defendants must, however, be reasonable. The time limits set by the Defendants in this regard were, in my view, unreasonable. Whilst one can certainly get a certificate of insurance from a different company within a matter of hours or a day, the production of a new policy of insurance takes,...