Everitt v Thorsman Ireland Ltd

• Jurisdiction: Ireland
• Judge: Kearns J
• Judgment Date: 23 June 1999
• Neutral Citation: [1999] IEHC 7
• Court: High Court
• Docket Number: [No. 1996/10517P],No.1996 10517p
• Date: 23 June 1999

[1999] IEHC 7

THE HIGH COURT

No.1996 10517p

EVERITT v. THORSMAN IRELAND LTD. & ORS

BETWEEN

DENIS EVERITT

PLAINTIFF

AND

THORSMAN IRELAND LIMITED JUMBO BINS AND SLUDGE DISPOSAL LIMITED AND NUMAC STEEL LIMITED

DEFENDANTS

Citations:

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 327

DOWLING V CIE UNREP SUPREME 1.3.1956

DAVIE V NEW MERTON BOARD MILLS LTD 1959 AC 604

BISSETT V HEITON & CO 1930 IR 17

BISSETT V HEITON & CO (NO 2) 1933 IR 242

CONNOLLY V DUNDALK URBAN DISTRICT COUNCIL UNREP SUPREME 18/11/1992 1992/10/3226

FACTORIES ACT 1955 S34(1)(a)

DOHERTY V BOWATERS IRISH WOOL BOARD LTD 1968 IR 277

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 REG 19

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 ART 20

SAFETY HEALTH & WELFARE AT WORK (GENERAL APPLICATION) REGS 1993 SI 44/1993 SCHED 5 REQUIREMENT 7

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S3(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(1)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(2)

STATUTE OF LIMITATIONS (AMDT) ACT 1991 S2(3)

REDDY V BATES 1983 IR 141

Synopsis

Negligence

Personal injury; negligence; employer's liability; supplier's liability; health and safety; damages; injury in the workplace due to latent defect in plant; whether first named defendant is liable where a tool supplied by the second named defendant contains a latent defect which results in an injury to the employee; whether first named defendant was on notice of latent defect; whether first named defendant took reasonable steps to provide safe plant under its common law duty; whether the first named defendant is in breach of regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (S.I. 44 of 1993); whether the claim against the second defendant was statute barred; whether plaintiff had actual or constructive knowledge that the second named defendant was the supplier of the defective plant from the time of the accident; whether the first named defendant is entitled to indemnities from the second named defendant to the extent of 100%.

Held: First named defendant was in breach of his statutory duty; damages awarded; second named defendant was liable to indemnify first named defendant to the extent of 100%.

Everitt v. Thorsman Ireland Limited - High Court: Kearns J. - 23/06/1999 - [2000] 1 IR 256

While the question at issue was whether the plaintiff's actual or constructive knowledge ran from the date of the accident or from some other date, the plaintiff had no actual knowledge that a defective lever he was using to open a bin in the course of his employment came from the second defendant until that party was joined as a defendant in the proceedings in November 1996. While the question then was whether the plaintiff should have considered the potential liability of a supplier at some earlier time and taken steps to join such a party as a co-defendant in the proceedings. He was entitled to think that when a piece of equipment supplied to him by his employer failed in the course of his work that he need look no further than to his employer for redress. The plaintiff was to be fixed with knowledge that a technical expert could only acquire as and from 6 February 1996 when the defective lever was examined by the plaintiff's engineer. Given that there was no prior indication that the lever would snap as it did on the morning of the accident, thereby injuring the plaintiff, the second defendants were negligent as either producers or suppliers and the court so determined. The Plaintiff's employer, the first defendant was in breach of statutory duty. The High Court so held in granting the relief claimed.

1 Kearns J delivered on the 23rd day of June 1999

2 The Plaintiff who is from Drogheda was born on the 3rd of October 1947 and until June 1993 was employed as a general assistant by the first named Defendants who make plastic fixings for the building industry. At the time of his accident on the 24th of June 1993 the Plaintiff had been in the employment of the first named Defendants for some seventeen years.

3 On the morning of his accident the Plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose when the lever snapped and broke, causing the Plaintiff to fall backwards onto the ground thereby sustaining an injury in respect of which these proceedings are brought.

4 The evidence establishes that the bin and lever with which he was working on the day of his accident had been supplied to his employers some months previously by the second named Defendants to whom the first named Defendants wrote a letter on the 25th of June 1993 advising them of the fact of the accident and indicating that Messrs. Thorsman were accepting no liability for what had occurred. A follow up letter on the 24th of August 1993 sought full indemnity from Jumbo Bins on the basis that the accident had occurred while one of their employees was operating a jumbo bin, which had remained the property of the second named Defendant.

5 Two years passed before Jumbo Bins sought to involve the third named Defendants in the proceedings, proceedings to which they were eventually joined on the 16th of June 1997, on the basis that they in turn had supplied the jumbo bin and lever to the second named Defendants.

6 The case was heard in Dundalk, but because of a number of issues which arose during the course of the evidence I decided to take submissions in Dublin which I duly did on Monday the 14th June 1999.

7 Prior to receiving such submissions, I indicated to the parties that I was making the following preliminary findings of fact and that all or any submissions should take such findings into account:-

8 a A. The lever snapped or broke in the pipe section thereof near but not at the joint with the spanner;

9 b B. The break was caused by the inadequate strength of the material and because the diameter of the tube used was too small;

10 c C. The relevant defect was not patent, apparent or discoverable on reasonable examination;

11 d D. The first named Defendants obtained the lever in question from the second named Defendants;

12 e E. The second named Defendants did not obtain the said lever from the third named Defendants.

13 Dealing with the last point first, I am quite satisfied, having reviewed my notes of the trial and having read the entire transcript thereof, that the evidence of Mr. Maguire of Numac was preferable on this issue to that given to the Court by Mr. McArdle.

14 Mr. Maguire produced to the Court a lever of the type usually made up by his company at the relevant time. It was not only different in the sense of being painted bright yellow, but had numerous features quite different from the lever involved in the accident, including an angled piece at the spanner end, a loop or a hood to stop the lever slipping in on the pin of the bin and a tail which goes down inside the tube for about three inches. The actual plate at the end is oval rather than hexagon in shape and the material used was steel strap which is flat. In short, the lever produced by Numac differs in virtually every significant respect from that involved in the accident.

15 The second named Defendants were not able to produce any clear records which would establish to any degree of likelihood that the particular lever was supplied to them by the third named Defendant. Indeed, the lapse of time which occurred before any suggested involvement of Numac arose is a matter of some significance in this case. For all these reasons, I dismissed Numac from the proceedings, awarding them costs to be recoverable from the second named Defendant. In this regard I do not regard the joinder of Numac as a co-defendant by the Plaintiff's Solicitors as anything more than a ritualistic step taken in a situation where the second named Defendants were the relevant moving parties in joining Numac in the first instance.

16 On the supply side of the case, I see nothing that breaks the chain of connection thereafter as between the second named Defendants and the first named Defendants. Any suggestion that the first named Defendants themselves made up this implement is entirely unsupported by any evidence and in my view is not a proposition which was open to be made in the light of the evidence in the case.

17 I employed the term "relevant" defect which caused this accident, because there was evidence in the case that there was another feature associated with the particular lever, namely, that it used from time to time slip off the pin to which it had been applied. This obviously arose because the opening in the head or spanner of the lever was too large or, alternatively, ill-fitting to the pin in question. It is suggested that this characteristic should have put the first named Defendants on notice that there was a problem with this particular implement and that having such notice they should have undertaken further evaluation of the lever from a safety point of view, and that had they done so, the latent defect would have been discovered.

18 I cannot agree with this contention. To give a simple example, a newly purchased knife may not cut properly because the blade is blunt, but that can hardly put the owner or user on notice that the knife is about to break into two pieces. Things would be different if there was evidence that extra-ordinary force needed to be applied to the knife because of the bluntness which would cause it to break because there would then be a connection which would make the characteristic relevant to the accident which in fact occurred.

19 There is in the present case a complete absence of any such connecting factor. If, in the instant case, there had been evidence that gross and extra-ordinary force had to be applied to the lever to raise the bin lid by virtue of the "slipping off"...