Hetherington v Ultra Tyre Service Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy,FINLAY C.J.
• Judgment Date: 01 January 1993
• Neutral Citation: 1993 WJSC-SC 2095
• Docket Number: [S.C. No. 408 of 1988]
• Court: Supreme Court
• Date: 01 January 1993

1993 WJSC-SC 2095

THE SUPREME COURT

408/88

HETHERINGTON v. ULTRA TYRE SERVICE LTD

BETWEEN

JOHN HETHERINGTON

PLAINTIFF

AND

ULTRA TYRE SERVICE LTD. & ORS.

DEFENDANTS

Citations:

FACTORIES ACT 1955 S32(2)

SAFETY IN INDUSTRY ACT 1980 S17

Words & Phrases: machine

CF

Subject Headings:

EVIDENCE: quantum

NEGLIGENCE: employer

PRACTICE: procedure

1 Ruling of Mr. Justice McCarthydelivered the 12th day of March, 1991.

2 I agree with the judgment of the Chief Justice; in respect of the latter part of it I would like to express my own view that in any claim for damages for negligence, a trial Judge should ordinarily decline to make any finding on the issues of negligence unless and until all parties have been heard by way of evidence and submission on such issues. In the case of a single Defendant where there is an application for a non suit, the trial Judge should decline to rule on such an application until he has heard all the evidence that either party wishes to adduce. The party seeking the dismissal of an action should be put to his election as to whether or not he will call evidence.

3 JUDGMENT (EX TEMPORE) delivered on the 12th March 1991 by FINLAY C.J.

4 These are a number of appeals by different parties arising out of an action in which the Plaintiff sued three separate defendants in respect of an accident which occurred to him whilst he was employed by the first-named Defendant on the 9th April 1984. The happening of the accident is not in dispute.

5 The accident happened because the Plaintiff who worked in a tyre-removing and replacing business was in the process of completing the removal of two tyres on the back of a forklift truck, and the manner in which he was doing it was that on the particular tyre, which wasthe second of the two back tyres which he was operating on, that he had put a "bottle jack", as it is called, underneath a section of the forklift truck, making direct contact with the counterweight, as distinct from the frame of the truck. He had raised the truck with that jack prior to putting the jack underneath that portion of the forklift truck, and in order to create sufficient space to do so, he had had to reverse the forklift truck on a 3 inch plank and rest it on that so as to get the clearance in order to put in the bottle jack beneath it. As he was beginning to lower the wheel which had been newly tyred and put on, he observed that the plank on which it would rest when it came to the ground in order to leave sufficient clearance to get out the jack, that that had moved and was not on alignment, and he leant forward whilst on his hunkers to move that plank back into position with his foot, at the same time have his hand on the lever of the bottle jack. He lost his balance and though he did not intendto so, must have made a further lowering movement on the handle of the jack, and his fingers were then caught and very badly injured in a nip which existed on the separation caused by the jacking through the counterweight, between the counterweight and the frame of the forklift truck. The possibility for that nip to occur arose from the fact that a bolt the purpose of which was to secure the frame to the counterweight and which was a vertical bolt, had become loosened and out of itssocket.

6 The learned trial Judge found the first-named Defendants, the Plaintiff's employers, liable in common law negligence to the Plaintiff. He dismissed the action against the other two Defendants; he found the Plaintiff guilty of contributory negligence, and he apportioned the negligence as to 15 per cent on the Plaintiff and 85 per cent on the first-named Defendant. There had been claims and cross-claims for contribution and indemnity between all the three Defendants and thesedid not arise on his finding of a single, liable Defendant.

7 An appeal was made against damages by the first-named Defendant but was not pursued and we have no issue of damages before us.

8 I deal now with the various appeals as they came before the Court.

9 The learned trial Judge's finding against the first-named Defendant was to the effect that the system of work which they had designed and permitted of a bottle jack which in order, by reason of its size, in order to be put under the portion of the forklift truck, required the truck to be reversed up on a plank and then found itself operating on the counterweight, rather than on the frame of the truck, was an unsafe system of work and that it was the proximate cause of this man being in the position of attempting to rectify the position of the plank which was a major contributory cause to his hand coming into contact with the machine when he losthis balance...