Kingston v Irish Dunlop Ltd

• Jurisdiction: Ireland
• Judgment Date: 15 May 1969
• Date: 15 May 1969
• Docket Number: [1966. No. 2528 P.]
• Court: Supreme Court

Supreme Court

[1966. No. 2528 P.]

Kingston v. Irish Dunlop Ltd.

FINBARR KINGSTON

Plaintiff

and

IRISH DUNLOP COMPANY LIMITED

Defendants.

Contract - Breach - Remedy - Plaintiff claiming damages and a declaration of his rights - Damages not proved - Whether court should make declaratory order - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 19, r. 29 - Compromise of employee's action against employer - Term that employee be re-employed in special manner - Implied term - Employee ordered to perform different work - Rights of employee.

Appeal from the High Court.

The facts have been summarised in the head-note and appear in the judgment of Ó Dálaigh ó dálaigh C.J., post. The plaintiff appealed from an order made by O'Keeffe P. on the 11th July, 1968, which recited that the defendants were in breach of contract and that no damages had been proved, and which dismissed the plaintiff's action without awarding costs to either party. The order of the Supreme Court, which was made on foot of the judgments, post,declared the plaintiff to be "entitled to be employed by the defendants in the scrap section (to the car-cover line) at their factory and that while there is a scrap section and work is available there and the plaintiff is able to do the work then (subject to an implied term that the disability from which he suffered on resumption of employment continues) he has a right not to be changed from the said section"; and the order of the Supreme Court also directed the defendants to pay to the plaintiff his "costs of appeal and of the trial in the High Court."

The plaintiff, a workman employed by the defendants in their factory, suffered personal injuries as a result of an accident that happened in the course of his work; and his claim against the defendants on foot of those injuries was compromised upon terms. One of the terms stipulated that the plaintiff should be re-employed by the defendants in a particular section of their factory subject to the same terms and conditions as applied to his pre-accident employment. The defendants, having re-employed the plaintiff in accordance with the compromise, transferred the plaintiff to another section of their factory where the work was less suitable for the plaintiff. The defendants then dismissed the plaintiff from his employment. In these proceedings in the High Court the plaintiff claimed damages from the defendants for breach of contract and an order declaring the rights of the plaintiff under the compromise. The trial judge found that the defendants were in breach of the terms of the compromise but he also found that no damages had been proved; he dismissed the plaintiff's action and made no order in relation to costs. On appeal by the plaintiff, upon the issues of a declaration and costs, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.), in allowing the appeal, 1, that pursuant to the compromise the plaintiff was entitled, so long as his disability continued, to be employed by the defendants in the scrap section of their factory while they were willing to maintain the plaintiff in their employment, and while they had a scrap section in which employment was available; and that the plaintiff was entitled to an order declaring his said rights.

Guaranty Trust Company of New York v. Hannay & Co. [1915] 2 K.B. 536considered.

2. That the plaintiff should be awarded his costs of the appeal and his costs of the trial in the High Court.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

On the 25th July, 1962, the plaintiff, who is a factory worker, suffered injury while in the course of his employment with defendant company and he brought an action for negligence against the defendants in the High Court in respect of that injury. The action was settled on the terms set forth in a written consent dated the 23rd July, 1965. There was provision in clause 1 for payment to the plaintiff by the defendants of a sum of money in full satisfaction of the claim; in clause 3 there was an undertaking by the defendants to pay to the solicitors for the plaintiff the costs of the proceedings; the consent, it was agreed in clause 4, should be received and made a rule of court. The remaining clause is clause 2 which deals with the re-employment of the plaintiff by the defendants and is the origin of these proceedings. Clause 2 reads:—"The plaintiff shall be employed by the defendants in the scrap section to the car-cover line at the defendants' factory at the rate of £17 15s. 9d. per forty-hour week, subject to the same terms and conditions as applied to his employment with defendants hitherto."

The plaintiff's accident had resulted in a prolapsed intervertebral disc. He made a good recovery up to a point and was suitable for many forms of work, provided he was not required to bend or to lift objects. The defendants offered him the choice of work in four sections of their factory, and he chose the scrap section apparently

because the work there involved neither bending nor lifting. This choice was incorporated in clause 2 of the consent. The plaintiff began work in the scrap section of the defendants' factory in August, 1965, and he worked there until January, 1966. He was then transferred to what is called the pocket-making section. He complained to his solicitors of this change and they, on his behalf, wrote to the defendants' solicitors on the 25th March, 1966, in the following terms:—"Mr. Kingston called on us to-day and instructed us that he has been taken off the scrap section to the car-cover line in your clients' factory, and he has been placed at a job pocket-making. This work is much too strenuous for him and is having a tremendously detrimental effect on his back. He has complained to the personnel manager, Mr. O'Gorman, but Mr. O'Gorman's retort to him was that he could see no reason why our client would not do the job. As you know, the consent which was entered into in this case provided for the section in which our client was to work, and indeed since the case our client has been moved around to several different jobs, and in an effort to be co-operative he has always done his best, and...