McCann & Cummins v Brinks Allied Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Flaherty J.
• Judgment Date: 04 November 1996
• Neutral Citation: 1997 WJSC-SC 1372
• Docket Number: 246/247-95
• Date: 04 November 1996

1997 WJSC-SC 1372

THE SUPREME COURT

O'Flaherty J.,

Blayney J.,

Murphy J.,

246/247-95

MCCANN & CUMMINS v. BRINKS ALLIED LTD

AN CHUIRT UACHTARACH

BETWEEN/

SEAMUS McCANN

and

ROBERT CUMMINS

Plaintiffs

.v.

BRINKS ALLIED LIMITED

Defendant/Appellant

AND

ULSTER BANK LIMITED

Defendant/Respondent

Citations:

CIVIL LIABILITY ACT 1961 S21

PURTILL V ATHLONE UDC 1968 IR 205

MCNAMARA V ELECTRICITY SUPPLY BOARD (ESB) 1975 IR 1

SMITH V CIE 1991 1 IR 314

WALSH V SECURICOR (IRL) LTD 1993 2 IR 507

DONOGHUE V STEVENSON 1932 AC 567

O'HANLON V ELECTRICITY SUPPLY BOARD (ESB) 1969 IR 75

CROWLEY V AIB 1988 ILRM 225

CONOLE V REDBANK OYSTER CO 1976 IR 191

RYAN V IRELAND 1989 IR 177

Synopsis:

NEGLIGENCE

Duty of care - first defendant found liable in not providing a safe system of work - whether bank liable as concurrent wrongdoer - whether duty of care owed by bank to first defendant's employees - whether employer/employee relationship or contractual relation ship existed - Held: Appeal dismissed - no duty of care - (Supreme Court - O'Flaherty J., Blayney J., Murphy J. - 04/11/1996)

|McCann & Anor. v. Brinks Allied Ltd. & Ulster Bank Ltd.|

1 4th day of November, 1996 by O'Flaherty J. [NEM DISS]

2 The background facts to this appeal are as follows. The plaintiffs were employed as security men by Brinks Allied Limited ("Brinks"). On the 8th February, 1990, they were engaged in making a delivery of £100,000 in cash to the Rochestown Avenue, Dunlaoghaire, branch of the Ulster Bank Limited ("the bank") when they were set upon by raiders and assaulted.

3 The branch in question was a relatively modern purpose built bank set back from the public road with a paved or slabbed forecourt and a service road running up the side of the bank and around the rear of the building. Because bollards had been erected on the roadside of the slabbed forecourt and because the bank objected to the van driving over the slabs, which the bank said were not intended to support the weight of a van, it was necessary to park the van on the service road. This meant that the nearest point to the bank door from the van was 42 feet and, in the particular circumstances of the case - there was another vehicle intervening - the closest the van could get to the bank door was 47 feet. The plaintiffs ensured, in the first instance, that the bank staff were ready to receive them and that everything appeared to be in order in the vicinity; they then proceeded to carry the first delivery of cash to the bank and it was while they were traversing the distance to the door of the bank that they were set upon by two armed and masked men and were assaulted: one of the plaintiffs received quite serious injuries.

4 The amount of damages payable to each plaintiff was agreed between the parties.

5 There had been three previous robbery incidents at this branch. On 15th March, 1987, a robbery took place within the bank premises; on 8th June, 1987, there was an attempted robbery outside the bank and a similar attempted robbery on the 1st February, 1988. Brinks personnel were involved on these latter two occasions.

6 So it is clear that the risk that security people might be attacked and robbed in the vicinity of this bank was apparent both to Brinks and to the bank. It is clear, too, that the bank was requested by Brinks to provide a better and simpler access to the bank premises and, indeed, had been advised by an inspector in the garda siochana to provide better access. The improved access could have been provided by strengthening the forecourt and removing the bollards; or a chute could have been provided at the side of the bank which would have enabled the cash to have been transferred from the van to the bank without the Brinks employees having to carry it any distance.

7 The contract that governed the relationship between Brinks and the bank on the occasion in question had been entered into on the 4th August, 1988. This was a standard trading agreement which had been drawn up by Brinks. It contained the following clause:-

8 The Company (Brinks) reserves to itself absolute discretion as to the means, route and procedure to be followed in the storage, guarding and transportation of any goods to which this contract relates. Further, if in the opinion of the Company it is at any stage necessary or desirable in the Customer's interests to depart from any instructions given by the Customer as to such matters the Company shall be at liberty to do so.

9 In his judgment of the 12th May, 1995, Morris J. held that there was a failure on the part of Brinks to provide the plaintiffs with a safe system of work and to take all proper and reasonable precautions for their safety. He rested this part of his judgment on the basis that since this branch had already been...