Shinkwin v Quin-Con Ltd

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 21 November 2000
• Neutral Citation: [2000] IESC 27
• Court: Supreme Court
• Docket Number: [S.C. Nos. 122 & 152 of 1998]
• Date: 21 November 2000

SHINKWIN v. QUIN-CON LTD & QUINLAN

SAMUEL SHINKWIN

v.

QUIN-CON LIMITED AND NICHOLAS QUINLAN

[2000] IESC 27

122/98

152/98

THE SUPREME COURT

Synopsis

Negligence

Negligence; personal injuries; proximity; plaintiff suffered serious injuries whilst in factory premises where employed by the first named defendant; second defendant was effective sole shareholder and day-to-day manager of the first named defendant; although plaintiff had never been instructed in its use, he had moved jig in electric saw when in motion and inadequately guarded; defendant appealing plaintiff's award of £300,000.00 for loss of three fingers and part of thumb; whether second-named defendant involved himself so closely in the operation of factory and supervision of plaintiff as to make himself personally liable for any acts of negligence which injured plaintiff.

Held: appeal dismissed.

Shinkwin v. Quin-Con Ltd. - Supreme Court: Keane C.J., Geoghegan J., Fennelly J. - 21/11/2000 - [2001] 1 IR 514 - [2001] 2 ILRM 154

Citations:

SWEENEY V DUGGAN 1991 2 IR 274

SWEENEY V DUGGAN 1997 2 ILRM 211, 1997 2 IR 531

DONOGHUE V STEVENSON 1932 AC 562

TULSK CO OPERATIVE LIVESTOCK MART LTD V ULSTER BANK LTD UNREP GANNON 13.5.1983 1983/12/3661

SALOMON V SALOMON 1897 AC 22

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

ANNS V MERTON LONDON BOROUGH 1978 AC 728

PURTILL V ATHLONE URBAN DISTRICT COUNCIL (UDC) 1968 IR 205

SINNOTT V QUINNSWORTH 1984 ILRM 523

1 JUDGMENT delivered on the 21st day of November, 2000 by FENNELLY J. [Nem diss]

2 The present appeal concerns one principal issue namely, whether the second defendant was correctly held liable to the plaintiff for serious injuries he sustained in an accident at the factory premises where he was employed by the first defendant. The first defendant was uninsured, had no assets and did not defend the claim. Hence the plaintiff's wish to succeed against the second defendant, the effective sole shareholder and controller of the first defendant. The award was £304,000. The plaintiff lost several fingers in his right hand. Damages are not in issue on the appeal.

3 The plaintiff cross-appeals against the failure of the trial judge to find that he was employed by the second defendant, an issue which does not arise if he succeeds on the principal issue.

4 The plaintiff was twenty years of age at the date of the accident, the 3rd August 1993. The first defendant had a small factory making trophies near Clogheen, Co. Cork. He originally went to work for the defendants by way of work experience on a FÁS training programme. He began working on assembling trophies but graduated to working on woodworking machines. He was put to work on the machine which caused his injury about eight months before the accident. It was an electric circular saw with a jig which had to be moved or adjusted from time to time. The plaintiff moved the jig while the saw was in motion and while it was inadequately guarded. He had never been instructed to do otherwise. The jig shifted suddenly, as it was stiff. His right hand slipped and came in contact with the saw. He lost the index, middle and ring fingers and part of his thumb

5 The learned trial judge found in favour of the plaintiff as against the first defendant because the machine had no proper guard, or, if it did, the plaintiff was not instructed in its use. It was not seriously contested that, as found by the trial judge, the plaintiff received no training in the use of an admittedly dangerous machine and no warnings as to the dangers that were inherent in the work. In particular he was not warned to stop the circular saw before adjusting the jig.

6 As to the second defendant, the trial judge held:

"The Plaintiff regarded the second named Defendant as his boss. The second named Defendant was in my opinion, or did in my opinion, owe a duty of care to the Plaintiff as manager of the factory premises, and I am satisfied that he failed in that duty in that he failed to provide proper training for the Plaintiff. He failed to warn the Plaintiff of the dangers inherent in the work that he was obliged to do. He failed to ensure that the guard was at all times properly adjusted over the saw and he failed to ensure that the saw was switched off at all times when the jig was being moved."

7 Counsel for the second defendant says that the fact he is virtually the sole owner of the business is not relevant. It does not impose a duty of care. The duty to provide a safe system and a safe place of work is an obligation imposed directly in law on the first defendant as employer of the plaintiff. The decision, if allowed to stand, would open the door too wide and establish a new category or basis of liability for factory managers. A fellow employee is admittedly liable personally for any direct negligent act which causes injury in the work place. However, this case is different. The second defendant must be regarded merely in the guise of manager. The faults attributed to him are mere acts of omission. Persons in such positions do not attract personal liability. He relied on the judgment of Barron J in the High Court in Sweeney v Duggan [1991] 2 I. R. and of this Court on appeal [1997] 2 I. R. 531.

8 Counsel for the plaintiff relies on the principle established in Donoghue v Stevenson [1932] A. C. 562 that everybody owes a duty to exercise reasonable care not to cause injury to any person who should be regarded as his neighbour, i.e. anybody to whom he is in such a relationship of proximity that it is reasonably foreseeable that that other person may suffer injury as a result of his negligent acts. The first defendant was not merely the sole effective shareholder of the plaintiff's employer. He was also the effective and only manager. Counsel laid special emphasis on the complete control exercised by the second defendant over the factory which was the plaintiff's workplace and the plaintiff. He drew attention to the following passage from the judgment of Gannon J in Tulsk Co-operative Livestock Mart Limited v Ulster Bank Limited [unreported 13th May 1983]

"In every case in which a claim for damages is founded in negligence it is essential to examine the circumstances which bring the parties into relation with each...