Staunton v Toyota (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-SC 3361
• Court: Supreme Court
• Date: 01 January 1996

1995 WJSC-SC 3361

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Blayney J.

183–197/88

STAUNTON v. TOYOTA (IRL) LTD

BETWEEN

GEORGE STAUNTON

Plaintiff

AND

TOYOTA (IRELAND) LIMITED

Defendants

AND

FIELDHILL INVESTMENTS LIMITED

Defendants/Respondents

AND

FLOGAS LIMITED

Third Party/Appellants

Citations:

CIVIL LIABILITY ACT 1961 S29

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S11(1)

CIVIL LIABILITY ACT 1961 S11(2)

CIVIL LIABILITY ACT 1961 29(1)

HEATHERINGTON V ULTRA TYRE SERVICES LTD 1993 ILRM 353

NEVILLE V MARGAN LTD 1988 IR 734

INTERNATIONAL COMMERCIAL BANK PLC V INSURANCE CORPORATION OF IRELAND 1989 IR 453

KELLY V BOARD OF GOVERNORS OF ST LAURENCES HOSPITAL & STAUNTON 1989 ILRM 877

LAWLESS V BUS EIREANN 1994 1 IR 474

CIVIL LIABILITY ACT 1961 S29(2)

Synopsis:

CONTRACT

Terms

Liability - Exemption - Clause - Relevance - Party not exempted from liability arising from breach of duty occurring before date of contract - (183,197/88 - Supreme Court - 7/7/95) 1996 1 ILRM 171

|Staunton v. Toyota (Ir.) Ltd.|

NEGLIGENCE

Wrongdoer

Damages - Contribution - Third party - Concurrent wrongdoer - Duties of defendant and third party to plaintiff not necessarily identical - Contract between claimant defendant and third party - Exemption clause in contract - Relevance of clause to wrong committed before date of contract - Civil Liability Act, 1961, ss. 11, 29 - (183,197/88 - Supreme Court - 7/7/95) [1996] 1 ILRM 171

|Staunton v. Toyota (Ir.) Ltd.|

1 Judgment delivered on the 7th day of July, 1995 by O'Flaherty J. [NEM DISS]

2 In these third party proceedings the second-named defendants ("Fieldhill") claimed a contribution or indemnity from the third party, Flogas Limited ("Flogas"), in respect of damages and costs awarded to the plaintiff in an action arising out of an accident which occurred on the 11th November, 1982.

3 I take the following summary from the learned High Court judge's judgment of 15th April, 1988.

4 The plaintiff was injured in a fire and explosion at a filling station on the Naas Road occupied and controlled by Fieldhill. He was driving a motor car given to him by his employer (who were named as the first-named defendants in the proceedings he instituted). Whilst visiting the filling station he backed his car into a petroleum liquid gas dispenser situated on the forecourt of the filling station, knocking it down and thereby causing an escape of gas which exploded and went on fire.

5 In the main action which was held on the 23rd/26th July, 1985, before Egan J. and a jury the jury found the employers to have been 18% responsible for the accident (in requiring the plaintiff to drive the vehicle they supplied when the view through the rear window was obscured); that Fieldhill had been 49% responsible for the accident and that the plaintiff himself had been guilty of contributory negligence and was responsible to the extent of 33% for the accident.

6 The specific finding that the jury made against Fieldhill was that they had failed to maintain suitable barriers around the liquid gas dispenser.

7 After an appeal to this Court there was a reduction in the damages which the plaintiff had been awarded and judgment was finally given against Fieldhill for £62,573 and costs.

8 The hearing date was approaching when Fieldhill moved to join Flogas by way of third party proceedings. The application to join Flogas was grounded on the affidavit of Jacqueline Smith, a solicitor with Fieldhill's firm of solicitors, and in the course of that affidavit Ms. Smith swore that if the accident occurred as alleged then it appears to have been caused by reason of the dangerous and defective condition of the liquid petroleum gas installation. She went on to say that it was the duty of Flogas to exercise all proper care in the installation, design, management, care, upkeep, supervision and control of the said liquid petroleum gas installation and that in all the circumstances the said accident was caused by reason of the negligence and/or breach of contract of Flogas, its servants or agents, in supplying to Fieldhill a liquid petroleum gas installation that was dangerous and defective, and was not fit for the purpose for which it was supplied.

9 The third party notice that was served on Flogas also contained a recitation of what was alleged (as well as providing copies of the pleadings in the main action). In a word, it was made clear to Flogas that the kernel of the case being made by the plaintiff was that there was not adequate protection for the installation in question.

10 By order of Hamilton P. (as he then was) of the 4th March, 1985, it was provided that Fieldhill be at liberty to issue and serve a third party notice on Flogas, such service to be effected on or before the 1st April, 1985. Then the order went on to provide:-

11 AND IT IS ORDERED that the third party do have a period of 21 days after service of said notice within which to enter an appearance and that the second-named defendant do have a period of 28 days after entry of appearance within which to deliver a statement of Claim against the third party and that the third party be at liberty to plead thereto within 28 days from the delivery of said Statement of Claim and that the third party be at liberty to appear at the trial of this action and to take such part therein as the trial judge shall direct and be bound by the result of the trial and that the question of the liability herein of the third party to make contribution to or indemnify the second-named defendant be tried at or after the trial of this action as the judge shall direct or in the event of a compromise of said action as the judge dealing with same shall direct and that the said question be set down by the second-named defendant for trial accordingly.

12 While an appearance was entered on behalf of Flogas no pleadings were exchanged before the trial. Flogas were represented at the trial by a solicitor but did not apply to take any part in the trial and no application was made to the trial judge for a direction as to the trial of the third party issue.

13 It was not until the 16th October, 1985, after the conclusion of the trial of the main action, that a statement of claim was delivered. A defence (afterwards amended) was delivered a month or so afterwards.

14 In due course, the trial of this third party issue was set down for decision.

15 The learned trial judge recounts the evidence that was given before him and some of his conclusions as follows;-

16 Fieldhill negotiated with the owners of the filling station for a lease of the premises to them so as to afford an outlet for the liquid petroleum gas which is one of the products in which Flogas deal. Fieldhill employed a local firm (an agent for the distribution of Flogas" products) to manage the filling station and arrange for the installation of a storage tank, a dispenser and ancillary piping to enable LPG to be sold to the public. Mr Reynolds of that firm discussed the installation of Flogas" equipment directly with Flogas and was told where and how the tank and the dispenser were to be installed. He prepared the forecourt on the instructions and the advice given to him by Flogas. During the course of the work he specifically raised with Flogas the question which subsequently figured prominently in these proceedings, namely whether a protective barrier should be placed around the dispenser. He was instructed only to make provision in the plinth on which the dispenser was to be placed for the possible erection at a later date of a barrier. This he did, but neither he nor Fieldhill were, prior to the plaintiff's accident, told to erect a protective barrier. LPG is, of course, a dangerous substance and requires careful handling. I am quite satisfied that both Mr. Reynolds and Fieldhill relied completely on Flogas" skill and judgment (who in this connection were correctly regarded by them as the experts) in the installation of the equipment generally and in particular in the decision which resulted in the absence of a protective barrier around the dispenser. Had they been told to erect such a barrier they would have done so.

17 After the installation had been completed Fieldhill and Flogas entered into a written agreement on the 25th May, 1982 for the supply of LPG to Fieldhill's premises. One of its terms provides the main plank of Flogas" defence to the present claim. By this agreement the equipment on the site (including the dispenser) was to remain Flogas" property. Fieldhill were to take a specified quantity for a specified time Flogas" PLG and in a clause [considered later in his judgment] Fieldhill agreed to indemnify Flogas in respect of claims by injured persons in certain circumstances.

18 As regards the basis on which Flogas should be made liable, the learned trial judge said that it was necessary to establish not that Flogas was guilty of a breach of a duty of care which it owed to Fieldhill but (i) that Flogas owed a duty of care to the injured plaintiff; (ii) that they had breached that duty and (iii) that the injured plaintiff could have successfully sued Flogas for the injury he sustained.

19 He said that the order giving leave to Flogas to appear at the trial...