1. The
Plaintiff in this case is a 40 year old married man with three children. He
works as a lorry driver for the first named Defendants who are distributors of
drinks, and are and were at all relevant times the Plaintiffs employers. The
second named Defendant is a garage and is a main Ford truck dealer.
The
Plaintiffs claim is for damages for personal injuries which he says he suffered
while in the employment of the first named Defendant. The accident is alleged
to have occurred on the 9 September 1992. At that time the Plaintiff was a
helper on the truck and on the morning of that date he and his supervisor were
checking the load on the truck at Dwan's premises. Having done so the Plaintiff
was dismounting from the body of the truck. This involved pulling down shutter
type doors on the side of the truck and stepping out onto the step crash bars
on the side of the truck and then stepping onto the ground.
He
says that as he stepped onto the side crash bars on the passenger side, behind
the rear wheel, the crash bars collapsed under him causing him to fall to the
ground, striking the ground in a seated position and causing him personal
injuries, loss and damage.
Insofar
as the first named Defendant is concerned, Counsel has informed the Court that
it is to be treated as an assessment of damages only in as much as the first
named Defendant does not dispute the Plaintiffs evidence. However it does not
accept responsibility for the defect in the truck which resulted in the
Plaintiffs injuries. The first named Defendant claims that this came about
solely as a result of the negligence of the second named Defendant and does not
admit negligence.
Insofar
as the second named Defendant is concerned there is a full dispute on liability
and there is a plea of contributory negligence.
As
between the Defendants, a notice claiming contribution or indemnity was served
by the second named Defendant on the first named Defendant on the 16 January
1998 alleging that if the Plaintiff did suffer any personal injuries, loss or
damage "the same was wholly caused as a result of negligence, breach of duty
including statutory duty on the part of you, your servants or agents".
Insofar
as liability is concerned the following issues arise in this case:
It
is the first named Defendant's case that it became aware of the fact that the
side crash bar of the lorry was loose and defective and that it sent the lorry
to the second named Defendants on two occasions immediately prior to the
accident for repairs to be carried out to the crash side bars. They say that
Westpark Motor Company Limited has always done their repairs on their fleet of
lorries since early 1990. They have been found satisfactory and they say that
on the 26 August 1992, approximately two weeks before the accident, they sent
the lorry to the second named Defendants with instructions to repair the crash
side bar. They believed that this had been done. They were billed and paid for
this item and it is the first named Defendant's case that in the circumstances
they had taken all reasonable care for the safety of the Plaintiff and they say
that any loss or damage that arises as a result of the defect in the side crash
bar step arises from the failure on the part of the second named Defendants to
carry out the job in a satisfactory way.
Insofar
as the evidence relating to the occurrence of the accident is concerned there
is no contest between the Parties. It is accepted that the Plaintiff stepped
out on the bar and that it gave way under him causing him to fall to the ground.
The
first issue is a denial by Westpark Motor Company Limited that the truck was
sent to them to have this side crash bar repaired. It is denied by Westpark
Motors that they ever did any work on this particular side crash bar. They
admit that they were requested to do other work on the truck but that they
never were asked to work on the step which collapsed under the Plaintiff.
I
have been referred to two job sheets from Westpark Motors. In the first of
these dated the 20 July 1992 the list of jobs to be carried out were:
"(5)
Step (bar) to be welded"
It
is the evidence of Westpark Motors that in fact this work was not done at all.
It appears from the work description on the reverse side of the job sheet that
the vehicle was in Westpark Motors from 3.30 to 4.40 on that date. During that
time they replaced the parking light switch and brake light switch. They
replaced the mirror glass on the near side. They removed the obstruction from
the throttle linkage and freed the bar linkage. They then delivered the truck
back to Dwans. I think that it is reasonable to conclude that no repair work on
the side crash bar was, in fact, done on that day because on the 26 August, six
days later, the truck went back with instructions to "steps to be welded hand
truck rail".
A
dispute has arisen as to what steps are being referred to. In fact evidence has
been tendered to me that the rail, which perhaps could be described as the
"rear bumper" of the truck, was what was referred to and it was to be welded
back on. The work description on the back of the card reads "clean up crash
bar, weld crash bar back on." I do not accept the evidence that it was the
"rear bumper" which was welded on that occasion. I have the evidence that the
step that caused the accident in this case is also used from time to time as a
means of holding the hand truck. I believe that the side crash bar is
identified quite clearly in the job card by the description "hand truck rail".
I am satisfied on the evidence that it was the step which gave way under Mr
Armstrong that was referred to in the job card of the 26 August 1992. I am
satisfied that Westpark Motors carried out the work of welding that step back
on. I reject the evidence that the reference in the job card to this work is to
the "back bumper" of the truck.
Accordingly
I am satisfied to make the finding of fact that the first named Defendants
entrusted to the second named Defendants the obligation to weld the side bar
step back on to the truck. I am satisfied that Westpark Motor Company did carry
out this work. I am satisfied that they being main Ford truck dealers are a
reputable company upon whom the first named Defendants were entitled to rely. I
do not consider that it would be reasonable to expect the first named
Defendants to inspect the work prior to putting the truck back into service. I
believe that they were entitled to assume that the job was satisfactorily
carried out given the straight forward nature of the work to be done, the fact
that Westpark Motor Company were main Ford dealers and the fact that they had
satisfactorily carried out repairs to the Plaintiffs fleet of trucks for some
time in the past. They were not in breach of obligation towards the Plaintiff
by failing to inspect the work done on the side crash bar.
Insofar
as the quality of the job done by Westpark Motors is concerned I have heard the
evidence of Mr Watson, the Mechanical Engineer and I accept his evidence that
his inspection discloses defective workmanship where the Defendants carried out
this welding work. I accept that a weld envisages a blending of the two parts
which are to be welded. This did not happen when the work was carried out on
the 26 August. A quantity of material was placed between the parts to be welded
which secured the joint but only resulted in an unsatisfactory job and I am
satisfied that this joint gave way when put under stress by the Plaintiffs
weight. I am satisfied that there was negligence on the part of Westpark Motor
Company Limited and I am satisfied that their negligence was the cause of this
accident and that there was no failure or default on the part of William J Dwan
& Sons Limited.
Before
leaving this aspect of the case I should mention that I have heard the evidence
of Mr Burke a Director of Westpark Motor Company Limited and I believe that he
is attempting to assist the Court but is mistaken because in fact he does not
actually recollect these transactions and is giving his evidence by attempting
to reconstruct what happened by reference to the job cards to which he has
referred. Moreover I think his recollection is coloured by the fact that he
sincerely believes that someone other than Westpark Motors serviced and carried
out repairs to the truck. It is unnecessary for me to make a finding of fact
with regard to that last point because I do accept that the repair work which
was carried out on the side crash bar on this occasion was carried out by the
second named Defendants.
With
regard to the evidence of Mr Fox I reject that evidence.
Injuries:
With
regard to the injuries in this case, I find as a fact that the Plaintiff has
worked all his adult life and that he suffered a pain in his back a short time
prior to this accident. The previous July he had gone to Dr Blennerhasset when
spontaneously overnight his back got sore. He was diagnosed as having pulled a
muscle and advised to remain out of work for two weeks. He was advised to go to
Beaumont Hospital for a check which he did and was again advised that he just
pulled a muscle in his back. He was then advised to take three days off work
and then to return to work which he duly did. He worked for two weeks prior to
the holidays. His back had recovered. He had no pain and during the holidays he
was able to relax, travel with the family on holidays and play pitch and putt.
It
is suggested by the Plaintiffs Orthopaedic Surgeon, Mr Moran that what he
suffered on this occasion was a small annular tear.
The
accident with which this claim relates occurred on the 9 September, 1992. The
Plaintiff had been back at work for three weeks doing heavy work and he had no
problems. On the date of the accident he fell in a sitting position. He rested
by sitting on a pallet and felt after some time that he could carry on with his
work.
Overnight
and for the next few days the pain got progressively worse. He treated it with
pain killers and on the 30 September went to his General Practitioner. By then
he had serious pain in his back. On the 19 January he had a CT scan. On the 10
February he saw Mr Moran who advised that the accident caused a disc protrusion
which necessitated an operation which was carried out on the 7 February 1993.
This required the Plaintiff to remain in hospital for eight days. It gave
immediate relief from the pain the Plaintiff was experiencing in the sciatic
area but did little for the pain in his back. The Plaintiff was anxious to
return to work, obtained a certificate from his General Practitioner that he
was fit for work and returned on the 10 January 1994. Since February 1994 he
has worked as a driver on the truck.
I
am satisfied that it was the accident of the 9 September 1992 which brought
about the injury which gave rise to the necessity to undergo treatment and to
cause the Plaintiff to be disabled for work until January 1994 and now gives
rise to the present disabilities. I am satisfied that the problems which the
Plaintiff had prior to the accident had been resolved given that he, having
rested, was able to go back to work and work satisfactorily for two weeks,
enjoyed his holidays to the full without problems and then went back to work
for three weeks up to the time of the accident without any difficulties.
The
Plaintiffs present position is this. He continues to suffer significant pain in
his back. This has had a major impact upon his enjoyment of life. If he works a
full day driving his truck and distributing crates of drink, he finds that his
back pains to the extent that he requires to rest in bed in the evening time.
He has followed Mr Moran's advice in "swimming" (even though he can't swim). As
part of his therapy and in carrying out exercises even though he does not carry
out a full back exercise regime. I am satisfied that it gravely disables him
from joining in family recreations, play golf, gardening and is a constant
source of pain to him at work. I accept the evidence of Mrs Armstrong that his
whole way of life and lifestyle has altered as a result of the accident.
Insofar
as the future is concerned there is a further dispute. Mr Moran is of the
belief that the Plaintiff will get progressively worse so that in ten years
time he will no longer be able to work as a truck driver. On the other hand Mr
McManus considers that with the passage of time the Plaintiffs back will
improve although he can produce no authority to support that point of view and
in fact recognises the opinion as a modem phenomena. I prefer the evidence of
Mr Moran though with some modification.
I
assess Mr Armstrong as an honest, reliable and totally committed worker who
enjoys his work with Dwans and from the support that he obtained from his work
mates, it is clear to me that he is well liked on the job. I am unable to
accept that in ten years time Mr Armstrong will simply down tools, leave Dwans
and be thrown on the labour market. I believe that with the passage of time and
the introduction of up to date cargo handling methods, the elements of his
present job which exacerbate the problems in his back will disappear or be
significantly reduced. I do not believe that the Plaintiff will ever find
himself in the position of having to find a job as security man or a store man
in the circumstances which will mean a reduction in his wages.
On
the other hand I do believe that while he continues to work he will do so with
increasing pain and difficulty and indeed he may not be able to do the third
load to which reference has been made at Christmas time or in the Summer and
that he will suffer loss in that way and in other ways. He may also from time
to time miss time at work.
I
do not accept that this claim for future loss of earnings should be calculated
on an actuarial basis but in my view it should be reflected in general damages.
Moreover the actuarial figures which I have been given are not relevant to the
present case. The value of a pound has been given to me as of today's date. The
loss to which reference has been made in this case would arise in ten years
time if at all. Also the wages which have been referred to in evidence for
particular jobs refer to today's rate of remuneration for certain types of jobs
and in my view cannot be relied upon as an accurate guideline ten years hence.
Accordingly
I approach the assessment of damages in the following way:
Loss
of earnings to date (30 September 1992-10 January 1994) six weeks @ £260
per week = £17,160 (credit to be given for social welfare and any other
proper deductions to be made).
General
Damages:
To
date -- £40,000
In
the future -- £60,000
It
remains to resolve the final issue that has arisen in this case.
It
is submitted on behalf of the second named Defendant that it is unjust and
unreasonable that they should be called upon to indemnify the first named
Defendant or contribute towards any damages which he has to pay. In this regard
I assume, though I have not seen it, that a Notice of Contribution or indemnity
has been served by the first named Defendant on the second named Defendant
The
reasons behind that submission are that they have been deprived of the
opportunity of inspecting the lorry in question by reason of the delay on the
part of the first named Defendant's solicitors in making the lorry available
with the result that it had already been dismantled when they obtained
inspection. They say therefore that the first named Defendants are estopped
from seeking contribution or indemnity insofar as they were concerned.
There
is no doubt that the second named Defendants were only alerted to the fact that
they were being held responsible for this accident at a very late stage and
immediately, on the 26 of October 1994, their solicitors sought an opportunity
to inspect the lorry in question. It was not until the 11 December 1995 that
permission to inspect was given. By then, in May of 1995, the vehicle was sold
and was scrapped. Subsequent efforts to inspect the vehicle proved fruitless.
In
my view what the second named Defendant is attempting to do is to set up a plea
in estopple so as to preclude the first named Defendant from seeking
contribution or indemnity from Westpark Motors.
The
fact of the matter is that I have found no liability whatever upon the first
named Defendant to pay damages to the Plaintiff. Accordingly the question of
the first named Defendant seeking contribution or indemnity from the second
named Defendant does not arise save possibly as to the question of costs. On
this topic I will hear Counsel.
Accordingly
I give Judgment in favour of the Plaintiff against the second named Defendant
in the sum mentioned above.