High Court of Ireland Decisions

Everitt v. Thorsman Ireland Ltd. [1999] IEHC 7; [2000] 1 IR 256 (23rd June, 1999)

BETWEEN

JUDGMENT of Kearns J delivered on the 23rd day of June 1999

1. The Plaintiff who is from Drogheda was born on the 3rd of October 1947 and until June 1993 was employed as a general assistant by the first named Defendants who make plastic fixings for the building industry. At the time of his accident on the 24th of June 1993 the Plaintiff had been in the employment of the first named Defendants for some seventeen years.

2. On the morning of his accident the Plaintiff was endeavouring to open the lid of a bin with a lever provided for that purpose when the lever snapped and broke, causing the Plaintiff to fall backwards onto the ground thereby sustaining an injury in respect of which these proceedings are brought.

3. The evidence establishes that the bin and lever with which he was working on the day of his accident had been supplied to his employers some months previously by the second named Defendants to whom the first named Defendants wrote a letter on the 25th of June 1993 advising them of the fact of the accident and indicating that Messrs.Thorsman were accepting no liability for what had occurred. A follow up letter on the 24th of August 1993 sought full indemnity from Jumbo Bins on the basis that the accident had occurred while one of their employees was operating a jumbo bin, which had remained the property of the second named Defendant.

4. Two years passed before Jumbo Bins sought to involve the third named Defendants in the proceedings, proceedings to which they were eventually joined on the 16th of June 1997, on the basis that they in turn had supplied the jumbo bin and lever to the second named Defendants.

5. The case was heard in Dundalk, but because of a number of issues which arose during the course of the evidence I decided to take submissions in Dublin which I duly did on Monday the 14th June 1999.

6. Prior to receiving such submissions, I indicated to the parties that I was making the following preliminary findings of fact and that all or any submissions should take such findings into account:-

7. A. The lever snapped or broke in the pipe section thereof near but not at the joint with the spanner;

8. B. The break was caused by the inadequate strength of the material and because the diameter of the tube used was too small;

9. C. The relevant defect was not patent, apparent or discoverable on reasonable examination;

10. D. The first named Defendants obtained the lever in question from the second named Defendants;

11. E. The second named Defendants did not obtain the said lever from the third named Defendants.

12. Dealing with the last point first, I am quite satisfied, having reviewed my notes of the trial and having read the entire transcript thereof, that the evidence of Mr. Maguire of Numac was preferable on this issue to that given to the Court by Mr. McArdle.

13. Mr. Maguire produced to the Court a lever of the type usually made up by his company at the relevant time. It was not only different in the sense of being painted bright yellow, but had numerous features quite different from the lever involved in the accident, including an angled piece at the spanner end, a loop or a hood to stop the lever slipping in on the pin of the bin and a tail which goes down inside the tube for about three inches. The actual plate at the end is oval rather than hexagon in shape and the material used was steel strap which is flat. In short, the lever produced byNumac differs in virtually every significant respect from that involved in the accident.

14. The second named Defendants were not able to produce any clear records which would establish to any degree of likelihood that the particular lever was supplied to them by the third named Defendant. Indeed, the lapse of time which occurred before any suggested involvement ofNumac arose is a matter of some significance in this case. For all these reasons, I dismissed Numac from the proceedings, awarding them costs to be recoverable from the second named Defendant. In this regard I do not regard the joinder of Numac as a co-defendant by the Plaintiff's Solicitors as anything more than a ritualistic step taken in a situation where the second named Defendants were the relevant moving parties in joining Numac in the first instance.

15. On the supply side of the case, I see nothing that breaks the chain of connection thereafter as between the second named Defendants and the first named Defendants. Any suggestion that the first named Defendants themselves made up this implement is entirely unsupported by any evidence and in my view is not a proposition which was open to be made in the light of the evidence in the case.

16. I employed the term "relevant" defect which caused this accident, because there was evidence in the case that there was another feature associated with the particular lever, namely, that it used from time to time slip off the pin to which it had been applied. Thisobviously arose because the opening in the head or spanner of the lever was too large or, alternatively, ill-fitting to the pin in question. It is suggested that this characteristic should have put the first named Defendants on notice that there was a problem with this particular implement and that having such notice they should have undertaken further evaluation of the lever from a safety point of view, and that had they done so, the latent defect would have been discovered.

17. I cannot agree with this contention. To give a simple example, a newly purchased knife may not cut properly because the blade is blunt, but that can hardly put the owner or user on notice that the knife is about to break into two pieces. Things would be different if there was evidence thatextra-ordinary force needed to be applied to the knife because of the bluntness which would cause it to break because there would then be a connection which would make the characteristic relevant to the accident which in fact occurred.

18. There is in the present case a complete absence of any such connecting factor. If, in the instant case, there had been evidence that gross and extra-ordinary force had to be applied to the lever to raise the bin lid by virtue of the "slipping off" characteristic, then clearly the first named Defendants would have been on notice in such a way that the relevant defect might have become apparent. There was no such evidence.

19. Of all the expert evidence, that of Dr. Wood strikes me as the most reliable. Many of the other engineers called in the case lacked his degree of specialised knowledge and experience. His basic theme was that, as indicated in the recitation of findings of fact, that the break was caused by the inadequate strength of the material and because the diameter of the tube used was too small. He also mentioned rust, but as no rust was evident when MrFahy examined the lever a year before Dr Wood, I am dismissing it as a factor.

20. It was clear that the lever could break at a point somewhere between 40 lbs - 90 lbs pressure in a situation where 60 lbs of pressure was required to open the bin-lid.

21. However, the likelihood of such a fracture occurring could not be apparent to a layman. Indeed, Dr. Wood went so far as to say that even an engineer looking at the implement would not have spotted the relevant defect.

22. Accordingly, a question falls for determination as to the responsibility, if any, of an employer for an injury sustained by an employee in circumstances where a tool supplied by a third party contains a latent defect which results in an injury to the employee.

As McMahon and Binchy (1990 Ed.) points out at p. 327:-

"The employer has the duty to take 'reasonable care' to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk."

23. The authors point out at p. 328:-

"It should, however, be pointed out that an employer is not an insurer of the safety of the equipment supplied to his employees. As Kingsmill Moore J. stated in the Supreme Court decision of Dowling -v- C.I.E.,

'This duty is not a warranty but only a duty to exercise all reasonable care'.

Thus, where an employer buys from a supplier a standard tool, whose latent defect he has no means of discovering, he may be relieved of liability in negligence in the event of injury to an employee."

24. In this regard, the first named Defendants relied on the decision of the House of Lords in Davie -v- New Merton Board Mills Limited and Anor. (1959 AC 604).

25. In that case a maintenance fitter was knocking out a metal key by means of a drift and hammer when, at the second blow of the hammer, a particle of metal flew off the head of the drift and into his eye, causing injuries. The drift, which had been provided for his use by his employers, although apparently in good condition, was of excessive hardness, and was, in thecircumstances, a dangerous tool. It had been negligently manufactured by reputable makers, who had sold it to a reputable firm of suppliers who, in turn, had sold it to the employers, whose system of maintenance and inspection was not at fault. The fitter claimed damages for negligence against his employers on the ground that they had supplied him with a defective tool.

26. The House of Lords held that the employers being under a duty to take reasonable care to provide a reasonably safe tool, had discharged that duty by buying from a reputable source a tool whose latent defect they had no means of discovering.

27. This unanimous view of the House of Lords is in accord with the Irish judgments in Bissett -v- Heiton & Co. (1930 I.R. 17) and Bissett -v- Heiton & Co. (No. 2) (1933 I.R. 242).

28. The Plaintiff for his part relied upon a decision of the Supreme Court delivered on the 18th November 1992 in Connolly -v- Dundalk Urban District Council and in particular to the passage of the judgment of O'Flaherty J. as follows:-

"The common law duties to take reasonable steps to provide safe plant and a safe place of work - I speak of the place of work as being part of the employer's property, which is the instant case - are such that they cannot be delegated to independent contractors so as to avoid the primary liability that devolves on employers to make sure that these duties are carried out. These are responsibilities which cannot be put to one side; they must remain with the employer. They are owed to each individual employee. That is not to say, of course, but that the employer on occasion is entitled to and very often should get the best expert help that he can from an independent contractor to perform these duties. If he does so and the contractor is negligent causing injury to an employee, the employer retains a primary liability for the damage sufferedthough if he is not himself negligent he may obtain from the contractor a contribution to the damages and costs which he has to pay which will amount to an indemnity."

29. Careful reading of this passage, which was obiter, certainly conveys to me that the learned Judge recognised that the actual common law duty is "to take reasonable steps to provide safe plant and a safe place of work", and in the particular case (which concerned premises and not a tool) the employers were in any event found to be in default in two respects.

30. What further steps could the employers have taken in the instant case? Short of having the lever assessed by an expert in metallurgy or breaking the lever with a view to determining its maximum stress resistance it is difficult to see what they could have done. It was a newly purchased tool which appeared strong enough for the job and had been purchased from a reputable supplier and there is no suggestion to the contrary.

31. I therefore hold that the claim in common law against the employer in this instance fails.

32. That leaves open the question of statutory duty. The only breach of statutory duty upon which the Plaintiff relies (and in this regard no details of breach of statutory duty appear either in the original civil bill or amended statement of claim) is the suggestion that under Section 34 (1) (a) of the Factories Acts, 1955, the Defendants failed to provide "lifting tackle" which was of good construction, sound material, adequate strength and free from patent defect. I do not believe the lever in question can be regarded as "lifting tackle" and as the decision inDoherty -v- Bowaters Irish Wool Board Limited [1968] IR 277 related to a hook which was carrying a load which was suspended from a travelling crane, that case does not seem to me to be a binding authority in the present instance.

33. What does, however, seem to me to cover the situation is regulation 19 of the Safety, Health and Welfare at Work (General Application) Regulations, 1993 (SI No 44 of 1993) which imposes virtually an absoute duty on employers in respect of the safety of equipment provided for the use of their employees.

34. Article 19 provides:-

"It shall be the duty of every employer, to ensure that -

(a) The necessary measures are taken so that the work equipment is suitable for the work to be carried out or is properly adapted for that purpose and may be used by employees without risk to their safety and health"

35. Article 20 requires employers to comply with the requirements of the fifth schedule which includes the following requirement at Requirement 7:-

"Where there is a risk of rupture or disintegration of parts of work equipment, likely to pose significant danger to the safety and health of employees, appropriate protection measures shall be taken."

36. Accordingly, while there is no blameworthiness in any meaningful sense of the word on the part of the employers in this case, these regulations do exist for sound policy reasons at least, namely, to ensure that an employee who suffers an injury at work through no fault of his own by using defective equipment should not be left without remedy. AsO'Flaherty J. pointed out an employer in such a situation may usually, though not always, be in a position to seek indemnity from the third party who supplied the work equipment.

37. Accordingly, I find there has been breach of statutory duty on the part of the first named Defendant in this case.

38. There then remains to be considered the position of the second named Defendant who has raised the statute of limitations by way of defence, which in effect is its only defence on the findings made up to this point.

39. Mr. O'Donnell relies on Section 2 of the Statute of Limitations (Amendment) Act, 1991 to argue that the Plaintiff knew or should have known from the time of the accident that Jumbo Bins were the suppliers of the defective lever and as such appropriate parties to join as Defendants in the proceedings.

Section 3(1) of the Statute of Limitations (Amendment) Act 1991, provides as follows:-

"An action, other than one to which Section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which thecuase of action accrued or the date of knowledge (if later) of the person injured".

Section 2, sub-section 1 of the Statute of Limitations (Amendment) Act, 1991 provides:-

"For the purposes of any provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's state of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) and references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:-

a. That the person alleged to have been injured had been injured,

b. That the injury in question was significant,

c. That the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

d. The identity of the Defendant, and

e. If it is alleged that the act or omission was that of a person other than the Defendant, the identity of that person and the additional facts supporting the bringing of an action against the Defendant;

and knowledge that any acts or omissions did or did not, as a matter of law involve negligence, nuisance or breach of duty is irrelevant".

40. Sub-section (2) of Section 2 provides:-

"For the purposes of this Section, a person's knowledge includes knowledge which he might reasonably have been expected to acquire - (a) from facts observable or ascertainable by him, or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek."

41. Sub-section (3) of Section 2 provides:-

"Notwithstanding subsection (2) of this Section -

(a) A person shall not be fixed under this Section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice; and

(b) A person injured shall not be fixed under this Section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury."

42. Mr. O'Donnell's submission runs along the lines that such evidence as there is in this case suggests that the Plaintiff actually knew or certainly should have known that the lever was supplied by Jumbo Bins. There is evidence that his workmate, Mr. Johnson, was given instruction in the operation of the particular bin and lever by some person from Jumbo Bins when it was delivered. However, there is no evidence that Mr. Everitt was present on this occasion. He argues that Mr Johnson's knowledge can be imputed to the Plaintiff. Secondly, there is also some evidence from the Plaintiff himself to indicate that he appreciated the bin came from the second named Defendants although he denied any knowledge of where the relevant lever had come from.

43. In relation to this particular issue, it was further submitted, I think correctly, that the onus of proof rests with the Plaintiff under Section 2 of the Act.

44. Accordingly, the question arises as to whether the Plaintiff's actual or constructive knowledge runs from the date of the accident itself or from some other date.

45. Firstly, I find as a fact that the Plaintiff had no actual knowledge that the lever came from Jumbo Bins until that party was joined as a Defendant in November, 1996. The question then arises: should he have considered the potential liability of a supplier at some earlier time and taken steps to join such a party as aco-Defendant in proceedings?

46. The Plaintiff, it seems to me, employed as he was as a general assistant for seventeen years by Thorsman, was entitled to think that when a piece of equipment supplied to him by his employer failed during the course of his work that he need look no further than to his employer for redress. That is the normal position and in 99.9% of cases on facts such as these, it would never occur to an injured employee that he should look beyond his employer forcompensation. Equally, I cannot see any basis in law for fixing the Plaintiff with Mr Johnson's knowledge.

47. It seems to me that the circumstances which demanded that he join Jumbo Bins could only exist when he knew, or should have known, that the relevant defect was one which his employers could not reasonably have discovered. If they could reasonably have discovered the defect, or did discover it, and yet continued to use the tool, what need was there to look elsewhere?

48. The opportunity to form any different opinion only arose when his engineer, Mr. Wynne, carried out an evaluation of the lever in question, which said examination took place on the 6th of February 1996. It seems to me he is only to be fixed with knowledge which a technical expert only could acquire as and from that date.

49. I am fortified in this view of the appropriate commencement time for the statute by virtue of the decision of Lynch J. in Boylan -v- Motor Distributors Limited and Anor. (1994) 1 I.L.R.M. p. 115.

50. That case concerned a design defect in a van door which in May, 1986 trapped the Plaintiff's finger, following which, and knowing nothing about the design defect, the Plaintiff sued the owners of the van well within the period of the statute. Thereafter the Plaintiff's Solicitor did not arrange for an engineer's inspection of the van until the 24th August 1988. The engineer in his report indicated the design defect, following which it was deemed desirable to join Motor Distributors and Daimler Benz asco-Defendants in the Action, but this was overlooked until after the 7th of May 1989 by which time the cause of action was statute barred.

51. The learned Judged found the Plaintiff could not have known of this latent defect, and while she must be fixed with the knowledge which her Solicitor should have obtained, he did not in fact have knowledge that the Plaintiff's injury might have been caused by a design defect in the hinge mechanism of the door from the description of the accident as given to him by the Plaintiff, nor could he reasonably be expected to have gleaned such knowledge from thePlaintiff's instructions. He only gained such knowledge on the 18th of January 1989 when the engineer's report was delivered to him.

52. The learned Judge also found it was reasonable for the Plaintiff's Solicitors not to have requested an earlier report from the engineer, and in all those circumstances it was held that the Plaintiff's claim was not statute barred and I would make an identical finding in this case for precisely the same reasons.

53. Given that there was no prior indication that the particular lever would snap as it did on the morning in question, it seems to me the second named Defendants are clearly negligent as either producers or suppliers and I so determine.

54. Turning to the Plaintiff's injuries, I must at the outset say I found the Plaintiff to be extremely unreliable as a historian and a somewhat less than credible witness.

55. My case notes indicate that the case was opened on the basis that the Plaintiff's lack of symptoms concerning his leg in the past showed that this accident was responsible for the severe ongoing symptoms which since the time of the accident he complains affect his back and right leg.

56. As the trial progressed, it became clear that this was not, in fact the case.

57. The Plaintiff saw his general practitioner on the day of the accident and spent a number of days in hospital until the 2nd of July 1993.

58. Since that time he has complained of unremitting constant pain and psychiatric problems and has not returned to work in any shape or form.

59. The painful symptoms affect, in part, his neck, but mainly his back and right leg. He has also complained of depression which became apparent some eighteen months or so following the accident.

60. Mr. Everitt informed the Court that he used to miss the odd few days prior to his accident with his back, but the records of the first named Defendants indicate that he had significant periods out of work with back injury.

61. More significantly, a close perusal of the Plaintiff's medical records indicate that in 1982 he did have an episode of pain and loss of power in his right leg.

62. Mr. Barry, the Plaintiff's orthopaedic surgeon, was visibly taken aback when this information was produced to him in Court because it cast a very severe question mark over the origin of the Plaintiff's ongoing complaints. In the absence of any prior history of leg symptoms, Mr. Barry felt able to ascribe all of the Plaintiff's symptoms to the accident.

63. Clearly, however, that is not the case.

64. Furthermore, the Plaintiff was less than frank with his doctors about his prior history of depression. In fact he went so far as to describe himself as a happy-go-lucky person prior to his accident and told them nothing of his prior history.

65. In fact he had something resembling a nervous break-down in England in 1972 brought on by alcohol abuse which forced him to return to Ireland and he had further absences from work due to depression in 1983. These matters raise considerable doubts about the veracity of the Plaintiff's evidence.

66. Nonetheless, I do accept the Plaintiff did sustain an injury at work and I think it was the kind of injury which, to coin a phrase, was the "straw that broke the camel's back".

67. I do not accept the suggestion made in the opening of the case that the Plaintiff is unemployable, even though he has been out of work since the time of the accident. I think he is exaggerating his symptoms to a significant degree. He says he has never had a day without pain even though he is doing nothing which would exacerbate his condition.

68. He says he cannot cycle or play five-a-side football or pitch-and-putt.

69. He also claims to have developed an ulcer from the medication he was required to take to deal with his symptoms.

70. There is no doubt but that the Plaintiff is fit for light work and I hold that he should have sought and obtained such work within twelve months of his accident.

71. There are special damages (agreed) of [sterling]4,000.00.

72. His total figure for loss of earnings to date, if he were entitled to recover them in full, is [sterling]37,120.00. This is in respect of six years loss of earnings. I will accordingly allow the Plaintiff the sum of [sterling]6,000.00 for the year following his accident and 50% of that sum for the following five years, making a total of [sterling]21,000.00.

73. The calculation in respect of that five year period reflects the fact that the Plaintiff may have had some difficulty finding work and/or retaining it throughout the period, although he most certainly would, or should have been able to secure light work of the type described by MsKeenan in her evidence.

74. I accept the Plaintiff is not fit for heavy labouring work in the future. While Ms Keenan has given a band of figures which would represent his return from light work, it does appear that he could earn [sterling]130.00 per week nett and given that his previous employment would have produced an income of [sterling]243.00 per week nett, his differential is [sterling]113.00 per week and the appropriate multiplier is 515.

75. If I were to allow a simple multiplication to take effect, it would represent in my view a gross injustice. The Plaintiff has significant preaccident history of depression and back symptoms, either or both of which could have returned at any time during his working life and forced him out of employment. Accordingly, there is a factor here to be taken into account in addition to that revised in Reddy -v- Bates (1983) I.R. 141.

76. In all the circumstances I think a generous sum for future loss of earnings would be [sterling]25,000.00.

77. Turning to general damages, I have to again reiterate that I was unimpressed by the Plaintiff as a witness and historian. I felt he was both evasive and less than frank about his medical history. I also feel he exaggerated his difficulties to a significant degree.

78. I propose to allow him a sum of [sterling]20,000.00 for pain and suffering to date and a further sum of [sterling]10,000.00 for pain and suffering in the future.

79. This produces a grand total of [sterling]80,000.00 and I will give judgment for that amount against the first and second named Defendants. For the reasons which are entirely obvious on the particular facts of this case, it seems to me to be a situation where the first named Defendants are entitled to indemnities/contributions from the second named Defendants to the extent of 100% and I so hold.