High Court 

Armstrong v William J Dwan & Sons Limited and Westpark Motor Company Limited

1993/6500 P  

8 February 1999 

MORRIS P: 

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.