The High Court refused an application by BAM Building Limited to set aside a third-party notice in a personal injuries case brought by Vickie Morey against Marymount University Hospital and Hospice Limited and BAM Construction Limited. The ruling concerned the timing of the notice, not the merits of the injury claim or the third-party proceedings.
Morey alleges that on or about 12 October 2012, while working at the hospital at Marymount, Curraheen, County Cork, a wall-mounted television unit detached and struck her head and face. She alleges negligence, breach of contract and breach of duty relating to the unit’s installation and fitting. These are allegations; the judgment did not decide whether they were established.
The judgment records that BAM Building had contracted with the hospital company around 2009 to build the hospital. Morey’s summons named BAM Construction as a defendant, but the judgment says that company had not been involved in the construction and had been dissolved in 2008. After Morey discontinued her case against that company, the hospital company sought to join BAM Building as a third party so it could pursue a contribution or indemnity claim.
BAM Building argued that the hospital company had delayed too long. It pointed to the time elapsed after the proceedings began and said the hospital company had access to construction records that would have identified the correct BAM entity. The hospital company cited the number of companies in the BAM group and argued that BAM Building knew about the incident, inspected the site and carried out repair work. It also argued that BAM Building had engaged in the third-party proceedings by requesting a statement of claim. BAM Building later advised that it would seek to set aside the notice for delay.
Justice Baker found that the hospital company had the information needed to identify the contracting company and that its delay was “culpable”. But she assessed the whole course of the litigation, including that the motion to join BAM Building was issued 12 days after Morey discontinued against the dissolved company. The discontinuance, the judge said, was when the hospital company knew it was at risk of losing a potential contributor.
The court therefore refused to set aside the third-party notice. It did not decide the merits of the contribution claim, the likely liability of any party, or the degree of any contribution. The judge also did not decide whether prejudice was relevant, noting that BAM Building had provided no evidence of actual prejudice from the delay.