The Supreme Court has upheld the striking out of a third-party notice brought by Clonmel Enterprises Ltd against a valve supplier in litigation arising from the death of employee Thomas Molloy on Lower Drumcondra Road.
Mr Molloy died on 14 December 1994 while working with other Clonmel employees on a water valve installed for Dublin Corporation. The court recorded that the accident appeared to occur when an unprotected valve spindle shot from its casing while he was working on it.
His widow, Mary Molloy, commenced damages proceedings in May 1996 against Dublin Corporation, Clonmel and valve manufacturer Bestobell Valves Ltd. The statement of claim alleged, among other matters, a failure to ensure that the valve had a suitable spindle collar or other restraint.
Clonmel delivered its defence in June 1998. It did not seek leave to bring Ashworth Frazer Ltd, which had supplied the valve, into the proceedings until May 1999. The third-party notice issued on 9 July 1999.
Clonmel argued that it was reasonable to wait for related health and safety prosecutions. Those proceedings ended with convictions in February 1999, including a finding that Frazer had failed to provide important installation and maintenance information.
Mr Justice Murphy said the criminal case undoubtedly strengthened Clonmel's knowledge and helped it assess the strength of a claim. But the statutory test was not whether Clonmel had achieved certainty. Section 27 of the Civil Liability Act 1961 required a third-party notice to be served "as soon as is reasonably possible".
The court found that Clonmel already knew the relevant condition of the valve and had access by 1995 to the prosecution material and evidence concerning Frazer's role.
It therefore could have made a prudent decision several months earlier. The Supreme Court dismissed the appeal and upheld the High Court order striking out the third-party notice.