Curley v Summerhill Construction Company Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Mark Sanfey
• Judgment Date: 06 March 2023
• Neutral Citation: [2023] IEHC 104
• Court: High Court
• Docket Number: [Record No. 2020/6531P]

Between

Neville Curley

Plaintiff

and

Summerhill Construction Company Limited

Defendant

[2023] IEHC 104

[Record No. 2020/6531P]

THE HIGH COURT

Negligence – Liability – Quantum – Plaintiff seeking damages – Whether the defendant was liable

Facts: The plaintiff, Mr Curley, claimed for injuries and loss while carrying out painting works in a premises on 24 July 2017 in Dungarvan, County Waterford which was being fitted out by the defendant, Summerhill Construction Company Ltd, as a “Starbucks” cafe. The case was heard at the Kilkenny sessions of the High Court over four days in February 2023. Liability and quantum were both contested, and there was a complete conflict of evidence in relation to the central issues of liability. The issue central to the issue of liability in the case was whether the defendant permitted the plaintiff to use a counter as a platform.

Held by Sanfey J that, on the balance of probabilities: the counter was covered in tightly-wrapped black polythene plastic when the spray-painting commenced; that covering was not put in place by the plaintiff or his workmen; and either explicit or implicit authorisation was given by the defendant to the plaintiff to carry out the work in the manner he saw fit, to include standing on the worktop if the plaintiff considered it necessary. Given the deficiencies in the safety and health plan and method statement and the manner in which the plaintiff’s query regarding access to the counter was addressed, Sanfey J was of the view that the defendant was negligent and in breach of statutory duty in contravening s. 12 of the Safety, Health and Welfare at Work Act 2005. Sanfey J did not consider that the defendant took “all appropriate precautions, so far as is reasonably practicable, to ensure that the site is safe and without risk of injury to the safety, health and welfare of persons at work” as required by Article 30 of the Safety, Health and Welfare at Work (Construction) Regulations 2013. Sanfey J held that the plaintiff should have requested a podium ladder, and if one was not provided, should have satisfied himself by every precaution that the counter was a safe surface on which to stand; in the event that he was not so satisfied, he should have refused to mount the counter and demanded an alternative safe methodology. Sanfey J held that the plaintiff’s own failure to provide a method statement setting out his own requirements contributed to the somewhat lax attitude to safety which characterised the dealings between the plaintiff and the defendant on the project. Sanfey J found the plaintiff to be contributorily negligent. Sanfey J found that the defendant was 60% responsible for the accident, with the defendant bearing 40% of the responsibility. Sanfey J held that the plaintiff’s damages would therefore be reduced by the latter percentage.

Sanfey J considered the plaintiff’s injuries to be at the higher end of the “severe and permanent conditions” category in relation to the knee in the Book of Quantum. Sanfey J also took into account the severe pain and discomfort caused by an ulcerated laceration to the plaintiff’s shin. Sanfey J was satisfied that an appropriate valuation of damages in relation to the plaintiff’s injuries, both past and future, to include the lacerated shin, was €90,000. Sanfey J was informed that a figure of €76,491.85 had been agreed by the parties in relation to special damages, subject to one proviso; the schedule included for a figure of “interest on credit union borrowings to date” of €15,961.19. Due to the lack of corroboration of the interest claim, Sanfey J thought it would be fair to the defendant to disallow part of the claim. Sanfey J permitted the plaintiff to recover €9,000 of his €15,961.19 claim. Sanfey J held that the special damages figure would therefore be a total of €76,491.85, less €6,961.19, giving a total of €69,530.66. Sanfey J awarded a total of €159,530.66 (€90,000 plus €69,530.66) in respect of the plaintiff’s general and special damages. In view of Sanfey J’s findings of contributory negligence, he held that this would be reduced by 40%. He therefore proposed making an award in favour of the plaintiff in the sum of €95,718.40.

Damages awarded.

JUDGMENT of Mr Justice Mark Sanfey delivered on the 6th day of March 2023 .

Introduction

1 . This judgment concerns the plaintiff's claim for injuries and loss while carrying out painting works in a premises on 24 July 2017 in Dungarvan, County Waterford which was being fitted out by the defendant company as a “Starbucks” cafe. The case was heard at the Kilkenny sessions of the High Court over four days in February 2023. Liability and quantum were both hotly contested, and unfortunately there was a complete conflict of evidence in relation to the central issues of liability which were left for the court to resolve.

The parties

2 . The plaintiff carries on business as a painting contractor under the name “Midland Painters and Decorators”. He has been in the painting business for 35 years. He carries out all types of painting, and employs other painters to assist him from time to time. The defendant is a substantial building contractor, a family company which is operated by Dan O'Sullivan and James O'Sullivan, sons of the original owner of the company. The defendant mainly carries out refurbishments and fitouts, which may range from large entities such as warehouses and hospitals to smaller concerns such as shops and restaurants. In recent times, this latter aspect has included work done for chains such as Starbucks and Kylemore cafes.

3 . The plaintiff and the defendant developed a working relationship when the plaintiff was recommended to the defendant by a tiling sub-contractor. They had worked together for over three years prior to the incident complained of, and the defendant's witnesses acknowledged that the plaintiff's work had always proved satisfactory in the past. The defendant had in fact previously retained the plaintiff to carry out the painting works for fitouts for – in the estimation of the plaintiff – five or six Starbucks units.

The accident

4 . On 24 July 2017, the defendant was the main contractor in charge of the fitout works in a Starbucks unit in Dungarvan, County Waterford. The plaintiff was engaged to carry out painting works in the premises, and in particular the spray painting of walls and ceilings. The plaintiff attended at the premises at 4.30pm, and had a discussion with James O'Sullivan and Jason Twomey, the defendant's foreman for the job, in relation to the work to be done. This discussion, which was also attended by Mr Clint Cummins, an assistant to the plaintiff, was the subject of intense dispute in the evidence as to what instructions or permission were or were not given by the defendant's representatives to the plaintiff as to whether or not the plaintiff could stand on a counter in order to access parts of the ceiling.

5 . In any event, the plaintiff and Mr Cummins commenced work at approximately 5pm. The ceiling required to be spray-painted. It did not present a uniform surface; certain objects protruded from the ceiling, such as girders and ducting for electrical conduits, and these were not covered by tiles or such like. As these objects required to be painted on all surfaces, including those facing the roof and thus hidden from common view, the sprayers would require extension poles which could be angled in such a way as to reach surfaces that would otherwise be inaccessible. The operation was therefore not entirely straightforward, as the paint was not solely to be projected on to surfaces that presented as flat and facing towards the painters.

6 . The situation was complicated further by the installation of a counter. It emerged in evidence that the counter had arrived about a week earlier, and had been installed together with the counter-top – a quasi-granite substance known as “Corian” – by at latest Friday 21 July. The counter formed the boundary of the working area of the restaurant, and consisted of a broad u-shape projecting out from the back wall of the premises. It was accepted by the defendant that the installation of the counter had occurred somewhat ahead of schedule; however, the evidence on behalf of the defendant was that it should not have presented a problem as regards the plaintiff's access to the ceiling above the working area. The plaintiff on the other hand maintained that, in each of the previous jobs he had done in Starbucks units for the defendant, he had been presented with an empty shell, in which there were no obstructions or difficulties with access to ceiling areas, and that he had expected a similar situation on this occasion.

7 . The plaintiff and Mr Cummins proceeded from the front of the premises towards the back where the working area was, applying primer and spray paint as they went. A scissors lift provided by the defendant was used in this regard. However, the plaintiff said in evidence that he did not consider there to be a sufficient distance between the extreme right-hand boundary of the counter and the side wall of the premises to approach the counter from that side. It was suggested to him in cross-examination that there was in fact ample room to do this, and that the scissors lift had an extension ramp which could project over the counter and provide a platform whereby the ceiling over the counter area could be reached. The plaintiff gave evidence that, while he was prepared to bring the scissors lift parallel to the counter, he was not prepared to manoeuvre it perpendicular to, or facing, the counter, as he was concerned that an accidental contact with the controls could cause the lift to collide with the counter-top, causing damage to an expensive item.

8 . As the scissors lift would not fit behind the counter, and as an “A-ladder” could only fit in that space parallel to the back wall and front end...