Da Silva & ors -v- Rosa Construtores t/a RAC Contractors & ors,  IEHC 732 (2018)
|Docket Number:||2012 9535 P; 2012 9537 P; 2012 9538 P; 2013 12219 P; 2014 2244 P; 2014 3319 P; 2014 9212 P|
|Party Name:||Da Silva & ors, Rosa Construtores t/a RAC Contractors & ors|
THE HIGH COURT
CHANCERY[2012 No. 9535 P.]
JOSE MONTEIRO DA SILVA, NUNO PEDRO GONCALVES LOPES, DAVID SARAIVA MATIAS, ANTONIO BARBOSA MOREIRA, JOSE FRANCISCO OLIVEIRA DA SILVA, JORGE DA SILVA LUIS, JOSE TEIXEIRA GONCALVES, ANTONIO JORGE OLIVEIRA BESSA, FRANCISCO DA COSTA FERREIRA and JOSE LUIS FREITAS LIMAPLAINTIFFS
[2012 No. 9537 P.]CARLOS MANUEL MIRANDA, ALFREDO MARTINS RODRIGUES FERNANDES, VICTOR MANUEL MARQUES DE OLIVEIRA, MARIA PIEDOSA RIBEIRO CARDOSA GASTALHO, FRANCISCO PEREIRA MARTINS, JOSE MARIA COELHO BARBOSA and CARLOS JOSE LONGAPLAINTIFFS
[2012 No. 9538 P.]ARMANDO AGOSTINHO ALVES DA SILVA, ALVARO ABILIO QUEIROS COELHO, HELDER FIGUEIREDO, MARIO AUGUSTO RAMALHO GASTALHO, SAMUEL FILIPE DA SILVA OLIVEIRA, JOSE ANTONIO FONSECA RIBEIRO, ALBERTO BESSA LEITE, LUIS RODRIGUES DIAS MOURATO, JOSE DUARTE MAGALHAES and JOSE MARIA MARTINS VELOSOPLAINTIFFS
[2013 No. 12219 P.]CARLOS MANUEL OLIVEIRA MATOS, CARLOS ALBERTO OLIVEIRA MATOS, RUI MIGUEL DOS REIS SERPA CORTE REAL, MANUEL JOAQUIM ALVES MACHADO FERREIRA, HELDER FILIPE BARBOSA GONCALVES, JORGE ALEXANDRE UMBELINO, AGOSTINHO DA SILVA SAMPAIO, JOSE ALFREDO QUINTANS MAGALHAES and VITOR MANUEL CARDOSA ALMEIDAPLAINTIFFS
[2014 No. 2244 P.]JOSE MANUEL RIBEIRO ALMEIDA, CARLOS MANUEL MONTEIRO, ALBERTO DA CRUZ COELHO, MANUEL ALBERTO PEREIRA DUARTE, JOAO PAULO RODRIGUES LEMOS, SERGIO ANTONIO CARVALHO, JOAO FILIPE OLIVEIRA GONCALVES and VITOR MANUEL FORMOSO PEREIRAPLAINTIFFS
[2014 No. 3319 P.]RAMIRO ABRANTES DO CARMO, MANUEL SEBASTIAO BRAS DE OLIVEIRA and JOSE FERNANDO MAGALHAES DA SILVAPLAINTIFFS
[2014 No. 9212 P.]ANTONIO GERMANO ALVES GUEDES MONTEIRO, ANTONIO GUEDES MONTEIRO and ARTUR JOAO ALONSO MOREIRAPLAINTIFFSAND
ROSAS CONSTRUTORES S.A. T/A RAC CONTRACTORS AND/OR RAC EIRE PARTNERSHIP, CONSTRUCOES GABRIEL AS COUTO S.A. T/A RAC CONTRACTORS AND/OR RAC EIRE PARTNERSHIP and EMPRESA DECONSTRUCOES AMANDIO CARVALHO S.A. T/A RAC CONTRACTORS AND/OR RAC EIRE PARTNERSHIPDEFENDANTS
JUDGMENT of the Hon. Ms. Justice Stewart delivered on the 18th day of December, 2018.
The above entitled matters are linked sets of proceedings, the first three of which were previously heard and determined in the High Court by Keane J. on 18th March, 2016 ( IEHC 152). His decision was mostly affirmed in the Court of Appeal on 4th October, 2017, in a judgment delivered by Hogan J. ( IECA 252). In those cases, the question of general damages for inconvenience, distress and upset was remitted to the High Court for assessment only. These matter will be referred to hereafter as the “old cases”. The four remaining entitled matters were heard in their entirety before this Court (hereafter referred to as the “new cases”). At hearing, the evidence between the old cases and new cases was interspersed. The evidence received by the Court will be set out in summary hereafter and this judgment then itemises the periods for which damages are recoverable.
The plaintiffs are Portuguese nationals. With one exception, they were all construction workers with varying degrees of skill, ranging from general labourers to machine operators. Maria Piedosa Ribeiro Cardosa Gastalho (the fourth-named plaintiff in the second set of proceedings) was married to Mario Agusto Ramalho Gastalho (the fourth-named plaintiff in the third set of proceedings) up until his death. She was employed by the defendants as a cleaner.
The defendants are three Portuguese companies that traded in Ireland as a partnership called RAC Eire, which had its registered office at Mill House, Henry Street, Limerick. RAC Eire traded in the State as a contractor and/or sub-contractor to a consortium known as Bothar Hibernian, itself comprised of three companies, namely Mota-Engil (Portugal) Ltd., Michael McNamara & Co. Ltd. and Coffey Construction Ltd. In November, 2006, Limerick County Council awarded Bothar Hibernian the public works contract to design and build the N7 Nenagh-Limerick High Quality Dual Carriageway. The plaintiffs were hired by the defendants and came to Ireland to work on this project. Each plaintiff was employed for different periods of time between 2007 and 2009. Each had a written contract with the defendants. Most of the plaintiffs do not speak English. Their contracts were written in English and were not translated for them. Most of the plaintiffs signed their contracts in the airport, before they flew to this country.
The background to the plaintiffs’ employment by the defendants in this jurisdiction was set out with great detail in the judgment of my colleague, Keane J., who delivered his decision on 18th March, 2016. I gratefully adopt that outline for the purposes of this judgment. In summary, it appears that, following a complaint to the National Employment Rights Authority (“NERA”), a number of inspections were carried out by NERA at the plaintiffs’ work site. As a result of those inspections, the defendants were deemed to be in breach of numerous employment regulations, including the Organisation of Working Time Act 1997. The defendants’ official work sheets indicated that a working day of 8AM-6PM was in operation. In reality, a majority of the workers worked hours far in excess of that. They also worked for periods during the weekend. The companies were subsequently convicted on three counts by the District Court sitting in Nenagh. Two of those convictions were upheld on appeal. The third was set aside because the company representative who attended court was not named on the company registration paperwork for one of the defendant companies.
The workers i.e. the plaintiffs, were accommodated in a type of compound accommodation, which was effectively a construction of prefabricated buildings that were joined together. This residential site was located near the N7 work site. Numerous plaintiffs gave evidence that they were forbidden to live anywhere other than the compound. Some even suggested that they had been threatened with the termination of their employment if they attempted to leave. Others said that it had been indicated to them that the deductions applied to their salary for this accommodation would continue, regardless of whether they resided in the compound or not.
The Court was provided with an expert engineer’s report from a Mr. Ronald Greene, which describes the working and living conditions that the plaintiffs endured in this compound. Mr. Greene also gave oral evidence at the hearing. In their own oral evidence, the plaintiffs corroborated Mr. Greene’s findings.
There were three to five people residing in spaces that would have served as relatively modest bedrooms if they had been inhabited by one person. Conditions were extremely cramped, with little to no storage space for clothes or personal items and minimal space between the camp style beds that were provided. The layout of the compound was also described by Mr. Greene as a significant fire hazard. Having made the relevant inquiries with Tipperary County Council, Mr. Greene stated that no planning application, environmental assessment or waste discharge licence had been secured for the compound. There was a single communal living/dining area. It was equipped with a completely inadequate set of plastic garden furniture. There was a counter-top kitchen area attached. The cooking facilities provided extended to a microwave and a kettle, but little else. No drinking water was provided. There was a canteen at the work site, which provided a meal during the working week, but no provision was made outside working hours. It is worth bearing in mind that, as far as the companies were concerned, no weekend overtime ever took place, so food would not have been provided during that time. Some plaintiffs purchased portable grills, which they used to feed themselves. They cooked food either in their bedrooms or outside near the laundry facility, in a completely unsafe and unsanitary situation.
To further exacerbate matters, the washing facilities provided by the defendants were unfit for any living thing, least of all human beings. The sewerage and drainage systems were completely unusable. Not only did waste water not drain properly from the facilities but, due to the manner in which the compound was constructed, sewerage often overflowed from the septic tanks. The condition of these tanks, along with the defendants’ obstinate failure to dispose of the compound’s rubbish in a timely fashion, contributed significantly to the strong odour and vermin infestation that plagued the compound and its residents. As the tank overflowed, it would mix with copious diesel run-off from the portable generator that provided electricity to the compound (this same generator was extremely noisy and was located near the plaintiffs’ living quarters, thereby rendering restful sleep an impossibility). This mixture would then enter the local river. From there, the river water would be recouped by the compound’s water system for the plaintiffs to shower in again. This water was often cold, as the hot water would run out after a handful of uses. Numerous plaintiffs described the water as “yellow” and pungent.
In summary, through their feeble attempt to provide washing facilities for dozens of working people, a situation was manufactured wherein human beings were expected to shower in cold, dirty water that had been mixed with diesel and their own sewerage. As the drainage system continued to malfunction, the waste water would pool and several plaintiffs described placing concrete blocks in the bottom of the showers to avoid standing in the foul run-off water. It can come as no surprise that multiple plaintiffs described staining and irritations to the skin, eyes and ears as a result of living in these conditions. A witness by the name of Carlos Manuel Da Costa Silva, who lived in the compound but is not a plaintiff in the new or old cases currently before this Court, described his skin as shedding due to the poor water quality. When he...
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