Da Silva v Rosa Construtores t/a RAC Contractors
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 18 December 2018 |
| Neutral Citation | [2018] IEHC 732 |
| Date | 18 December 2018 |
| Court | High Court |
| Docket Number | [2012 No. 9537 P.] [2012 No. 9538 P.] [2013 No. 12219 P.] [2014 No. 2244 P.] [2014 No. 3319 P.] [2014 No. 9212 P.] [2012 No. 9535 P.] |
[2018] IEHC 732
THE HIGH COURT
CHANCERY
Stewart J.
[2012 No. 9537 P.]
[2012 No. 9538 P.]
[2013 No. 12219 P.]
[2014 No. 2244 P.]
[2014 No. 3319 P.]
[2014 No. 9212 P.]
[2012 No. 9535 P.]
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and
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Damages – Interest – Deduction – Plaintiffs seeking damages – Whether it was appropriate to grant an award in aggravated damages
Facts: The above entitled matters were 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. His decision was mostly affirmed in the Court of Appeal on 4th October, 2017, in a judgment delivered by Hogan J. In those cases, the question of general damages for inconvenience, distress and upset was remitted to the High Court for assessment only (the old cases). The four remaining entitled matters were heard in their entirety before the High Court (the new cases). At hearing, the evidence between the old cases and new cases was interspersed. The plaintiffs’ heads of claim comprised of the following: a claim for the underpayment of wages based on the actual hours worked, a claim for the laundry deductions made in breach of contract, a claim for the return of the monies deducted as a “benefit in kind” (BIK) and a claim to general damages under contract for physical inconvenience and mental distress brought about by the poor standard of accommodation. A further claim was made on those amounts for interest under s. 22 of the Courts Act 1981, as well as a claim for aggravated damages. With regard to the plaintiffs in the old cases, their claim primarily revolved around general damages, as the first three heads of claim were adjudicated upon by Keane J at first instance and by Hogan J on appeal.
Held by Stewart J that it was appropriate to award the plaintiffs €1,000 in general damages for each month that they resided in the compound. Stewart J did not think it was appropriate to grant an award in aggravated damages. That said, she was satisfied that it was appropriate to award the plaintiffs interest pursuant to s. 22, insofar as that award had not already been addressed by Keane J. Stewart J held that the interest rate should be applied to the whole sum of each plaintiff’s award. She held that the period over which this interest rate should operate was the date at which the cause of action accrued to the date of this judgment. She held that the applicable interest rate should be 8% per annum up until 31st December, 2016, and 2% thereafter, as envisaged by the Courts Act 1981 (Interest on Judgment Debts) Order 2016.
Stewart J held that she would accede to the plaintiffs’ claims for damages. The quantum of damages in respect of each plaintiff was set out in Appendices 1 and 2 to this judgment; those sums came to a total of €818,081.58. However, Stewart J held that judgment in that amount could not be entered against the defendants; the deduction under the rule in Gourley’s case needed to be applied and a monetary figure of the s. 22 interest owed to each plaintiff also needed to be added to that reduced amount, given the lack of reliable evidence submitted to the Court. Stewart J held that once that assessment was complete, final judgment would be entered against the defendants.
Relief granted.
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 ( [2016] IEHC 152). His decision was mostly affirmed in the Court of Appeal on 4th October, 2017, in a judgment delivered by Hogan J. ( [2017] 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...
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