Davy v Avonmore Creameries Ltd

JudgeMcCARTHY J.,Henchy J.
Judgment Date12 July 1984
Neutral Citation1984 WJSC-SC 1216
Docket Number[S.C. No. 98 of 1983]
CourtSupreme Court
Date12 July 1984

1984 WJSC-SC 1216


Henchy J.

Hederman J.

McCarthy J.

No. 6248P/1980

Subject Headings:

NEGLIGENCE: invitor; owner

STATUTE: statutory duty


Judgment of Henchy J.delivered the 12 July 1984 [HEDERMAN CONCURRING]


Avonmore Creameries Limited ("Avonmore") have a factory at Carrick-on-Suir, Co. Tipperary. In 1979 the roof was in need of repairs. Avonmore engaged one Timothy Emery to do the repairs as an independent contractor. For the sum of £8,533 (plus VAT) he was to weatherproof the roof and cover it with aluminium paint. To help him to carry out the work Mr. Emery engaged one Redmond O'Brien and one James Daly ("the deceased") as subcontractors. They were to be paid £125 each for their services.


The work O'Brien and the deceased were to do was to be done from a forklift. It was to repair the gutters and to apply the aluminium paint to so much of the roof as could be reached from the forklift, using an extended brush. They were not required to goonto the roof at all. Any work that had to be done by going on to the roof was done by Mr. Emery himself. For that purpose he would wear rubber shoes and as a lifeline he would have a rope tied around his waist and attached to some secure place. Thus he was protected against serious injury in case he slipped or fell.


One Monday in April 1980 when the work on the roof was in progress and at a time when Mr. Emery was away, O'Brien and the deceased went on to the roof to repair a damaged skylight which one of the Avonmore workers had pointed out to Mr. Emery on the previous Friday. Unfortunately the deceased, who was not using a lifeline, put his foot on a perspex skylight and fell through to the factory floor below. He was fatallyinjured.


The plaintiff in these proceedings is the widow of the deceased. She has claimed damages suffered as a result of his death by herself and the other dependants of the deceased. She has sued only Avonmore, not Mr. Emery, possibly because he is an undischarged bankrupt and a judgment against him would probably not be of any value. The claim against Avonmore has been laid in both negligence and breach of statutory duty. The breach of statutory duty relied on in the High Court was a breach oftheConstruction (Safety, Health and Welfare) Regulations, 1975, but it is now clear that those Regulations do not apply to the circumstances of this case and that the only breach of statutory duty that could apply would be a breach of s. 37 of the Factories Act, 1955.


In the High Court the case was tried by a judge without a jury. No finding was made by the judge on the issue of breach of statutory duty, but he found that the fatal accident was the result of negligence on the part of Avonmore and contributory negligence on the part of the deceased. Eault was apportioned as to 80 per cent on Avonmore and 20 per cent on the deceased. Avonmore now appeal against the finding of negligence against them and against the sums awarded to the variousdependants.


I am satisfied that the finding of negligence against Avonmore cannot stand. It is clear from what I have said as to the basis on which the deceased was engaged by Mr. Emery that he was not an employee of Avonmore. He was a subcontractor engaged by Mr. Emery to do work that did not require him to go on to the roof. O'Brien gave evidence that the deceased had said that someone had asked him to fix the damaged skylight in the roof, butAvonmore disposed of that evidence (if admissible evidence it was) by calling every employee of theirs who might have requested the deceased to fix the skylight and showing that no such request was made on theirbehalf.


The judge, however, found that the deceased had an implied invitation to go on to the roof to fix the skylight. I do not think that this finding was open on the evidence. I would say that any implied invitation to the deceased was to go to whatever part of the factory it was necessary for him to go for the purpose of doing the work he was engaged by Mr. Emery to do. For example, if he had been expressly debarred by his contract with Mr. Emery from going on to the roof and had done so nevertheless, he could not be said to have been an invitee of Avonmore when on the roof, for although Avonmore had an interest in having the skylight repaired, an implied invitation to go on to the roof to do the repairs could be inferred only in favour of those whose job it was to do suchrepairs.


What right, then, had the deceased to go on to the roof to do repairs? We have not, of course, the deceased's version of things, but we have the evidence of O'Brien and Mr. Emery. They agree that O'Brien and the deceased were engaged, for the sum of£125 each, to do the same type of work, namely to repair the gutters and to spread the aluminium coating on so much of the roof as could be reached from a forklift. Whatever work was done on the roof was done by Mr. Emery, wearing rubber shoes and secured by a lifeline. Neither O'Brien nor the deceased had set foot on the roof before the day of the fatal accident. That was a Monday. On the previous Friday, when Mr. Emery learned of the damaged sky-light, he said he would fix it in the following week. His evidence then contains the following importantpassage:


"I also told [the deceased] that I would be up on Monday and bring some extra polythene to put in a new roof light in that area because I was certain I wouldn't have enough of material on hands to do it. I went away. I was in a hurry to get back [home]. I said "I will do it on Monday". I would ring before I came up to Carrick-on-Suir and I did ring".


In the light of that evidence it is difficult to see how the deceased or O'Brien could have thought they had any authority from Mr. Emery to go on to the roof to repair the damaged skylight. The matter seems to be put beyond doubt by the following answers given by O'Brien to questions put to him by the plaintiff'scounsel:

"Q. This skylight, was it outside the thing you were going todo?

A. Yes

Q. Was it outside your contract?

A. Yes, we were supposed to do [only] the coating.

Q. Who was going to pay for it?

A. We thought we would get something [from] Mr. Emery when he cameback.

Q. You thought you were to do it for Mr. Emery?

A. We thought we would get paid off him".


I find the evidence coercive of the conclusion that O'Brien and the deceased were not expected, and could not reasonably have believed that they were expected, to go on to the roof on the Monday to repair the damaged skylight. On the contrary, they must have known that it was a task which Mr. Emery had reserved for himself and that in fact he was due to come and do it later on the day of the fatal accident. They took the chance of going on to the roof to do the job which was outside the range of their contract, in the hope that they would do it without mishap and that Mr. Emery would give retrospective approval to their venture andpay them for it.


However, even if it could be deduced from the evidence that the deceased was an invitee of Avonmore on the roof when the fatal accident took place, I do not think the claim that his death was caused by Avonmore's negligence could succeed. Whether invited to do so or not, he went on to the roof to repair a damaged perspex skylight. The particular perspex skylight on which he put his foot was plain to see. In fact he had safely gone past it on two earlier visits to the roof on the day of the accident. It could not be said to have been a hidden or unusual danger. In all the circumstances, whether the deceased be accounted an invitee, a licensee or a trespasser, I do not consider that his fatal accident could be attributed to negligence on the part of Avonmore.


The plaintiff's claim has been alternatively based on breach of statutory duty. As I have already pointed out, the relevant statutory duty is that to be found in s. 37 of the Factories Act, 1955:


2 "(1) There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work.


(2) Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety".


Before the plaintiff could successfully invoke subs. (1) it would have to be shown that the roof was a place where the deceased had towork, and before subs. (2) could be relied on, that the roof was a place where he was to work. In either case it would have to be established by evidence that, at the least, the deceased was expected to work on the roof. Unfortunately, the evidence led to the opposite conclusion. Not alone had neither O'Brien nor the deceased previously gone on to the roof to do any work, or been asked to do so, but it was the declared intention of Mr. Emery that he alone would go on to the roof to do the work which led to the fatal accident. That work was gratuitously undertaken by O'Brien and the deceased and it was unquestionably outside the range of the services they had been engaged to carry out. Accordingly, I think it must be held that since the roof was not a place where the deceased had to work or was towork, a plea of a breach ofstatutory duty under s. 37 cannot be successfully made out.


Since, in my view, the evidence at the trial did not support the claim either as founded on negligence or as a breach of statutory duty, and since I find nothing to support an expectation that the plaintiff's case would be any stronger after a retrial, I would with regret allow the appeal and dismiss the claim.


JUDGMENT delivered the 12th day of July 1984by McCARTHY J.



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