Galvin v Minister for Industry and Commerce and Higginbotham

• Jurisdiction: Ireland
• Judgment Date: 06 April 1932
• Docket Number: (1932. No. 489.)
• Date: 06 April 1932
• Court: High Court (Irish Free State)

Galvin v. Minister for Industry and Commerce and Higginbotham

In the MATTER of the NATIONAL HEALTH INSURANCE ACTS, 1911 to 1920; JAMES GALVIN and JOHN GALVIN, Personal Representatives of AIDEN ROCHE

Deceased

and

THE MINISTER FOR INDUSTRY AND COMMERCE and THOMAS HIGGINBOTHAM

(1932. No. 489.)

Insurance (National Health) - Insured person - Employment - Contract of service - Factor hiring boat to fisherman - Crew selected by the hirer of boat - Remuneration of crew by share in profits - Liability of factor for National Health Insurance contributions in respect of crew - Practice - Costs - National Insurance Act, 1911 (1 & 2 Geo. 5, c. 55), sect. 1,sub-sects. 1 and 2, Sch. I, Part I (a)—Rules of the High Court and Supreme Court, 1926, Or. XXII, rr. 3, 8.

R., a salmon factor, was the owner of several bouts used for the purpose of salmon fishing. At the beginning of a fishing season R. let a boat to one, B., who proceeded to select a crew of two others, one of whom was H., and proceeded to fish in the ordinary way. R. was not sware that H. was a member of the crew of the boat. All fish caught had to be handed over to R. who sold them, retaining one-fourth of the proceeds of the sale of the salmon, and handing over the remaining three-fourths and the proceeds of the sale of any other fish caught to B. B. then divided all he received with the crew in proportions arranged between themselves. R. had no part in the arrangement between B. and the crew as to payment, and was not concerned as to how the money was disposed of. In the event of no fish being caught R. received nothing and made no payment to B. or to the crew, and if B. failed to take the boat out to fish, R. could take it away from him. All repairs to the boat, nets and fishing tackle were done by R. at his own expense, but B. had full control over its management, the part of the river to be fished, etc., and could dismiss any of the crew, who had to obey his orders.

Held, on appeal from the National Insurance Commissioners, that there was no contract of service between R. and H., and that consequently R. was not liable for insurance contributions under the National Insurance Act, 1911, in respect of H.

Costs were awarded against the Minister for Industry and Commerce, who appeared in support of the decision of the National Insurance Commissioners.

Appeal from a decision of the National Insurance Commissioners, dated December 17th, 1931.

James and John Galvin, as personal representatives of Aiden Roche, deceased, applied on September 3rd, 1931, under sect. 66, sub-sect. 1 (a), of the National Insurance Act, 1911, as amended by sect. 10, sub-sect. 1, of the National Health Insurance Act, 1920, and under sect. 27, sub-sect. 2, of the National Insurance Act, 1913, for the decision of the National Insurance Commissioners as to whether or not one, Thomas Higginbotham, was employed by the said Aiden Roche within the meaning of the said Acts. The Commissioners fixed the 16th day of November, 1931, at Wexford, for the hearing of the application, at which time and place the application was duly heard. Pursuant to the hearing, the Commissioners, on December 17th, 1931, decided that the employment of Thomas Higginbotham, under the conditions set out in the application and in the evidence given at the hearing was employment within the meaning of the National Health Insurance Acts in respect of which the representatives of Aiden Roche were liable for the payment of contributions.

Pursuant to leave granted by the Court, extending the time for issue, a summary summons was issued by James and John Galvin appealing from the decision of the Commissioners. The summary summons stated that the appeal would be grounded on the Commissioners' decision, the application and the notes of the evidence given at the hearing therein mentioned and on the finding of the Commissioners as set forth in a statement, dated January 27th, 1932, which contained a summary of the evidence given at the hearing, furnished to the applicants by the Chief State Solicitor, if the same could be relied upon and taken into consideration on the hearing of the appeal. The appellants'...