Healy v Brody

• Jurisdiction: Ireland
• Judge: MR. JUSTICE K. LYNCH AND A JURY
• Judgment Date: 31 March 1987
• Neutral Citation: 2003 WJSC-HC 5969
• Court: High Court
• Date: 31 March 1987

2003 WJSC-HC 5969

HIGH COURT - GALWAY

HEALY v. BRODY

PATRICK HEALY

PLAINTIFF

EDMOND BRODY

DEFENDANT

1 BEFORE THE HON. MR. JUSTICE K. LYNCH AND A JURYTUESDAY, 31st MARCH and WEDNESDAY, 1st APRIL 1987

TRANSCRIPT OF EVIDENCE (extracts)

2 This is to certify that the following is a true and accurate transcript of extracts from hearing in this action.

APPEARANCES

PLAINTIFF:

MR. D. O'DONOVAN, S.C.

MR. B. FAHY, S.C

MR. C. DOOLLY, B.L.

(Instd. by Messrs. Geraghty & Co., Solrs.)

DEFENDANT:

MR. G. COONEY, S.C.

MR. G. KEYS, B.L.

(Instd. by Messrs. V. P. Shields & Son, Solrs.)

3 (FOLLOWING EVIDENCE HEARD ON BEHALF OF THE PLAINTIFF, AT THE CONCLUSION, MR. G. COONEY, S.C. FOR THE DEFENDANT INDICATED TO THE JUDGE THAT HE HAD AN APPLICATION TO MAKE AND THE JURY RETIRED AT 2.45P.M.)

4 My lord, this case was led at least partly on the basis that the plaintiff was an employee of the defendant and that is stated specifically in the Statement of Claim. I would respectfully submit ay lord on the evidence which was adduced that so far as the plaintiff is concerned, he, in fact, is not an employee but was an independent contractor. The evidence of the plaintiff - his own evidence - was to the effect that he was asked to do a specific job and the price of which was agreed on, after the job was completed. He also stated how he would do the job and it was left to himself entirely. If one applies the test which is laid down by Mr. Justice Walsh in his Judgment of the case of "Roche -v- Kelly", my lord, which is reported in I969 Irish Reports, at page 100. The relevant passage in the Judgment of Mr. Justice Walsh is at page 108 and this starts as follows:-

5 (Counsel, Mr. Cooney, reads:-

"While many ingredients......"

6 Now, my lord, that is the Judgment of Mr. Justice Walsh and in this particular case the plaintiff's own evidence is that Mr. Brody employed this man to remove a building and how he was to do it was entirely a matter for himself. I think, my lord, that it is absolutely clear from the evidence that the plaintiff was an independent contractor and not anemployee.

7 JUDGE: On that, Mr. Cooney, is there not one factor, one pointanyway, which might require explanation and that is that the plaintiff alleges that first he asked Mr. Brody was the roof sound and he, Mr. Brody, said "Yes".

8 Yes, that it was sound, and that was the only time anything was asked or something like that. Even assuming he did, he is an independent contractor in my respectful submission and as an independent contractor the obligation would be on himself. He is an independentcontractor.

9 JUDGE: I suppose would be an occupier or an invitee.

10 There would be an obligation on him to protect himself against unusual danger.

11 JUDGE: I think the Supreme Court has waived that and there is the particular Judgment in that case... I think it was the hotel one and the reference to the maintenance. It was some couple of years ago. I think it was O'Keeffe and he was a trespasser.

12 I think it was "McNamara and the ESB". I think there was the question of trespass and the plaintiff was purely atrespasser.

13 JUDGE: Here, the plaintiff was told that the roof was sound. Your client said that the roof was sound.

14 Well, he said so.

15 JUDGE: Well, it could be claimed that in contradiction of that the plaintiff said the rafters were rotted.

16 He was an independent contractor and was broughtin and before he started the work he himself should have established the roof was sound. Before he starts the work he must establish that it was sound or, as an independent contractor, he must satisfy himself as to the condition of the roof. But, leaving that aside, I would say in this particular instance my lord, the plaintiff as an independent contractor it seems to me he should have satisfied himself whether or not the roof was gone or whether it was rotten or what condition it was in and he neglected to do that. As an independent contractor he cannot shuffle off the blame to somebody else. He was the expert. He must be assumed to be and in that capacity his role was to inspect the roof at any time before he worked and particularly where he was to work. That involved going on the height from which he was to work and from which he might see what was to be done. There was a duty on him to establish the kind of job to be done and that is the kind of yardstick to apply.

17 My lord, Mr. Healy was no such thing as an independant contractor. Sorry, my lord, he was no such thing as an independent contractor but was sought out by the defendants to do this work. First, because they seek a person out, like any householder, to do say painting or that and secondly, to ascertain their willingness to do the sort of work. Mr. Healy did not hold himself out to be an expert but he was sought out by the defendant. The defendant provided him with all the equipment to enable him to do the work. He, Mr. Healy, came with nothing of his own. In this respect I would respectfully submit that by no stretch of the imagination could he be considered to be an independent contractor. In the sensehe is an ordinary contractor on the dole and what happened was the defendant was going to get him to do this work as an employee.

18 JUDGE: There was no evidence of a weekly wage or anything like that.

19 It was, effectively, that there would be a payment for the job. No other estimate or particulars.

20 JUDGE: Although in some cases they get the estimates afterwards.

21 Yes, my lord, and in that he was on the payroll. It was a once off job and if he was on the payroll as an employee and as it was an engineering firm he was on the payroll and it was a sort of lump job, to be paid a price for a lump job.

22 JUDGE: For a lump job is, generally, for an independent contractor.

23 No, not necessarily. A lump job is anor independentperson.

24 JUDGE: That is why steps were being taken by the State to try and bring them into Social Welfare and tax net.

25 I would suggest he is an employee rather than an independent contractor and he had no equipment. He is depending only on his employer to provide him with the necessary equipment to do the particularjob.

26 JUDGE: To that extent he is a contractor.

27 He is provided with the equipment by the employer and he is directed how the work is to be done. Heis provided with three pieces of equipment and they are working pieces of equipment. He was told what work was wanted to be done or warranted being done and that the roof was damaged. I would refer your lordship to the Supreme Court decision in relation to occupiers liability in the case decided by the Supreme Court in December 1985 which is not reported, but in this case the Supreme Court deals with invitees and trespassers. I think it is the "Musgrave" case. I accept that there is an obligation to take care, reasonable care. Even, for the sake of argument, if you assume that at the time he was an independant contractor, the effect of "Roche and Kelly" even if you apply that and one assumes he is independant contractor, the defendants cannot avoid the obligation imposed on them.

28 JUDGE: That is why I wanted evidence of the occupation of the defendant. "Roche and Kelly" turns on the Regulations... Is it No. 29 of the 1959 Regulations - and, on the words of Regulation 29, the Regulation reads:-

29 (Judge reads Regulation 29 referred to)

30 In "Kelly and Roche" they were haybarn manufacturers and the work to be performed was erecting or manufacturing hay-barns or having them erected. In "Roche and Kelly" it was performing the work, which the employers were performing, through him, Kelly.

31 Here was a shed to be demolished or taken asunder by Mr.Healy.

32 JUDGE: Was he employed as an independant contractor to do that job at the time. Mr. Cooney claims that it was a job and he, Mr. Healy, was a person who erected or demolished shedsand it could be said he was performing a job or performing an act thought to be a contract.

33 It is doubtful if the 1975 Regulations contain similar provisions as the 1959 ones.

34 JUDGE: But they do have the definition of Contractor.

35 I would submit that the defendant comes within that definition. The definition of Contractor is (Counsel reads...)Here, my lord, you have a person who provides the equipment and provides the labour through my client.

36 JUDGE: You will see, Mr. O'Donovan, that it is any person who carries out work for a fixed or other sum which is referred to there and such a person is a contractor.

37 That is correct, my lord, but in my respectful submission it says that it is any person who carries out work for a fixed sum and I will read it again my lord. (Counsel reads out extract referred to)

38 JUDGE: Or supplies the labour only.

39 Or supplies the labour only. Mr. Brody, the defendant, has contacted my client to do the job. He wants that job done. He provides the material and provides whatever was required and it was not my client.

40 JUDGE: He is under an obligation. He is obliged to comply with any regulations of any person who carries out work for a fixed sum, as cited in the Regulation or the person supplying labour only. Is your client the contractor?

41 In my respectful submission no my lord. He is carrying out work, the labour. He is not a contractor. I read it differently to the person who carries out work for a fixed or any sum. He issupplying... or he is supplied by the employer.

42 JUDGE: He is a contractor.

43 The defendant is a person who is carrying out his work and who provides his own labour. In my respectful submission the plaintiff is merely performing a job of work which he was asked to carryout.

44 JUDGE: You could say something about the ordinary householder getting work done by one contractor or another.

45 I would say no.

46 JUDGE: Why not?

47 It is a totally different relationship.

48 JUDGE: You rely upon the contract between the parties.

49 I...