McCarthy v Twomey

JurisdictionIreland
JudgeMr Justice David Keane
Judgment Date25 October 2019
Neutral Citation[2019] IEHC 719
Docket Number[2017 No. 3298P]
CourtHigh Court
Date25 October 2019

[2019] IEHC 719

THE HIGH COURT

David Keane

[2017 No. 3298P]

BETWEEN
PAT MCCARTHY
PLAINTIFF
AND
GERRY TWOMEY
DEFENDANT

Personal injuries – Negligence – Breach of duty – Plaintiff seeking damages – Whether the defendant was liable to the plaintiff in damages for personal injury

Facts: The plaintiff, Mr McCarthy, on 19 February 2015, suffered a significant injury while working as a plumber on the construction of a kitchen extension at the home of the defendant, Mr Twomey, when a steel nail that he struck with a hammer, while attempting to secure a water pipe to a concrete blockwork wall with a plastic clip, flew backwards, striking him in the right eye. In the personal injuries summons that issued on his behalf on 10 April 2017, Mr McCarthy claimed that his injury was caused by the negligence, breach of duty, or breach of contract of Mr Twomey, so that Mr Twomey was liable to him in damages for it. Mr McCarthy pleaded that Mr Twomey breached either the general duty of care that he owed to him or one or more of the statutory duties created by the Safety, Health and Welfare at Work Act 2005 (and both the Safety, Health and Welfare at Work (General Application) Regulations 2007 and the Safety, Health and Welfare at Work (Construction) Regulations 2013 made under that Act). More specifically, Mr McCarthy pleaded that Mr Twomey: failed to provide him with a safe system of work; obliged him to work in an unsuitable environment; failed to appoint a project supervisor for the construction of the kitchen extension; failed to carry out a risk assessment or to develop a health and safety plan for that construction work; failed to provide him with appropriate safety equipment in the form of safety goggles or other appropriate eye protection; and exposed him to an unnecessary risk of injury of which Mr Twomey should have been aware. In his defence delivered on 28 July 2017, having first raised certain preliminary objections, Mr Twomey put Mr McCarthy on strict proof of every aspect of his claim, before specifically pleading that Mr McCarthy was working on the renovation and extension of his home as an independent contractor, who held himself out as an experienced plumber with the appropriate expertise to carry out the work unsupervised, and who was responsible for his own system of work, his own work equipment and his own personal protection equipment. Mr Twomey further pleaded that the accident was caused, in whole or in part, by Mr McCarthy’s own negligence, in failing to adopt a safe system of work, failing to take reasonable care for his own safety, and failing to wear safety goggles. In a reply delivered on 22 January 2018, Mr McCarthy denied that he was an independent contractor and introduced the plea that, while carrying on the relevant work, he was a ‘de facto employee’ of Mr Twomey.

Held by the High Court (Keane J) that Mr Twomey did breach the statutory duty incumbent on him as a construction work client to appoint a project supervisor, but that this breach of duty did not cause Mr McCarthy’s accident. Keane J held that Mr Twomey was not Mr McCarthy’s employer and did not owe him any statutory duty as such.

Keane J held that Mr McCarthy’s claim against Mr Twomey could not succeed and that the proceedings must be dismissed.

Proceedings dismissed.

JUDGMENT of Mr Justice David Keane delivered on the 25th October 2019
Introduction
1

On the afternoon of 19 February 2015, Pat McCarthy, the plaintiff in this personal injuries action, suffered a significant injury while working as a plumber on the construction of a kitchen extension at the home of Gerry Twomey, the defendant, when a steel nail that he struck with a hammer, while attempting to secure a water pipe to a concrete blockwork wall with a plastic clip, flew backwards, striking him in the right eye.

2

In the personal injuries summons that issued on his behalf on 10 April 2017, Mr McCarthy claims that his injury was caused by the negligence, breach of duty, or breach of contract of Mr Twomey, so that Mr Twomey is liable to him in damages for it. Mr McCarthy pleads that Mr Twomey breached either the general duty of care that he owed to him or one or more of the statutory duties created by the Safety, Health and Welfare at Work Act 2005 (and both the Safety, Health and Welfare at Work (General Application) Regulations 2007 and the Safety, Health and Welfare at Work (Construction) Regulations 2013 made under that Act).

3

More specifically, Mr McCarthy pleads that Mr Twomey: failed to provide him with a safe system of work; obliged him to work in an unsuitable environment; failed to appoint a project supervisor for the construction of the kitchen extension; failed to carry out a risk assessment or to develop a health and safety plan for that construction work; failed to provide him with appropriate safety equipment in the form of safety goggles or other appropriate eye protection; and exposed him to an unnecessary risk of injury of which Mr Twomey should have been aware.

4

In his defence delivered on 28 July 2017, having first raised certain preliminary objections, Mr Twomey puts Mr McCarthy on strict proof of every aspect of his claim, before specifically pleading that Mr McCarthy was working on the renovation and extension of his home as an independent contractor, who held himself out as an experienced plumber with the appropriate expertise to carry out the work unsupervised, and who was responsible for his own system of work; his own work equipment; and his own personal protection equipment. Mr Twomey further pleads that the accident was caused, in whole or in part, by Mr McCarthy's own negligence, in failing to adopt a safe system of work; failing to take reasonable care for his own safety; and failing to wear safety goggles.

5

In a reply delivered on 22 January 2018, Mr McCarthy denies that he was an independent contractor and introduces the plea that, while carrying on the relevant work, he was a ‘de facto employee’ of Mr Twomey.

The accident and the injury
6

There was no real controversy at trial concerning either the immediate circumstances of the accident or the nature and extent of the injury caused to Mr McCarthy.

7

Mr McCarthy, who was born on 28 February 1957, is a married man with four adult children. He lives in Ballymacarby, County Waterford. Mr McCarthy left school after his intermediate certificate examination to commence a plumbing apprenticeship with a heating and plumbing firm in Clonmel, County Tipperary. After completing that apprenticeship in 1978, he worked for a few different contractors in Waterford City, before applying successfully in 1982 for a position as a plumber with what was then South Tipperary County Council. In 2003, he took up the position of water services manager with that authority, which involves responsibility for the operation of a water treatment plant. At the time of the accident that is the subject of these proceedings, Mr McCarthy was – as he remains - a full time employee with what is now Tipperary County Council (‘the Council’).

8

In addition to his full-time employment with the Council, Mr McCarthy continued to do plumbing work on a registered, self-employed basis, largely consisting of small, domestic maintenance and repair jobs. This was possible because he was on a flexible working-hours (‘flexi-time’) employment contract with the Council. He earned, on average, an additional income of between €5,000 and €7,000 a year from that work.

9

Mr McCarthy first met Mr Twomey in 2013 when, on the recommendation of Tom Condon, a builder and lifelong family friend of Mr McCarthy, Mr Twomey engaged him to work on two jobs in his home; first, the installation of a heating boiler, and second, that of a solid fuel stove. Mr Twomey directly paid Mr McCarthy at a rate of €25 per hour in cash for that work.

10

In January 2015, Mr Condon telephoned Mr McCarthy to ask if he would be interested in carrying out some plumbing work at Mr Twomey's home where Mr Condon had been engaged to renovate the property and to build an extension to the kitchen. On 26 January, Mr McCarthy met with Mr and Mrs Twomey and Mr Condon at the Twomeys’ home, a bungalow, at Shanbally, near Lemybrien, County Waterford. Mr McCarthy agreed to install a new plumbing and heating system throughout the house and extension, for which he was to be paid on completion directly in cash for his hours worked at an agreed hourly rate. Mr McCarthy's own estimate was that the work would take 80 hours. He started on 29 January. There were no plans or drawings.

11

On 19 February, Mr McCarthy arrived at the house after midday to resume the work. By his estimate, he had already done 60 hours labour and his job was 85% complete. When the accident happened, Mr McCarthy was fixing a water pipe to a concrete block wall with a plastic clip and steel nail, beneath a worktop in the utility room. He was not wearing safety goggles, although he had a pair in his van outside. Mr McCarthy had never worn goggles to fix a pipe to a wall with a clip and nail. He was accustomed to wearing goggles when drilling a hole, punching a hole in a ceiling, or performing similar tasks.

12

Mr McCarthy struck the steel nail with a hammer and it sprang back from the concrete wall, hitting him in the right eye. The sensation was one of severe pain. His vision in that eye disappeared instantly. Part of his iris came out in his hand. He went immediately to the living room where the only other person in the house at that time, John Curtis, a carpenter, was working, and told him what had happened. Mr McCarthy decided to go directly to the nearby town of Dungarvan to have his eye examined by an optician he knew there.

13

Mr McCarthy drove to Dungarvan, though he has no recollection of the journey as he believes he was in shock. The optician told him to go to hospital immediately. He phoned his wife, and his son collected him and...

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