Michael Hennigan v Roadstone Wood Ltd

 
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[2015] IEHC 326

THE HIGH COURT

[No.3402 P/2010]
Hennigan v Roadstone Wood Ltd

BETWEEN

MICHAEL HENNIGAN
PLAINTIFF

AND

ROADSTONE WOOD LIMITED
DEFENDANT

2010/3402P - Eagar - High - 21/5/2015 - 2015 IEHC 326

Damages & Restitution – Commercial agreement – Breach of Contract – Misrepresentation

Mr. Justice Eagar
1

This is a claim for damages arising from alleged breach of contract and/or misrepresentation based on an oral agreement made between the plaintiff and the defendant.

2

The plaintiff, Michael Hennigan, is a 57 year old man who in 1995 started working in the Roadstone quarry in Bunratty, Co. Clare, as an employee of a company known as Ward & Ward. In 1995 the defendant company Roadstone hired a loader from Ward & Ward. It appeared that as a result of difficulties arising from unionisation the company sought the use of independent contractors.

3

The plaintiff. Michael Hennigan gave evidence to the effect that he became an independent contractor in his own right in 2000 and purchased a Volvo loader accordingly. It was a 26 tonne loader and he paid IR£60,000 at that time plus VAT. This sum was raised by way of leasing finance from ACC Bank (hereinafter referred to as "ACC"). At that time he was paid IR£22.50 an hour with the euro changeover occurring shortly thereafter. He spent his time as an independent contractor loading exclusively on the top of the quarry in Bunratty.

4

In 2004 the plaintiff decided to upgrade the loader as the other one had been in use for quite a while. He purchased a second-hand, 26 tonne Volvo loader from a man in Co. Westmeath who took the old loader as part payment. Again the finance was dealt with by ACC. In evidence the plaintiff was asked as to whether he had any discussion with anyone in Roadstone before he purchased this loading shovel and he responded that he met with Lee Hankinson, location manager. He asked Mr Hankinson would there be work for the loader and his evidence was that Mr Hankinson said "go ahead, there was no problem, there was loads of work thereö." He also spoke to Lee Hankinson seeking greater hourly remuneration and Mr Hankinson said there was no money there at that moment. At that stage the plaintiff was being paid €31.50 per hour. He further confirmed that Mr Hankinson was a difficult man to negotiate with and was averse to spending excess money however he did make a concession which involved the plaintiff receiving free diesel at the time he purchased the second hand Volvo in 2004.

5

In 2007 the quarry was very busy and there was a huge level of production. This was of course during the economic boom. The plaintiff said that he was working up to 65-70 hours some weeks and a minimum was 50 hours a week. Roadstone was involved with the construction of roads and by-passes in addition to tar and amounts of concrete being transported all over Limerick City and Co. Clare.

6

In 2007 there was a change in personnel and a Mr. John Alderson was appointed as production manager. Mr Alderson's main area of concentration was what was the work at the bottom of the quarry while the plaintiffs work was limited for the most part to the top of the quarry.

7

The plaintiff gave evidence that in June 2007 Mr. Alderson approached him and asked him would he consider buying a new loading shovel. The plaintiff agreed that he would, provided the circumstances were favourable. There was a discussion, according to the plaintiff, as to the rate of pay sought and he said he wanted €45 per hour. According to the plaintiff Mr Alderson reverted a day or two afterwards and said that that rate sought was too high and that he would be going down to the office negotiating on his behalf and he asked would he consider lowering his rate. Accordingly a compromise of €41 per hour was reached.

8

In evidence the plaintiff told the Court that he said to Mr Alderson that the terms and conditions would be that for the duration of the finance agreement over the loading shovel that he would be retained by Roadstone. Mr Alderson acquiesced to this. The plaintiff said "I would have to get the €41 an hour and five years work because that was the term of the finance". He told Mr Alderson that he would need five years work for it because of the terms of the lease of the new loader. And Mr. Alderson agreed to this. The plaintiff also said "I then asked him could I get a contract and he said 'what is the point in a contract? You either trust me or you don't?'" Mr Alderson was also supposed to have said "You wouldn't take on Roadstone if anything went wrong."

9

The plaintiff said that his old loader was working, but was working slowly and as a result of his conversation and subsequent agreement with Mr Alderson he decided to purchase a new machine. As location manager, Mr Lee Hankinson was responsible for handling receipts, time sheets dealing with the financial aspects of the quarry's operations. There were no Volvo machines available. But the plaintiff said that he met with Mr Hankinson a couple of months later and that Gerard O'Dwyer came down with him. Gerard O'Dwyer was the foreman.

10

The plaintiff gave evidence that he and Mr. O'Dwyer went in to the canteen and waited for Mr Hankinson. When he arrived they had a discussion about the machine. The plaintiff raised the issues of the necessity of the 5 years guaranteed work in order to comply with his financial obligations relating to the machine and rates of pay, Mr Hankinson was contemporaneously doing sums in what he thought was a diary but which was actually an A4 copy sheet. This A4 copy sheet was not discovered by the defendant. The plaintiff said Mr Hankinson was doing sums and he said "You could do over the term of it for €39" and the plaintiff did not say anything to him about this but the last thing he said to Mr Hankinson was "It is a five year term - are you agreeing on that?" and Mr Hankinson replied "Go away and purchase your machine. There is no problem". After the meeting the plaintiff met John Alderson and said to him that Lee Hankinson was only giving him €39 and also said to Mr Alderson "I thought we had an agreement?" Mr Alderson assured him he would get his €41 an hour and he went and arranged that and speaking to him two days later and he said that "It is sorted. You have your €41".

11

The plaintiff decided to enter into a leasing agreement with ACC in respect of a Komatsu 28 tonne loading shovel supplied by McHale Plant Sales, Bird Hill Co Tipperary for the price of €284,350 with the plaintiff trading in his existing Volvo machine for which he received an allowance of €56,978.18. He agreed to pay €271,741.80 by way of 60 monthly instalments of €4,529.03 (including VAT) commencing on 25th July, 2007.

12

The plaintiff said for the first year they had plenty of work, it was busy given the economic climate, which was very favourable at the time. They worked long hours and the plaintiff spent the majority of his time at the quarry. A schedule was prepared by Fitzpatrick O'Dwyer, accountants of the plaintiff, detailing his gross income from August 2007 and that showed that the plaintiffs monthly earnings held up broadly about €10,000 up to May 2008 gross. The repayments to ACC were paid out of this. He was also in receipt of free diesel.

13

He spoke to a Mr. John Henchion who is described as the transport manager. He attended a meeting with Mr. Henchion, in the presence of Gerard O'Dwyer. Mr Henchion, in essence, suggested that Roadstone would lease the loading shovel from the plaintiff because there were too many union workers in the quarry who might cause hassle. Mr. Henchion continued that there may not be sufficient work available for the plaintiff but that he would lease the machine to Roadstone who would put one of their drivers on it. For this arrangement it was proposed to pay approximately €5,000 per month to the plaintiff. However nothing came of this arrangement and the plaintiff continued to work as an independent contractor at the quarry. Both Mr Henchion and Gerard O'Dwyer took notes at this meeting.

14

The next development in this matter arose in September 2009 when the plaintiff was called in by Alan Quinn, the area manager and Peter Mahon and informed that there would be no work for him in October. Neither of these men worked in the quarry at the time of the agreement. They told him they were giving him one month's notice but in fact he worked until the 22nd December when he was told that there would be no further work for him. He was told this after a traditional Christmas mass at the quarry. The plaintiff said that the act of termination involved Mr Mahon pulling up alongside the plaintiff and saying "The machine is finished now. You are not to come in here in January at all". That day the plaintiff went to his solicitor, Gerard Howard.

15

I think it is appropriate to look at some of the inter-party correspondence at this juncture. On 22nd December, 2009 Gerard Howard, solicitor wrote to Peter Mahon, location manager, the managing director of Roadstone Provinces Limited, the managing director of Roadstone Wood Limited, all in the same terms that his client was induced based on...

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