Roche v P. Kelly & Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 27 March 1969
• Date: 27 March 1969
• Docket Number: [1964. No. 1072 P.]
• Court: Supreme Court

Supreme Court

[1964. No. 1072 P.]

Roche v. P. Kelly & Co. Ltd.

PATRICK ROCHE

Plaintiff

and

PATRICK KELLY AND COMPANY LIMITED

Defendants.

Employer - Workman - Sub-contract - Contract for services - Whether plaintiff a servant of employer or an independent contractor - Building regulations - Breach of employer's statutory duty - Whether plaintiff had a cause of action for his injuries - Apportionment of fault - Proof of damages - Building (Safety, Health and Welfare) Regulations, 1959 (S.I. No. 227of 1959), reg. 29 - Factories Act, 1955 (No. 10 of 1965), s. 88.

Appeal from the High Court.

The plaintiff's action was tried before Mr. Justice Butler and a jury on the 23rd-25th, and 28th November, 1966.

The Building (Safety, Health and Welfare) Regulations, 1959, in Regulation 2 define the term "building site" as any place or building where operations, to which the said Regulations apply, are carried on. Regulation 3, para. 1, provides as follows:—

"3.—(1) These Regulations shall apply to—

• (a) the following building operations where undertaken by way of trade or business, or for the purpose of any industrial or commercial undertaking or by or on behalf of the State or any local or other public authority, namely, the construction, structural alteration, repair or maintenance of a building (including re-pointing, re-decoration and external cleaning of the structure), the demolition of a building and the preparation for, and laying the foundation of, an intended building . . . and

• (b) machinery or plant used in those operations, but shall not apply to the work of steeplejacks in the maintenance or repair of spires, steeples, chimney stacks, cooling towers and similar structures."

Regulation 4 provides that suitable and sufficient material, including ladders, shall be provided on the building site for the construction of scaffolds and that the material shall be sound, of good quality and properly maintained; it also provides that, in the construction of a scaffold, sufficient and suitable material shall be used and that all practicable steps shall be taken to secure and maintain the stability of the scaffold having regard to all the circumstances of the case; and it also provides that suitable and sufficient scaffolding shall be provided for all building operations that cannot be carried out safely without scaffolding.

Regulation 29 provides as follows:—

"29.—(1) Every employer undertaking building operations to which these Regulations apply shall comply with such of the requirements of the Regulations as affect any workman employed by him or as relate to any work, act or operation performed or about to be performed by the employer.

(2) Every person employed in building operations to which these Regulations apply shall comply with the requirements of such of these Regulations as require the performance of an act by him, shall co-operate with the person undertaking the operations in carrying out these Regulations and shall report to that person or to his foreman any defect he may discover in the machinery, plant, scaffolding or appliances used in connection with the operations.

(3) A person employed in building operations to which these Regulations apply shall not interfere with, take away or destroy any of the equipment or safeguards required by these Regulations without the authority of the person undertaking the operations or of his foreman."

The defendants, having contracted with a farmer to build a hay barn for him on his lands, agreed with the plaintiff for consideration that he should construct the barn with material supplied by the defendants and in accordance with their requirements. The plaintiff fell from scaffolding during the construction of the barn and suffered personal injuries. In the plaintiff's action before a judge and jury in the High Court, the jury found that the plaintiff had been an independent contractor, that the defendants had been in breach of statutory duty, that the plaintiff had been negligent and that 80% of the fault for the accident was attributable to the defendants. The jury also assessed damages and judgment was entered for the plaintiff accordingly. On appeal by the defendants it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Haugh, Walsh, Budd and FitzGerald JJ.) in allowing the appeal in part, 1, that there was ample evidence to support the finding that the plaintiff had been an independent contractor.

2. That, notwithstanding such finding, the plaintiff had a cause of action since the defendants had undertaken building operations as "employer"and were bound to comply with the relevant building regulations relating to "any work, act or operation performed or about to be performed by the employer" as required by Regulation 29 of the Building Regulations of 1959; but that the plaintiff had not been a "workman employed" by the defendants within the meaning of that Regulation.

Herbert v. Harold Shaw Ltd. [1959] 2 Q.B. 138;

Daly v. Greybridge Co-operative Creamery Ltd. [1964] I.R 497 and

Donaghey v. Boulton and Paul ltd. [1967] 3 W.L.R. 829 considered.

3. That there should be a retrial on the issues of apportionment of fault, and of damages, as the jury's apportionment of fault was grossly disproportionate in the light of the facts established by the evidence, and because the plaintiff had failed to adduce any evidence of his present earning capacity so as to enable his future loss of earnings to be calculated.

O'Leary v. O'Connell [1968] I.R. 149 considered.

Cur. adv. vult.

Ó Dálaigh ó dálaigh C.J.:—

I have read the judgment which Mr. Justice Walsh is about to deliver and I agree with it. Mr. Justice Haugh, who is unable to be present, has authorised me to say that he also has read and agrees with that judgment.

Walsh J.:—

Basically this action is one for damages for personal injuries suffered by the plaintiff when he fell during the course of the erection of a hay barn. He alleges that his injuries were due to negligence and breach of statutory duty on the part of the defendants. The statute in question is the Factories Act, 1955, and in addition the plaintiff relies upon the provisions of the Building (Safety, Health and Welfare) Regulations, 1959. These Regulations were made by the Minister for Industry and Commerce by virtue of the operation of s. 88 of the Act of 1955. One of the questions which the jury had been called upon to determine was the question of whether the plaintiff was a servant of the defendants or whether he was an independent contractor. The plaintiff contended at the trial that he was a servant but in the alternative also contended that, if he were an independent contractor, he was also entitled to the benefits of the relevant statutory provisions and regulations. The jury found that he was an independent contractor, though it is proper to mention that they did so virtually upon a direction of the trial judge. The jury found the defendants guilty of a breach of statutory duty and found that the plaintiff had been negligent. The jury assessed damages in the sum of £19,750 but on the question of the apportionment of the degrees of fault they attributed 80% of the fault to the defendants and 20% to the plaintiff. Accordingly, judgment was entered for the plaintiff in the sum of £15,800.

The defendants are hardware merchants and building contractors and one of their specialties is the work of erecting hay barns. They carry on business at Portlaoise. The plaintiff, who was 25 years old at the date of the accident, was a person skilled in the erection of hay barns and he had considerable experience

of carrying out that type of work, including the erection of scaffolding in connection with such work. The erection of the hay barn in question in this case was not the first work undertaken by the plaintiff for the defendants. The method of erection of the defendants' hay barns was somewhat different from the method used in the other type of hay barn in which the plaintiff was experienced but the difference is of no materiality to the present case.

Prior to the present undertaking, the plaintiff had gone to the defendants seeking work. He explained his experience and satisfied the defendants that he was capable of erecting a hay barn in a proper manner. It was arranged that the defendants would have a hay barn delivered to a site in County Offaly where the plaintiff would commence erecting the hay barn during the following week. The defendants' method of providing hay barns for customers is to take an order from a customer and to contract to provide and erect the hay barn on the site selected for a fixed sum. Usually the customer on his part clears the site and opens the foundations and provides gravel and the assistance of unskilled labourers who dig the holes for the supporting columns at the points marked out by the defendants' agent. The actual erection of the hay barn is then carried out by erectors...