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Cite as: [2019] IEHC 719
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THE HIGH COURT
[2019] IEHC 719
[2017 No. 3298P]
BETWEEN
PAT MCCARTHY
PLAINTIFF
AND
GERRY TWOMEY
DEFENDANT
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.
Page 2 ⇓
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
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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 brought him to University Hospital Waterford
(‘UHW’).
14. There, he was operated on under general anaesthetic and 10 sutures were inserted to
repair the laceration to his right eyeball. After the operation, Mr McCarthy remained in
pain and was given morphine. He was discharged from hospital two days later but was
referred to Mr Doris, a consultant ophthalmic surgeon in UHW, who, on examining him on
25 February, found a deterioration in the limited vision in his right eye, together with
extremely high intraocular pressure, an unrepaired central corneal laceration, and a
leakage of lens content into the anterior chamber in that eye. Mr Doris brought Mr
McCarthy directly to theatre and performed a right vitrectomy (removal of the vitreous
humour) and removal of the right lens.
15. Mr McCarthy was later referred to Professor Michael O’Keefe, consultant ophthalmic
surgeon, who examined him on 22 January 2016 and, on 15 March, performed a scleral-
fixated toric intraocular lens implant. That brought about some improvement in the vision
in Mr McCarthy’s right eye, although there was still some astigmatism that Professor
O’Keefe felt might benefit from an excimer laser procedure, which was scheduled to take
place on 14 September. However, that procedure could not proceed on that date because
the controlling software of the excimer laser system was unable to recognise Mr
McCarthy’s right eye in the absence of its pupil. Professor O’Keefe is hopeful that it may
yet be possible to carry out the procedure by modifying that software.
16. For the present, Mr McCarthy has less than 6/60 visual acuity in his right eye, as
measured using a Snellen chart. That is a common type of ophthalmologist’s eye chart,
comprising rows of apparently random letters that decrease in size as the rows descend.
A measurement of 6/60 represents the ability to read only the single large letter on the
top row of the chart from a distance of 6 metres, whereas standard vision measures at
6/6, which denotes the ability to read the letters of the eighth rows down from that
distance or, differently put, the ability to identify the single letter on the top row from 60
metres away. Professor O’Keefe has expressed the view that, if the proposed laser
procedure can be successfully carried out, the Snellen acuity in Mr McCarthy’s right eye
Page 4 ⇓
might improve to 6/36 or 6/24. Mr McCarthy’s vision is 6/6 on the Snellen chart in his
uninjured left eye.
17. Mr McCarthy did not return to part-time plumbing work until nineteen months after the
accident and did not resume his full-time job until April 2017, following a medical
assessment directed by the Council.
18. Mr McCarthy complains that, because of his injury, both his reading and his use of
computers have become slower, and night-time driving has become difficult. He wears
sunglasses because his right eye is now sensitive to light, and he finds driving in bright
sunlight particularly difficult due to the glare or halo effect it creates for the vision in that
eye.
The claim in negligence and breach of duty
19. At the time of the accident, Mr McCarthy was a qualified plumber with over thirty-five
years’ experience. Under cross-examination, he accepted that he conducts his trade
unsupervised and has the expertise to do so, and that he takes responsibility for his own
work. He also acknowledged that, at the time of the accident, he had safety goggles in
his van; that there was nothing to prevent him from retrieving and using them; and that,
had he been wearing them when he struck a steel nail with a hammer against a concrete
blockwork wall, the injury to his eye would not have occurred.
20. What, then, is the basis for Mr McCarthy’s claim that his accident was caused by the
negligence and breach of duty, including statutory duty, of Mr Twomey?
21. Mr McCarthy argues that Mr Twomey owed him various statutory duties in two separate
capacities: first, as a person or client who had commissioned or procured a project for
construction work, namely, the renovation and extension of Mr Twomey’s family home;
and second, as Mr McCarthy’s employer. For ease of reference, I will refer to the two
broad categories of statutory duty thus invoked as ‘the construction work client duties’
and the ‘employer duties’ respectively.
i. construction work client duties
22. The relevant construction work client duties arise in the following way. Under s. 17(1)(b)
of the Safety, Health and Welfare at Work Act 2005 (‘the Act of 2005’), a person who
commissions or procures a project for construction work must appoint in writing a
competent person to ensure, so far as is reasonably practicable, that the project is
constructed to be safe and without risk to health.
23. That duty is more clearly defined in Part 2 of the Safety, Health and Welfare at Work
(Construction) Regulations 2013 (‘the 2013 Regulations’). Under Reg. 6(1)(b) of those
Regulations, a client is required to appoint in writing for every project a competent
project supervisor for the construction stage. The project supervisor for the construction
stage is required, among other things, to develop a safety and health plan for the
construction site (Reg. 16(a)); to include in the plan, rules for the execution of the
construction work for the purposes of the safety, health and welfare of persons at work
Page 5 ⇓
(Reg. 16(e)); and to ensure that the plan and any rules contained in it are in writing and
that they are brought to the attention of all contractors and other relevant persons who
may be affected by them (Reg. 16(f)).
24. Under s. 58(6) of the Act of 2005, regulations made under that Act may exempt from all
or any of its provisions any specified class of work activity, or any specified class of
person or place of work, where the Minister is satisfied that the application of those
provisions is unnecessary or impracticable and that adequate protective measures are in
place. Regulation 6(6) of the Safety, Health and Welfare at Work (Construction)
Regulations 2006 provided just such an exemption in respect of a construction work
project commissioned by a person in relation to that person’s domestic dwelling. That
exemption was removed by Reg. 3(b)(ii) of the Safety, Health and Welfare at Work
(Construction) (Amendment) Regulations 2012.
25. A different type of exemption is created by the 2013 Regulations. Under Reg. 6(5) of
those Regulations, the requirements imposed upon a client under Reg. 6(1), including the
requirement to appoint a project supervisor for the construction stage, do not apply
unless more than one contractor is involved, or Reg. 10 applies. Regulation 10 applies
‘[i]f construction work is planned to last longer than 30 working days or the volume of
work is scheduled to exceed 500 person days.’
26. In his evidence to the court, Mr McCarthy stated that the renovation and extension work
on Mr Twomey’s home involved building, carpentry and electrical work, in addition to his
plumbing work. There were a lot of alterations, including the installation or replacement
of floors, doors and fireplaces. By Mr McCarthy’s estimate, there would have been six
persons working on the project in total and the construction work would have lasted
approximately four or five months.
27. Michael Fogarty, a chartered engineer, gave independent expert evidence on behalf of Mr
McCarthy. Mr Fogarty expressed the view that the construction of the extension would
have involved digging the foundations; laying the new blocks; taking off the old roof and
realigning it with the new structure; and then replacing the roof. In Mr Fogarty’s opinion,
the project would have taken a couple of months.
28. No evidence was adduced at trial on behalf of Mr Twomey.
29. Thus, on the balance of probabilities, I am satisfied that the construction work involved in
the renovation and extension of Mr Twomey’s home would have been planned to last
longer than 30 working days, bringing the project within the scope of the 2013
Regulations.
30. Interestingly, in his written legal submission, Mr McCarthy advances the alternative
argument that the construction work at issue comes within the scope of the 2013
Regulations because more than one contractor was involved, instancing the involvement
of both Mr Condon, the builder, and Mr Curtis, the carpenter, as that of separate
‘contractors’. A contractor is defined under Reg. 1 to mean ‘(a) a contractor or an
Page 6 ⇓
employer whose employees undertake, carry out or manage construction work, or (b) a
person who – (i) carries out or manages construction work for a fixed or other sum, and
(ii) supplies materials, labour or both, whether the contractor’s own labour or that of
another, to carry out the work.’ If Mr Curtis, the carpenter, falls within that definition, it
is difficult to see how Mr McCarthy, the plumber, does not.
31. In any event, having concluded that the construction work on Mr Twomey’s bungalow fell
within the scope of the 2013 Regulations, I am further satisfied that whether or not Mr
Twomey, as client, had appointed in writing a project supervisor for the construction
stage (although there is no reason to believe that he had), and whether or not that
person had, in turn, prepared the required health and safety plan including the
appropriate safety rules (which seems unlikely), there is no doubt that no such plan and
rules were brought to the attention of Mr McCarthy.
32. I am prepared to accept, on the balance of probabilities, that the said failure was the
result of Mr Twomey’s failure, in breach of his statutory duty under Reg. 6(1) of the 2013
Regulations, to appoint a project supervisor for the construction stage, whose statutory
duty it would have been under Reg. 16 to develop a health and safety plan; to include in
it appropriate safety rules; and to bring it to the attention of Mr Twomey.
33. The key question, then, is whether that breach of duty caused Mr McCarthy’s accident.
Simply put, Mr McCarthy must still establish that, on the balance of probabilities, his
accident would not have occurred ‘but for’ the failure to bring to his attention a health and
safety plan, containing the appropriate safety rules, that had been developed by a project
supervisor for the construction stage, duly appointed in writing by Mr Twomey.
34. In his written legal submissions, Mr McCarthy asserts that, had Mr Twomey appointed a
project supervisor at any stage of the process, Mr McCarthy ‘would have been properly
instructed as to the appropriate safety equipment and process that should have been
implemented and the injury would have been avoided.’ Mr Fogarty expressed the view
that the appointment of a project supervisor would have raised ‘the overall safety culture
on site’, giving as an example the contractor who has it in the back of his head that he
should probably be wearing safety goggles for a particular task that he does not see as a
big risk, and who might be more likely to do so if aware that there is a project supervisor
with overall responsibility for site safety. In his written report, Mr Fogarty went further,
expressing the view that:
‘If a project supervisor had been appointed to this site and the plaintiff was then
inducted by the project supervisor in relation to the level of safety expected on the
site before he commenced work and he was provided with the health and safety
plan and the project supervisor was providing a certain level of supervision then, in
my opinion, it is highly likely that the plaintiff, at the time of the accident, would
have been wearing safety glasses and this accident would not have occurred.’
35. However, in giving evidence to the court on behalf of Mr McCarthy, Mr Fogarty referred
to, and produced a copy of, a 2013 publication of the Health and Safety Authority (‘HSA’)
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entitled Guide for Contractors and Project Supervisors Carrying Out Construction Work on
Private Domestic Dwellings; Safety, Health and Welfare at Work (Construction)
Regulations 2013. An appendix to that publication provides a template of a Safety and
Health Plan for a domestic project. Part 4 of that short template document deals with
‘Site Rules’, which are to be inserted by the project supervisor for the construction stage
of the relevant domestic construction works. That part of the template contains a box
captioned ‘safety rules for the execution of the construction work’. In that box, the HSA
provides, among several examples of site safety rules, the following: ‘Appropriate PPE to
be worn.’ PPE is the common acronym, or abbreviation, for personal protective
equipment. The term is defined under Reg. 2(1) of the Safety, Health and Welfare at
Work (General Application Regulations 2007 to 2012.
36. Thus, it seems reasonable to conclude that, if Mr Twomey had appointed a project
supervisor; if that project supervisor had prepared a health and safety plan, including
safety rules; and if that plan and those rules had been brought to the attention of Mr
McCarthy, a careful and thorough reading of that document by him (had that occurred)
would have disclosed no more (and no less) than that he was to wear appropriate
personal protective equipment while working on site.
37. In his evidence, Mr Fogarty also referred to, and produced, a copy of another 2013
publication of the HSA entitled Guide for Homeowners – Getting Construction Work Done
Safely: New responsibilities for homeowners under the Safety, Health and Welfare at
Work (Construction) Regulations 2013. That publication suggests that a homeowner who
has engaged a builder or main contractor to carry out construction work that falls within
the 2013 Regulations would probably appoint the builder as the project supervisor for the
construction stage. In the case at hand, that person would thus have been Mr Condon.
38. Beyond the obligation to bring the health and safety plan, including safety rules, to the
attention of persons on site, I can find nothing in the Act of 2005 or the 2013 Regulations
that requires the project supervisor to conduct any more extensive safety induction
process for those persons.
39. It must be remembered that, as Mr McCarthy candidly admitted in his evidence, he did
not consider that safety goggles were appropriate personal protection equipment when
hammering a nail and had never worn them when doing so. He did accept that it was
appropriate to wear safety goggles when ‘drilling a hole or punching a hole in the ceiling.’
40. While, perhaps understandably, Mr McCarthy was anxious to stress that there was very
little safety training during his apprenticeship as a plumber between 1973 and 1978, he
was obliged to acknowledge that he continued working throughout the following decades,
and that in consequence he had completed two or three Safe Pass courses prior to the
accident. Part 3 of the 2013 Regulations deals with the general duties of contractors and
others. Regulation 25(1) provides that every contractor shall ensure that every person
who works under his direct control: (a) is in possession of a valid safety awareness
registration card (issued on completion of the FÁS (now SOLAS) Safe Pass training
Page 8 ⇓
programme, or equivalent); (b) is in possession of an appropriate valid construction skills
registration card and (c) has received site specific safety induction instructions.
41. I pause here to note that, in an affidavit of discovery sworn on 28 November 2018, Mr
McCarthy averred that he once had in his possession a Safe Pass registration card that
expired in or about July 2014 and that was not renewed until October 2017. Hence, the
case might have been made that the failure to appoint a project supervisor for the
construction stage, led to a failure to comply with the duty of that project supervisor
under Reg. 19(1)(a) of the 2013 Regulations to ensure that Mr McCarthy, as a person at
work on the site, was in possession of a valid safety awareness card (or, it might have
been asserted, to prevent him from working on the site otherwise, in which case the
accident could not have happened). However, Mr McCarthy did not plead or argue any
such case.
42. Hence, whether Mr McCarthy had been made aware during each of the two or three Safe
Pass training courses he had attended that safety goggles are appropriate PPE when
hammering a nail but had chosen never to wear such goggles for that purpose prior to the
accident, or had not been made aware on those courses that such goggles were
appropriate PPE when hammering a nail, I cannot be satisfied in either case that, had a
safety statement including a rule that ‘appropriate PPE must be worn’ been brought to his
attention at the commencement of the plumbing work on the renovation and extension of
Mr Twomey’s home, it is more probable than not that he would have read that rule and
taken it as his cue to wear safety goggles whenever hammering a nail in the course of
that work.
43. The facts and circumstances of this case are quite different from those that were at issue
in Mulligan v Laurence Mechanical Services Ltd & Anor. (Unreported, High Court, 23 July
2003). In that case, de Valera J concluded that the failure of the relevant defendant to
appoint a project supervisor for certain construction works had led to its failure to identify
the inadequacies in the use of a forklift truck, which – in turn – led to the plaintiff’s
accident. Mr McCarthy urges the same analysis and the same conclusion here. But there
are two significant differences between that case and this one. The first is that, in
Mulligan, de Valera J was solely concerned with the issue of blameworthiness between the
defendants and not with the issue of causation between the plaintiff and defendants. The
second and more significant difference is that, in Mulligan, the court was satisfied that the
failure to appoint a project supervisor had caused the accident, whereas I cannot be
satisfied of that on the evidence in this case.
ii. employer duties
44. In his defence, Mr Twomey pleads that Mr McCarthy was an independent contractor at the
material time. In the reply that he delivered to that defence, Mr McCarthy has pleaded
that he was a de facto employee of Mr Twomey.
45. The significance of the issue is this. The most extensive statutory duties identified under
the Act of 2005 are those of employers. Section 8(1) of that Act provides that ‘every
Page 9 ⇓
employer shall ensure, so far as is reasonably practicable, the safety, health and welfare
of his or her employees.’ Without prejudice to the generality of that obligation, s. 8(2)
provides that an employer’s duties extend to, among other matters: providing a safe
place of work; providing a safe system of work; providing the information, instruction,
training and supervision necessary to ensure employee safety; and providing the suitable
protective clothing and equipment necessary to ensure employee safety.
46. Section 2(1) of the Act of 2005 provides the following relevant definitions:
‘“employee” means a person who has entered into or works under (or, where the
employment has ceased, entered into or worked under) a contract of employment
and includes a fixed-term employee and a temporary employee and references, in
relation to an employer, to an employee shall be construed as references to an
employee employed by that employer;
“employer”, in relation to an employee - (a) means the person with whom the
employee has entered into or for whom the employee works under (or, where the
employment has ceased, entered into or worked under) a contract of employment,
(b) includes a person (other than an employee of that person) under whose control and
direction an employee works, and (c) includes where appropriate, the successor of
the employer or an associated employer of the employer;
and “self-employed person” means a person who works for profit or gain otherwise
than under a contract of employment, whether or not the person employs other
persons.’
47. Byrne, Safety, Health and Welfare at Work Law in Ireland (2nd ed. 2008) states (at p.
60):
‘The key element of these definitions is that an employee is an individual who has
entered into a contract of employment with an employer. A contract of
employment is the equivalent of a “contract of service”, as opposed to the
arrangement which would be made by a self-employed person, or independent
contractor, who enters into a “contract for services” with an organisation.’
239, there is no single overarching test for determining whether a contract is one ‘of
service’ or ‘for services’. Various principles have been identified to assist in the proper
characterisation of such contracts but, as Edwards J observed, none of those principles
constitutes a ‘test’ in the generally understood sense of that term, namely, ‘that it
constitutes a measure or yardstick of universal application that can be relied upon to
deliver a definitive result.’
49. One significant aspect of the question is whether the person concerned was in business on
his own account. Mr McCarthy described himself in his evidence to the court as a plumber
who worked as an independent contractor, and who was registered as self-employed. In
Page 10 ⇓
that capacity, he did small domestic work for many different customers. By way of
example, he had done two separate jobs for Mr Twomey in his home in 2013; the
installation of a new heating boiler and that of a solid fuel stove. All such work was quite
separate from his full-time permanent employment as a water services manager with the
Council.
50. The work for Mr Twomey that Mr McCarthy had largely completed at Mr Twomey’s home
between 29 January 2015 and the 19 February 2015 (when the accident occurred)
involved the installation of a new hot and cold water plumbing system and a new central
heating system throughout the bungalow, including the new kitchen extension. Mr
McCarthy provided his own tools and equipment for the job, including safety goggles. Mr
McCarthy sourced the necessary materials on Mr Twomey’s account at a builders
providers or hardware merchant in nearby Dungarvan, including the plastic clips and steel
nails one of which he was using when the accident occurred. In evidence, Mr McCarthy
acknowledged that he was responsible for his own system of work in that he took
responsibility himself for what he did on site. He did not require supervision and dealt
directly with the homeowner without any intervening control.
51. In carrying out the job, Mr McCarthy worked directly for Mr Twomey, meaning only that,
although Mr Condon, the builder, had introduced the two men, Mr McCarthy did not report
to Mr Condon. Mr Twomey works in Dungarvan and he left the house early each
morning. When he returned home at lunchtime and in the evening, the two men
discussed the plumbing work, in so far as was necessary. When more immediate issues
arose, they communicated by phone or text. Their agreement was that Mr Twomey would
pay Mr McCarthy directly in cash on the completion of the work. Such arrangements are
just as consistent with the relationship of tradesman and householder as they are with
that of employee and employer, if not very much more so.
52. In my judgment, on the preponderance of the evidence I have just summarised, the
contract between Mr McCarthy and Mr Twomey for the plumbing work on Mr Twomey’s
home was a contract for services and not a contract of service. It follows that Mr Twomey
was not Mr McCarthy’s employer and did not, in consequence, owe him any of the
statutory duties that an employer owes to an employee under the Act of 2005. On the
contrary, by operation of s. 7 of the Act of 2005, the relevant statutory provisions of that
Act applied to Mr McCarthy, as a self-employed person as they apply to an employer, as if
Mr McCarthy was both an employer and his own employee.
53. It is, thus, superfluous to add that, if there had been a contract of service between Mr
McCarthy and Mr Twomey (and I have found that there was not), Mr McCarthy would then
have to contend with the far-reaching consequences in contributory negligence of his own
clear and fundamental breach of the statutory duty on an employee, under s. 13 of the
Act of 2005, to take reasonable care to protect his own safety, health and welfare at
work.
Technical and procedural arguments
Page 11 ⇓
54. In view of the findings I have reached on the merits of the claim, it is not strictly
necessary to consider the various technical arguments that Mr Twomey has raised in his
defence. Nonetheless, I propose to address each briefly in turn.
55. First, Mr Twomey pleads that Mr McCarthy delayed inordinately and inexcusably in
bringing these proceedings, causing Mr Twomey prejudice as a result, since the accident
was not reported to him when it happened and, by the time he was formally notified of Mr
McCarthy’s claim, the locus of the accident had been altered by the completion of the
renovation and extension works. The accident occurred on 19 February 2015; the
suggestion in evidence was that Mr McCarthy had been formally notified of the claim in
December 2016; the Personal Injuries Assessment Board authorised Mr McCarthy to bring
proceedings on 15 February 2017; and proceedings issued on 10 April 2017. The
unchallenged evidence of Mr McCarthy was that he had received a text message from Mr
Twomey commiserating with him on the accident, while in hospital on 27 February 2015.
More significantly, the negligence alleged by Mr McCarthy does not relate to any specific
feature of the locus in quo at the material time, the nature or condition of which is in
dispute. Accordingly, Mr Twomey has failed to persuade me either that there was
inordinate and inexcusable delay in the institution or prosecution of these proceedings, or
that he has suffered any prejudice in the defence of them.
56. Second, Mr Twomey asserts that Mr McCarthy failed to comply with the requirement
under s. 8(1) of the Civil Liability and Courts Act 2004 to serve a letter of claim upon him
within one month from the date of the cause of the action and that it is proper to draw an
inference adverse to Mr McCarthy from that failure. Having heard the evidence and
explanation of Mr McCarthy that he did not immediately seek legal advice, I am satisfied
that it would not be appropriate to draw any such adverse inference. I would add that I
found Mr McCarthy to be a credible and honest witness, who has endured a traumatic
accident that has left him with a permanent disability in his right eye.
57. Finally, Mr Twomey seeks to rely on the alternative plea that, if he has any liability to Mr
McCarthy in negligence, Mr Condon is a concurrent wrongdoer whose negligence
contributed to Mr McCarthy’s damage. Mr Twomey then seeks to rely on s. 35(1)(i) of the
Civil Liability Act 1961, in asserting that, since Mr McCarthy’s claim against Mr Condon is
now statute-barred, Mr McCarthy is deemed by that provision to be responsible for the
acts and omissions of Mr Condon. However, the evidence before the court does not
support the plea that Mr Condon is a concurrent wrongdoer, since no tortious conduct is
alleged – much less, established – against him. Hence, I reject that submission.
Conclusion
58. In summary, I have reached the following conclusions:
(a) Mr Twomey did breach the statutory duty incumbent on him as a construction work
client to appoint a project supervisor, but that breach of duty did not cause Mr
McCarthy’s accident.
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(b) Mr Twomey was not Mr McCarthy’s employer and did not owe him any statutory
duty as such.
(c) For those reasons, Mr McCarthy’s claim against Mr Twomey cannot succeed and the
proceedings must be dismissed.
Result: Proceedings dismissed