The Gazette 1967/71

scaffolding erected by plaintiff from materials supplied—did not conform with regulations under Factories Acts. Jury found that plaintiff was an independent contractor and not a servant of de fendant—Butler, J. told jury that defendants were guilty of breach of statutory duty as they were in law occupiers of a factory. On appeal, Walsh, J. giving judgment of Supreme Court held (1) that there was ample evidence to find the plaintiff an independent contractor. The only determining factor in relationship of master and servant is master's right to direct the servant as to how work is to be done—there is no evidence here to that effect. The plaintiff was a sub-con tractor carrying out an essential portion of the work—plaintiff's brother had no contract with defendants. It was also held (2) that these were building operations within the Factories Act 1955. The word "workman" in Regulation 29 does not in clude an independent contractor, but nevertheless an independent contractor is "a person employed'' or a "person working in a factory"—consequently regulation 29 applied to the duty of employers towards independent contractors. The defendants also performed work in so far as they supplied materials and supervised erection of haybarn— consequently subject to regulation 29 injury of plaintiff due to inadequacy of scaffolding—con sequently defendants liable. (3) The jury found defendant 80 per cent, negligent. Plaintiff 20 per cent, negligent—plaintiff held himself out to be an expert—he could have obtained from defendants more material to make scaffolding safe—in this case. There was no reasonable proportion behind jury's apportionment and facts disclosed. The jury should find plaintiff guilty of more substan tial degree of negligence. (4) As to damages, at the time of accident, plaintiff was 22, married with a young family. At hearing, he was 25, earning £20 per week. He could not have pre vented work on ladders. Jury awarded £19,750— past loss of earnings £4,000—pain and suffering; £3,800—loss of amenity; £3.000-£9,000 given for loss of future earnings representing £10 per week, but no evidence given of physical condition consequently damages set aside because unsup ported by evidence. New trial on issue of damages. (Roche v. P. Kelly & Sons—Supreme Court. Unreported—27th March, 1969). BOOK REVIEW MCCARTHY, CHARLES. The Distasteful Challenge. 8vo. pp. 116. Institute of Public Administration, Dublin. 46

should show jurisdiction. (Attorney-General

v. Healy. Un-

[O'Boyle]

reported, 9th June 1955). Order unconstitutional because it discriminates as between Kosher Victuallers and other vic tuallers Plaintiffs claim declaration that the Victuallers'5 Shops (Hours of Trading on Weekdays) (Dublin, Dunlaoghaire and Bray) Order 1948 made under the Shops (Hours of Trading) Act 1938 was re pugnant to the Constitution. By this order, it is an offence for the proprietor of a victualler's shop to open or keep open for the serving of customers on any weekday after 6 p.m. or on Saturdays after 6.30 p.m. In October 1967, plaintiff commenced to keep open his shop at Sutton on Thursdays and Fridays until 9 p.m. and at Finglas on Fridays until 9 p.m. and con tinued on these days to serve customers in the victualling section with fresh meat until 9 p.m. Summonses were issued that the order had been contravened. In the definition of "Victualler's Shops" in the order there was an important exception made, viz. any shop in which the business carried on is that of selling meat killed and prepared by the Jewish ritual method, in other words, Kosher meat shops. The plaintiff contended that this exception made the order repugnant to the Constitution and in particular to Article 44, Section 2, Subsection 3, which reads that the State shall not impose any disabilities or make asy discrimination on the grounds of religious profession, belief or status. Held that the order impugned clearly dis criminates as between proprietors or shops selling only Kosher meat and other victualler's shops and is unconstitutional. The fact that it was intended to help the Jewish community was irrelevant. (Quinn's Supermarket v. Attorney-General— High Court (McLoughlin, J.)—1st July 1968). Servant or independent contractor? Damages Plaintiff falls during erection of haybarn—alleges negligence and breach of statutory duty, (Build ing (Safety. Health and Welfare) Regulations 1959). Plaintiff, 25, skilled in erection of hay- barns—defendants delivered haybarns to site in Co. Offaly—£300 to be paid to plaintiff for erection. No travelling expenses or social welfare contributions—accident occurred at work at Carrigaline, Co. Cork in September 1965—no time fixed for completion of job—50 erectors working for defendants all over country—equip ment (jacks, hooks, ladders) supplied by defen dants—plaintiff had his own tools—plaintiff assis ted in work by his brother who paid him—