The High Court dismissed Pat McCarthy’s personal injuries claim against homeowner Gerry Twomey over an eye injury suffered while McCarthy was plumbing work at Twomey’s home. The court found that Twomey breached a statutory duty to appoint a project supervisor for the construction work, but that the breach did not cause the accident. It also found McCarthy was an independent contractor, not Twomey’s employee.
Mr Justice David Keane delivered the judgment on 25 October 2019. The accident happened on 19 February 2015, while McCarthy was fixing a water pipe to a concrete block wall with a plastic clip and steel nail at a kitchen extension in Shanbally, near Lemybrien, County Waterford. A nail sprang back when he struck it with a hammer and hit his right eye. He was not wearing safety goggles, although he had a pair in his van.
McCarthy had worked as a plumber for more than 35 years and also held full-time employment with Tipperary County Council. He had agreed to install plumbing and heating systems throughout Twomey’s home for an hourly rate, paid directly in cash on completion. Twomey argued that McCarthy was an independent contractor responsible for his own work and safety equipment. McCarthy disputed that and pleaded that he was a “de facto employee”.
The judge accepted that the renovation and extension were planned to last more than 30 working days, bringing the project within the relevant 2013 construction regulations. On the balance of probabilities, Twomey had failed to appoint a project supervisor. The court was also satisfied that no health and safety plan or site rules had been brought to McCarthy’s attention.
But the court was not satisfied that the failure caused the injury. The plan template’s example rule required appropriate personal protective equipment to be worn. McCarthy had acknowledged that he did not consider goggles appropriate when hammering a nail and had never worn them for that task. The judge concluded it was not more probable than not that receiving such a general rule would have led him to wear goggles and avoid the injury.
The judge found the plumbing agreement was a contract for services, rather than a contract of service. McCarthy had provided his own tools, took responsibility for his work, needed no supervision and dealt directly with Twomey. Twomey therefore did not owe him the statutory duties imposed on employers.
The court also rejected Twomey’s arguments that delay had prejudiced his defence, that an adverse inference should be drawn from the late letter of claim, and that builder Tom Condon should be treated as a concurrent wrongdoer. The judge concluded that McCarthy’s claim could not succeed and dismissed the proceedings.