McCarthy v Twomey [2019] IEHC 719 (25 October 2019)

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JUDGMENT of Mr Justice David Keane delivered on the 25th October 2019

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

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

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

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

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

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

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

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

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

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

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

might improve to 6/36 or 6/24. Mr McCarthy’s vision is 6/6 on the Snellen chart in his

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

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

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

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’

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

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

(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

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

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

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

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,

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

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

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

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

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,

‘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’)

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

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

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

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

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

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

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

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

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

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

“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

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

47. Byrne, Safety, Health and Welfare at Work Law in Ireland (2nd ed. 2008) states (at p.

‘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.’

48. As Edwards J pointed out in Minister for Agriculture and Food v Barry [2009] 1 IR 215 at

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

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

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

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

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

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

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

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

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

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.

(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

(b) Mr Twomey was not Mr McCarthy’s employer and did not owe him any statutory

proceedings must be dismissed.

Result: Proceedings dismissed

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