326 / 736
should show jurisdiction.
(Attorney-General
[O'Boyle]
v. Healy. Un-
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—
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