Author: Carrie McDermott

The Supreme Court in its recent judgment on the 20^th October 2023 in the matter of The Revenue Commissioners v Karshan (Midlands) Ltd T/A Domino’s Pizza confirmed that delivery drivers should be treated as employees and not contractors.

This is a decision that has important implications for both employers and employees.

The case concerned delivery drivers engaged under contracts in 2010 and 2011 by Karshan (Midlands) Ltd, trading as Dominos Pizza.

The drivers argued they were employees for tax purposes and Karshan said they were independent contractors under “contracts for service”.

Karshan appealed a 2018 decision of a Tax Appeals Commissioner that the delivery drivers should be treated as PAYE workers. The High Court rejected that appeal, but the Court of Appeal, in a 2-1 majority, overturned that decision.

The Revenue Commissioners brought an appeal to the Supreme Court, who in a unanimous verdict overturned the Court of Appeal decision.

Mr Justice B. Murray in his judgment noted that a key factor to the appeal was whether a requirement that the employer and worker owe each other certain “mutual obligations” was necessary to the establishment of the employment relationship.

Karshan’s “theory of mutuality of obligation” was that mutual commitments had to present some type of continuity and to have a forward-looking element. It also argued there had to be an obligation on the part of the employer to provide work and there had to be an obligation on the part of the employee to perform work.

However, Mr Justice Murray said there was no such requirement in Irish law. He indicated the question of whether a contract is one “of” or “for” services should, having regard to well-established case law, be resolved by reference to five questions.

The first three that must be met are:

1. Does the contract involve the exchange of wage or other remuneration for the work?;
2. If so, is the agreement one in which the worker is agreeing to provide their own services and not those of a third party to the employer?;
3. If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?
4. If these three requirements are met, the decision maker must then determine whether the terms of the contract between employer and worker, interpreted in the light of the admissible factual matrix and having regard to the working arrangement between the parties, are consistent with a contract of employment or some other form of contract. Regard must also be had to whether the arrangements point to the putative employee working for themselves or for the putative employer.
5. Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the Court to adjust or supplement any of the foregoing.

In observations accompanying the judgment, Mr Justice Murray noted that the finding that these drivers were employees did not bind any driver who may wish to contend that they were not an employee.

Finally, the question of whether drivers have continuous service for the purpose of other legislation – in particular employment rights legislation – cannot be decided here, he said.

Our Employment Team will be analyzing the judgment to consider the implications for our commercial clients.

 

POST ACCIDENT MEDICAL DISCOVERY  

JAMES EGAN V CASTLEREA CO-OPERATIVE LIVESTOCK MART LIMITED

JUDGMENT OF MS JUSTICE BUTLER DELIVERED ON THE 9^TH DAY OF OCTOBER 2023

The Court of Appeal upheld a High Court Order for Discovery in Personal Injury proceedings which directed disclosure of the Plaintiff’s post-accident medical records.

Proceedings

The accident occurred on the 13^th of November 2017 at the Defendant’s premises being a livestock mart.  The Plaintiff claims to have been standing in a designated safe area when a bullock collided with his left leg and caused him injury.  The Defendant disputes this and denies vicarious liability for the actions of a bullock owned by a Third Party and pleads contributory negligence on the basis that the Plaintiff failed to remain in the safety pens and was standing in a part of the mart where animals were kept, and through which they were moved.

The Plaintiff issued proceedings wherein it was claimed that he sustained a soft tissue injury to his left leg, which was swollen and bruised in the aftermath of the accident, and it was also pleaded that he continued to suffer pain and had difficulty standing, climbing stairs and walking.

Updated Particulars of Personal Injury which radically altered the case were subsequently delivered.  These suggested that the Plaintiff had suffered a far more complex injury, and that his ongoing complaints were due to a combination of his leg injury and his pre-existing back problem, which may or may not have been reactivated by the accident itself.

Discovery

The Defendants sought voluntary Discovery of the Plaintiff’s medical records which included 5 years pre-accident medical records and 5 months post-accident.  The Plaintiff agreed to the pre-accident medical records subject to the qualification that this category would include the Plaintiff’s initial medical attendance post-accident but nothing thereafter.  The Defendant’s subsequently issued a Motion for discovery.

High Court Decision

Judge Twomey ordered that Discovery of the post-accident medical records were both relevant and necessary and concluded that the post-accident medical records were not just relevant but “invariably crucial to every Personal Injuries claim”.  The Court held that such records in this case were particularly relevant, given the possible overlap between the injury suffered to the Plaintiff’s leg on foot of the accident, and his pre-existing back problem.

Court of Appeal Decision

The Plaintiff’s appealed the decision to the Court of Appeal.  Ms. Justice Butler delivered Judgment on the 9^th of October 2023 in the matter and the following was noted:

• The letter seeking voluntary Discovery did establish a sufficient basis for the Court to be satisfied that the discovery of these relevant medical records is, in all other circumstances, necessary.
• The fact that an issue may be the subject of expert evidence at trial does not, in the Judge’s view, preclude the possibility that discovery of documents relevant to the issue, may be properly sought in advance of trail.
• The interaction between the Plaintiff’s pre-existing medical condition and the injuries sustained in the accident was significant in this litigation process and Discovery is intended to aid the opposing party’s preparation for trial.
• The fact that some or all of the discovered material will be provided at trial, does not assist a Defendant for example, in instructing his medical experts prior to the trial taking place.
• There was no evidence before the Court to suggest the Discovery sought would be overly burdensome and the Defendant had limited the period for which Discovery was sought to 5 months after the date of the accident.

The Court of Appeal found that there is no general prohibition on the discovery of post-accident medical records however, it does not follow that such an Order should be made in every case.  It has to be considered whether the documents are relevant to the dispute, and if discovery of the documents is necessary for disposing fairly of the case, or for the saving of costs.

Justice Butler endorsed the reasons advanced regarding the need for discovery of post-accident medical records which centred on the possible overlap between the complaints of leg pain arising from the accident and the pre-accident history of issues with the Plaintiff’s back which made the records particularly relevant in this case.  On that basis the appeal was dismissed.

Conclusion

It was noted that the criteria for Discovery includes the following:

• Necessity for the documents having regard to all the relevant circumstances including the burden, scale, and cost of the Discovery sought.
• There must be some proportionality between the extent of the documents to be discovered and the degree to which the documents are likely to advance the case of the Applicant, or damage the case of his or her opponent, in addition to ensuring that no party is taken by surprise by the production of documents at trial.
• In circumstances a too wide-ranging Order for Discovery may be an obstacle to the fair disposal of proceedings Discovery could become oppressive and it should not allow it to be used as a tactic in war between the parties.

Therefore, there is no general prohibition on the Discovery of post-accident medical records however, this does not mean that an Order should be made in every case.

It has been reported in the Irish Times and various other media outlets that an external review of spinal surgeries is to be carried out by a UK expert, Mr. Nayagam, based in Liverpool, following on from two reviews, both internal and external which were set up to look into the care provided by one consultant to some seventeen patients being children who had undergone complex spinal surgery at Children’s Health Ireland (CHI) in Temple Street.

Worryingly, it has also come to light that unauthorised devices were implanted in three patients during spinal surgical procedures. These two reviews were undertaken after two serious post-operative incidents occurred in July and September 2022.

An analysis of post-operative complications found that:

1. Of the sixteen cases reviewed, thirteen patients required a further unplanned surgery. Tragically, one of these patients subsequently died and this death is currently the subject of a serious investigation.
2. Patients with minor complications who did not require further surgical procedure but who had superficial wound problems were treated with oral antibiotics and wound management undertaken in the Outpatients’ Department.
3. Additionally, nine of the sixteen cases required removal of metalwork arising from mechanical complications of metalwork previously inserted during the spinal surgical procedures. It is understood that the latest external report to be undertaken by Mr. Nayagam will examine the reports already prepared and will also complete a risk assessment of the surgeries undertaken at CHI. It is understood that this report is due to be published by the end of 2023 however this will almost certainly be delayed.

Unfortunately, a growing number of children have been affected and suffered serious complications arising from these procedures having been carried out at both Temple Street Hospital, Crumlin Hospital and Cappagh Hospital.

It is important for families who have concerns regarding their child’s care to take up the relevant medical records and seek expert advice from a team of legal and medical experts to identify any failures or negligence during treatment.

If you would like to arrange a consultation or would like further information please get in touch with Deirdre Rafferty of our office via phone or email deirdre.rafferty@mdmsolicitors.ie

The Work Life Balance and Miscellaneous Provisions, Act 2023 (the “Act”) was signed into law by President Higgins on 4 April 2023. The Act introduces measures which are aimed at supporting employees in Ireland in balancing their family life, work life and caring responsibilities.

Part 1, Part 2, other than sections 7, 8, 12 (a), 13 and 14, and sections 32 to 39 of the Work Life Balance and Miscellaneous Provisions Act 2023 will be commenced on Monday 3 July 2023.

As part of the legislation, there are a number of changes to an employees rights:-

Right to Request Remote Working (Section 20)

Under the new legislation, all employees will have a right to request remote work. An employer will be required to consider such requests in accordance with its needs, the needs of its employees and a new Code of Practice which is being developed by the Workplace Relations Commission.

Right to Request Flexible Working Arrangements for Parents and Carers (Section 13B)

Similarly, the right to request flexible working for parents and carers will be commenced following the preparation of a Code of Practice by the Workplace Relations Commission under Part 4. Employers must consider the request in accordance with its needs, the needs of its employees and must provide reasons if refused.

The employee can only request this leave if the affected person requires significant care or support for a “serious medical reason.” An employer is entitled to request relevant evidence of the serious medical condition such as a medical certificate.

In order for an employee to request flexible working arrangements for the care of a child, the child must be less than twelve years old or less than sixteen years old if they suffer with a disability or long-time illness.

Paid Domestic Violence Leave (Section 7)

The Act introduces this new leave which provides 5 days paid leave for victims of domestic violence. It is envisaged that the leave will allow the affected employee to seek medical advice, legal representation and to engage with specialist support services such as counselling.  The Government has indicated it plans to commence the legislative provisions introducing domestic violence leave in the autumn.

Unpaid Leave for Medical Care Purposes for Parents and Carers (Section 6)

The new right to leave for medical care purposes will give parents and carers access to a flexible short-term form of unpaid leave, providing certainty at difficult moments, should they need it.

Amendments to the Maternity Protection Acts (Section 34)

The entitlement to breastfeeding breaks will be extended from the current period of six months — a time which coincides with maternity leave — up to two years. The Government has outlined that this extension is to support women who continue to breastfeed after their return from maternity leave and is in line with best practices from a public health perspective.

The Act also provides for the extension of maternity leave entitlements to transgender men.

 

The Attorney General, Rossa Fanning, has today published The State Litigation Principles.

These 15 Principles are the first clear statement concerning how the State should conduct litigation and confirm that the State should act honestly, efficiently and in the public interest in the conduct of litigation.

The Attorney noted they are “not intended to radically change how the State conducts litigation”. They do not create rules of law nor do they have any binding legal effect.

The Principles acknowledge that the State cannot be precluded from contesting proceedings, appealing a decision, settling proceedings (with or without admission of liability), relying on legal professional privilege or applying for the recovery of the State’s costs in an appropriate case.

The Principles explain that the State will take steps to avoid, prevent and limit the scope of legal proceedings, wherever this is possible, a policy that is clearly consistent with the policy intent underlying the Mediation Act, 2017. This does mean a greater emphasis on early engagement to try and avoid unnecessary litigation.

The Principles advise that, where appropriate, the State will encourage the settlement or compromise of proceedings by the making of settlement offers, tenders or lodgments.

The Principles also emphasise the importance of adherence to best practice in the discovery process. Once ordered or agreed, the State ought to seek to comply with its obligations in a timely fashion, which can be challenging in cases where discovery is extensive.

The Principles also give guidelines on the role of apologies. There are occasions where the Courts determine the State has acted unlawfully. There are also occasions where it emerges in the course of litigation, without judicial determination, that the State has acted unlawfully. In an appropriate case where the circumstances demand it, an apology may be warranted as part of the appropriate response to the litigation.

The Principles recommend the State will seek to agree claimant’s costs without the requirement for formal adjudication and engage constructively on the issue without the requirement for the costs to be formally adjudicated.

https://www.gov.ie/pdf/?file=https://assets.gov.ie/261411/d915cfb8-2344-48a0-ae06-0f3c83216847.pdf#page=null