Damien Mackin v S V Drumgath Parish and the RCB and Patrick Rafferty
| Jurisdiction | Northern Ireland |
| Judge | Higgins LJ |
| Judgment Date | 08 March 2007 |
| Neutral Citation | [2007] NIQB 118 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 08 March 2007 |
1
Neutral Citation no. [2007] NIQB 118 Ref:
HIGF5774
Judgment: approved by the Court for handing down Delivered:
8/3/07
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION
________
Between:
DAMIEN MACKIN
Plaintiff;
-and-
S V DRUMGATH PARISH AND THE RCB
Defendant;
-and –
PATRICK RAFFERTY
Third Party. Defendant.
________
HIGGINS LJ
[1] The plaintiff was born on 17 January 1962 and resides at 48, Cross
Heights, Rathfriland and is now aged 45 years of age. He was a self-employed
brick pointer engaged by a local building contractor named John Rafferty who
ran a company called variously City Construction Services or Restoration
Services. The third party Patrick Rafferty is the brother of John Rafferty and
was employed by his brother. City Construction Services or Restoration
Services engaged in cleaning and restoring buildings, in particular the
brickwork. The defendant is the Select Vestry of the Church of Ireland
Church, John Street, Rathfriland and the Representative Church Body. Mr
Samuel Ringland has been a member of the Select Vestry of the Church in
Rathfriland for many years and since 2000 the Honorary Treasurer.
[2] Mr McCollum QC and Mr McCollum represented the plaintiff and Mr
Conlon QC and Mr Gillespie represented the defendant. The third party was
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not represented in court by counsel or solicitor, his solicitor having ceased to
act for him by Order of Master McCorry dated 6 October 2006. On 16
December 2005 the defendant applied under Order 16 Rule 5(2) for judgment
against the third party for failure to serve a defence. The Master ordered that
the ‘defendant be at liberty to enter judgment for a declaration that they are
entitled to be indemnified by the third party against the claim of the plaintiff’
and similarly in respect of costs.
[3] In May 2002 Mr Ringland on the instructions of the Select Vestry
approached the third party and requested he quote a price for power-washing
the roof of the Church. He told Mr Ringland that he could not give him a
quote immediately as he had to check how much the insurance had increased
since the last occasion. The third party gave a quote several days later and
there is an entry in the minutes of the Select Vestry meeting for 16 May 2002
that the third party had agreed to power wash the roof for £350. The third
party had cleaned the roof in 1998 and 2000. Payment in 1998 was by way of a
cheque made out to Restoration Services and dated 29 July and in 2000 by
way of cheque dated 26 August, made out to Mr P Rafferty.
[4] Church of Ireland Church in Rathfriland is situated in the middle of
the town on a street corner as depicted in photograph 1. It has one major roof
covering the main part of the church and two side roofs at either end that are
set off and not as high. There is a bell tower and entrance to one side of the
main part of the church with a small roof at a lower level between the tower
and the main roof. The overall height of the church is just over 27 feet. The
main roof is steep with a pitch of 44 degrees and the slope is 19 feet 3 inches
long. The entrance side of the church is on the main road with one end on a
minor road. The third party lives on the opposite side of the minor road with
a yard to the rear. In order to clean the roof the third party used a hydraulic
lift mounted on the back of a lorry. This is commonly known as a ‘cherry
picker’. When in use it is supported by hydraulic jacks lowered on each side
of the lorry. The lift comprises an enclosed box or basket mounted on an arm
that extends upwards and sideways and is operated by controls situated in
the box. The lorry was positioned on the street, probably mounted on the
footpath when in use. The Vestry minutes record that in 1998 the third party
gave a quotation for cleaning the roof with a hydraulic lift. He was observed
cleaning the roof over the week-end of 1 June 2002 using a lorry with a
hydraulic lift – a cherry picker. He was working alone and indicated to Mr
Ringland that he was almost finished. The cherry picker reached across to the
church roof and the third party’s son was on the ground keeping the hoses
from getting tangled up. No equipment was provided by the church to enable
this cleaning operation to be carried out.
[5] Around 7.30 pm on 5 June 2002 the plaintiff received a telephone call
from the third party asking him if he would help him clean the roof of the
church. The plaintiff agreed and regarded this as doing the third party a
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