The Gazette 1976

GAZETTE

J UNE /J U LY 1976

RECENT IRISH CASES

Henchy stated that the members of the Supreme Court had decided that they were in a position to deal finally with the case and they appor- tioned liability on a 50/50 basis. The gross damages were assessed at the sum of £25,427, and the nett amount payable, having regard to the 50 per cent liability finding was £12,713.50. The Court accordingly gave judgment for that amount, having reduced it from £29,217. The costs were awarded to the respondent of the hearing in the High Court and each side was ordered to pay its own costs of the Supreme Court hearing. The importance of the Supreme Court finding It is to be particularly noted that the Supreme Court having found in favour of the appellant as regards the liability and quantum issues decided to deal with the case there and then and not to send it back for re-trial. This practical approach of the Supreme Court to appeals as to apportionment for negligence is to be commended. It is believed that the precedent set here may be followed in future cases. If the case had been sent back for re-trial, it would have raised numerous diffi- culties for the defendant, such as the increase in wages which had taken place since the accident occurred. There was always the possibility that a new jury might once more make a wrong apportion- ment of liability and might find excessive damages with a resulting second appeal to the Supreme Court. In this way, the case could become a "shuttlecock" between the High Court and the Supreme Court and heavy costs would inevitably be incurred. Gallagher v. O'Donnell — Supreme Court (Henchy, Griffin and Kenny JJ.) — Verbal judgment by Henchy J. — unreported — 20 November 1975. Injuries were sustained by plaintiff in a collision between plaintiffs motor car and defendant's lorry. In answer to question submitted by Butler J. on 29 November 1974 the jury found the defendant lorry driver negligent in failing to keep a proper look-out and in driving on the incorrect side of the road. The plaintiff was found negligent in driving too fast, but not in driving on to the incorrect side of the road. The damages were apportioned as Plaintiff's damages reduced by ver- bal judgment on appeal.

to 50 per cent each between plain- tiff and defendant. The damages were apportioned as to £330 for special damages, and as to £12,700 for general damages, making a total of £13,030 damages. Having regard to the jury's apportionment, judgment was given for the plain- tiff for £6,515 and costs. On condition that the defendant paid the plaintiff £3,000 plus interest at 12 per cent per annum, the Judge ordered a stay of execu- tion, in order to lodge a possible appeal. The Notice of Appeal was duly lodged on 17 December 1974, and it was contended by the defen- dant that the sum of £12,700 awarded by the jury in respect of general damages was excessive and unreasonable, and that there was not sufficient evidence upon which the jury could award such sum. The appeal was duly heard in the Supreme Court before Henchy, Griffin, and Kenny JJ. on 5 Novem- ber 1975. Henchy J. delivered a ver- bal judgment in which the Court unanimously allowed the appeal. The amount of general damages reduced from £12,700 to £10,000. The plaintiff was to be awarded a total sum of £5,165 in lieu of £6,515. Credit was to be given to the defendants in respect of the £3,000 already paid to the plaintiffs, and the defendants were accordingly ordered to pay an addi- tional £2,165 at 12 per cent interest from date of trial. Each party will have to pay their own costs of the appeal in the Supreme Court, but the costs of the trial in the High Court were awarded to the plaintiff. Harris v. Condensed Milk Go. of Ireland — Supreme Court (Henchy, Griffin and Kenny JJ.) — Verbal judg- ment by Henchy J. — unreported — 5 November 1975. The plaintiff seeks to establish that the defendant is guilty of Contempt of Court in failing to obey an Order made by Butler J. on 30 July 1975, and is therefore liable to committal. A distinction has endeavoured to be made between Civil Contempt and Criminal Contempt but it is to be noted that in each case a punish- ment by way of deprivation of lib- erty is imposed, to wit imprison- ment. The object of criminal con- tempt is punitive while that of civil contempt is to obtain compli- ance with a Court order. In order 5 It is unconstitutional for a Con- tempt of Court case to be tried without a jury.

Apportionment negligence under Civil Liability Act, 1961, varied verbally on appeal. (Contri- buted by Nathaniel Lacy, Solicitor, Castleknock.) On 7th August 1971 plaintiff was riding a motor cycle and was in collision with a motor car, the property of the defendant near Dungloe, Co. Donegal, as a result of which he sustained personal injur- ies, loss and damage. Defendant's motor cover was fully insured and the case proceeded in the ordinary way on instructions to his solicitors from defendant's insurers. The action duly instituted by the plaintiff for personal injuries, was tried before Mr. Justice Butler and a jury at the High Court, Dub- lin, on 5 and 6 February 1975. The jury found the defendant was 71 per cent negligent and the plaintiff was 29 per cent negligent. The jury awarded the plaintiff damages to the extent of £41,227. Having re- gard to the apportionment on negli- gence under the Civil Liabilities Act, 1961, the Judge gave judgment for the plaintiff for the sum of £29,271.17 and costs. The defendant duly appealed to the Supreme Court against all the findings of the High Court. The appeal came for hearing before the Supreme Court on 20 November 1975. The Court con- sisted of Henchy, J., Griffin J., and Kenny J. The appeal was opened and conducted on behalf of the appellant and defendant by Mr. Eamon Walsh, S.G. The respondent was represented by Mr. Noel Peart, S.C. The arguments on behalf of the parties finished at 12.15 p.m. Mr. Justice Henchy intimated that the judgment of the Court would be given at 12.45 p.m. Verbal unanimous judgment was delivered by Mr. Justice Henchy on behalf of his colleagues. He stated that the finding of the High Court would be reversed in toto. The Court had been requested by Mr. Eamon Walsh in the event of the Supreme Court deciding in favour of the appellant on the liability and/or quantum issue, not to send the case back for re-trial, but to deal finally with the case there and then. The last mentioned request was strenu- ously opposed by Mr. Noel Peart who requested the Court to send the case back for re-trial in the event of the findings of the Court below below being upset on any grounds by the Supreme Court. Mr. Justice for