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UNREPORTED IRISH CASES
Section 60 of Workmen's Compensation Act 1934 and
Section 6 of the Act of 1953, which prohibit a
workman from taking a civil action for negligence
unless within a specified time, of accepting com-
pensation, do not conflict with the Constitution.
(1) On 12th December 1963, the plaintiff, who was in
the employment of the defendants, sustained an acci-
dent in the course of his employment and he alleges
negligence and breach of statutory duty against the
defendants.
(2) On 7th March 1966, he issued proceedings in
the High Court for damages and negligence, and de-
livered a statement of claim on 21st December 1967.
The defendants denied negligence, and pleaded con-
tributory negligence.
(3) The defendants also contended that, while the
plaintiff was incapacitated, the defendants paid him a
weekly sum of £4.50 for workmen's compensation.
They pleaded that the plaintiff's proceedings were not
maintainable as not having been commenced within the
statutory time allotted by Section 60 of the Workmens
Compensation Act 1934. The plaintiff replied that
Section 60 was unconstitutional, as it had not been
carried over by the Constitution. On 7th March 1969,
an order directed that a judge alone should try these
preliminary issues.
(4) Pringle, J. held that Section 60 of the 1934 Act as
amended by Section 6 of the 1953 Act were not in-
consistent with the Constitution, and that the plaintiff
had not instituted the proceedings within 12 months of
the accident. It was also stated that the plaintiff had
not exercised his option to either claim workmen's com-
pensation or to take proceedings for negligence, as he
was apparently not aware he could not claim both.
(5) The defendants—appellants— contended on
appeal that Section 6 of the 1953 Act related only to
the exercise of the option provided for in Section 60 of
the 1934 Act, and did not refer to cases such as this,
where workmen's compensation had been accepted
without the exercise of the option. In
Young v. Bristol
Aeroplane Co.
(1946) A.C. The House of Lords ex-
pressed the view that the mere acceptance of workmen's
compensation as such was not in itself the exercise of an
option, and was not a bar against maintaining pro-
ceedings at common law. The former Supreme Court
arrived at a different conclusion in Irish cases. For
instance, in
Walsh v. E.S.B.
(1944) I.R., when the
same defence as to payment of workmen's compensation
had been set up, O'Byrne, J., giving the majority
judgment of the Supreme Court, held that the fact
that the defendants paid workmen's compensation was
to make them liable under the Act, and the plaintiffs
could not contravene Section 60(2), by making the
defendants liable independently of the Act; this sub-
section provided that the employer should not be doubly
liable to pay workmen's compensation—and damages at
common law. In
Kavanagh v. Dublin Gas Co.
(1947)
I.R., the majority of the Supreme Court held that, oncc
the payments of compensation had been made, there
was an admission of liability by which the employers
were bound, and declined to follow Young's case (1946).
Walsh's case ought not to be followed otherwise it
would have meant that an employer by speedy action
in immediately paying workmen's compensation could
eliminate the danger of being sued at common law.
(6) The real effect of Section 60 is that it did not
prevent an employer choosing to pay under both head-
ings if he so wished, and if he voluntarily paid work-
men's compensation in the first instance. Therefore the
statutory provision which provides that an injured
party having alternative remedies against the party who
is insurable for the injury may not make the second
party liable to pay under both headings, is not inconsis-
tent with the Constitution.
(7) At common law, it was necessary to prove fault,
whereas workmen's compensation is statutory. This
Court is established under the 1961 Act and is free
not to follow decisions of the former Supreme Court.
Section 60 of the 1934 Act was not affected by the
ordinary period of limitation in respect of common law
actions brought by workmen, provided they had not
accepted workmen's compensation under the Act.
Accordingly Pringle J. was correct in holding that
Section 60 (2) was carried over by the Constitution,
and that the plaintiff's proceedings are not maintain-
able because the appeal was not instituted in time. The
appeal was accordingly dismissed by the full Supreme
Court.
(8) It is also clear that Section 6 of the 1953 Act
does conform with Article 40(1) or Article 40(3)
of the Constitution. This section states that, if pro-
ceedings are not instituted within 12 months of the
accident, then they can be instituted within the follow-
ing 12 months only if substantial grounds are advanced;
the section purports only to cut down the time in
respect of those who have actually received payment of
compensation under the Act. Economic compensation
may force a workman to claim and accept compensation
under the Act, and yet he should not thereby be de-
barred from seeking further relief under common law.
The State may differentiate between citizens in pursuit
of personal rights—in
O'Brien v. Keogh
, it was held
that Article 40 does not require identical treatment of
all persons without recognition of differences in relevant
circumstances. Section 6 has protected workmen from
their previous vulnerable position, and has placed them
in a more advantageous position. It does not conflict
with Article (40)1 of the Constitution. As regards
Article 40(3) of the Constitution, it is clear that Section
6 of the 1953 Act does adequately defend and vindicate
the personal rights of the workmen.
[O'Brien v. Manufacturing Engineering Co. Ltd.;
Supreme Court; unreported; per Walsh, J.; 28th July
1972.]
Judge wrongly admits confession as not made voluntarily
and acquits aicused—Reference to Supreme Court
under Criminal Procedure Act, 1967.
(1) Section 34 of the Criminal Procedure Act 1967
provides that, if a verdict on a question of law is found
by direction of the trial judge, The Attorney General,
may, without prejudice to this verdict refer this question
of law to the Supreme Court by means of a statement
to be settled by the Attorney General in consultation
with the Judge.
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