The Gazette 1992

GAZETTE

SEPTEMBER

1992

Recent Irish Cases

Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University.

The following case summaries have been reprinted from the

Irish Law

Times and Solicitors Journal

with the kind permission of the publishers.

Dunleavy v Glen Abbey Ltd High Court 9

May 1991

TORT - BREACH OF STATUTORY DUTY - EMPLOYER'S

LIABILITY - FACTORY REGULATIONS - MANUAL HAN-

DLING - WHETHER A 'PROCESS' WITHIN REGULA-

TIONS - WHETHER BREACH OF DUTY ESTABLISHED -

WHETHER CAUSATIVE FACTOR IN ACCIDENT - Facto-

ries Act 1955 (Manual Labour) (Maximum Weights and

Transport) Regulations 1972, Regs.3, 6, 7

The plaintiff was an employee of the defend-

ant company, and about half of his duties

involved carrying and lifting loads into and in

the company's factory premises. On the oc-

casion giving rise to the proceedings, nine

cartons of metal fasteners arried at the com-

pany's premises in a van, the cartons being

stored on a pallet in the van. The plaintiff went

for the fork-lift truck in the premises to lift the

cartons from the van, but its battery was dead.

The plaintiff then proceeded to lift the cartons

manually from the van with the help of the

van driver. Each carton was small, being 57

cm x 24 cm x 23 cm, but weighed between 35

and 42 kilos. They lifted four of the cartons in

this way, but with the fifth carton the van

driver let go, the plaintiff was jerked by the

weight and he suffered a back injury. The

plaintiff claimed damages in negligence and

breach of statutory duty. It was accepted that

the plaintiff had regularly complained that the

fork-lift truck was inoperative from time to

time and that he not received manual han-

dling training.

HELD

by Barron J finding for

the plaintiff: (1) since the plaintiff was em-

ployed by the defendant company in activity

which normally included the manual trans-

port of loads, and was therefore of more than

a minimal duration, and since that employ-

ment was carried on in a factory, he was

engaged in a 'process' within the meaning of

Reg.3 of the 1972 Regulations.

Nurse v

Morganite Crucible Ltd

[1989] AC 692 ap-

proved; (2) the defendant had not provided

the plaintiff with manual handling training,

and was thus in breach of Reg.6 of the 1972

Regulations; and, since it was aware that the

fork-lift truck was inoperative from time to

time, it was also in breach of Reg.7, which

required that, so far as is reasonably practica-

ble, suitable mechanical devices be used to

avoid the necessity for manual transport of

loads; (3) as to whether the breaches of statu-

tory duty were causative factors in the acci-

dent, it was agreed that the plaintiff was using

the proper posture for lifting and loading

weights, so that the failure to provide training

on this point was not a causative factor in the

accident; (4) while there might be a tendency

to assume that the proper way to perform the

task was obvious or involved common sense

by the employee, this ignored the need for the

Regulations which applied in the instant case;

and if the plaintiff had received the training

required by the 1972 Regulations he would

have learned that, in addition to good pos-

ture, in some circumstances it is better to take

the entire load than to share it and that a load

should sometimes be broken up; and if he had

had such training he would have approached

his task in a different manner; and on this

basis there was a causative link between the

breach of statutory duty and the accident; (5)

there was no question of contributory negli-

gence, having regard to the plaintiff's good

posture and lack of training; (6) while the

injury received did not at first appear to be

particularly serious, a congenital weakness in

the plaintiff's back made him more suscepti-

ble to prolonged injury, and the medical

evidence indicated that he should not engage

in repetitive bending or heavy lifting; and in

the circumstances an award of 15,000 gen-

eral damages was appropriate.

Director of Public Prosecutions v Corbett

High Court 24 January 1991

CRIMINAL LAW - PROCEDURE - DELAY - SUMMARY

OFFENCE - WHETHER DELAY EXCESSIVE SUMMONS -

AMENDMENT IN DISTRICT COURT-WHETHER PREJU-

DICIAL TO DEFENDANT - FACTORS TO BE CONSID-

ERED - District Court Rules 1948, rr.21, 88

The defendant was charged, inter al ia, with an

offence under s.49 of the Road Traffic Act

1961, as amended, the summons originally

alleging the offence took place on 19 Septem-

ber 1989. The summons was applied for on 9

February 1990, and the hearing was set for 3

May 1990 in the District Court. At the hearing,

the defence sought to have the case struck out

for prejudice to the defendant arising from the

delay involved. No evidence being led on this

point, the District Court dismissed the appli-

cation. The prosecution then applied, uryder

r.88 of the 1948 Rules, to change the da/e of

the alleged offence on the summons from 19

September 1989 to 18 September 1989, an<(

to change the number ofthe defendant's dwel I-

ing on the summons from '27' to '25'. The

District Court refused to amend the sum-

monses and dismissed the charges. On case

stated

HELD

by Barr J remitting the case to the

District Court: (1) although there was delay in

applying for the summonses, this was within

the appropriate statutory limit and therefore

prima facie the summons was good; and since

there was no unreasonable delay between

application and the trial, the District Court

had correctly dismissed the defendant's appli-

cation in the absence of evidence as to preju-

dice; (2) the District Court had a discretion

under rr.21 and 88 of the 1948 Rules as to

whether to grant the application to amend the

summons; but the District Court should not

have taken account of the delay factor since

there was no indication that this would preju-

dice the defendant, and he should have con-

fined himself to considering prejudice from

the point of view of the defendant's alibi

evidence which he had intended to introduce

and also whether the prosecution had taken

the relevant blood or urine sample on the date

in the summons or on the date sought to be

inserted; and in all the circumstances, the

matter should be remitted for the District

Court to enter continuances. The State

(Duggan) v Evans (1978) 112ILTR 61 applied.

Director of Public Prosecutions v Carlton

High Court 24 June 1991

CRIMINAL LAW - PROCEDURE - DELAY - SUMMARY

OFFENCE - WHETHER DELAY EXCESSIVE OR UNCON-

SCIONABLE - WHETHER PREJUDICIAL TO ACCUSED -

WHETHER DECISION OF DISTRICT COURT DISMISS-

ING CHARGE UNREASONABLE-Courts (No. 3) Act 1986,

s.1(7)

The defendant had been charged with an

offence under s.49 of the Road Traffic Act

1961, as amended, alleged to have taken

place on 11 November 1989. The summons

was due to be heard on 12 March 1990 but

due to an oversight the prosecuting Garda

had not been informed about this and the

charges were struck out. The Garda applied

for a fresh summons and this was issued on 21

June 1990, returnable for 26 July 1990. On

the latter date, the defendant sought to have

the charges struck out on the basis that the 8

month delay was unfair, and this application

was granted. On case stated by the Director

HELD

by Morris J remitting the case to the

District Court: (1) the District Court could

strike out charges on the alternative grounds

that: (a) there had been excessive or uncon-

scionable delay in bringing the case, where

the onus is on the State to justify delay; or (b)

the defendant would be prejudiced by a delay

in bringing the case, where the onus is on the

defendant to prove prejudice.

The State

(Cuddy) v Mangan

[1988] ILRM 720 and

dicta in

Director of Public Prosecutions v

Corbett(

High Court, 24 January 1991) (supra)

applied; (2) in the absence of evidence of

prejudice, the District Court must have based

its decision on the excessive nature of the

delay; but, having regard to the six month

time limit permitted in s.1 (7) of the 1986 Act

for the making of a complaint, it was unrea-

sonable for the District Court to decide that an

eight month delay was excessive.

O'Keeffe v

An Bord Pleanala

(Supreme Court, 15 Febru-

ary 1991) (1991) 9 ILT Digest 172 applied.

Per curiam: the District Court may have been

influenced by the previous striking out of the

case, but this was not a proper matter to take

into account.

Director of Public Prosecutions v McKillen

High Court 19 December 1991

CRIMINAL LAW - PROCEDURE - SUMMONS - DANGER-

OUS DRIVING - SUMMONS APPLIED FOR WITHIN SIX

MONTH TIME LIMIT - SUMMONS NOT SERVED - FRESH

SUMMONS APPLIED FORWHETHER PROPERLY WITHIN

TIME LIMIT - Courts (No.3) Act 1986, s.1 - Petty Sessions

(Ireland) Act 1851, s.10

On 3 August 1989, a summons alleging dan-

gerous driving by the defendant on 13 March

1989 was applied for under s.1 of the 1986

Act. Due to difficulties in serving the defend-

ant, a second summons was issued on 27

September 1989, returnable for 16 Novem-

ber 1989. In the District Court, the charge of

dangerous driving was dismissed on the

ground that the second summons was ap-

plied for outside the six month time limit

specified in s.1 of the 1986 Act. On case

stated

HELD

by Lavan J remitting the case to