The Gazette 1992

GAZETT

APRIL 1992

the District Court: since proceedings pursu-

ant to s.10 of the 1851 Act had permitted the

re-issue of a summons and that the second

summons would be deemed to have been

grounded on the first complaint, the provi-

sion in s. 1 (7)(a) of the 1986 Act that its parallel

procedure was subject to 'any necessary

modifications' to the procedure under the

1851 Act must be deemed to include the

possibility of seeking a second summons in

circumstances such as the present.

Ex p.

Fielding

(1861) 25 JP 759 and

Director of

Public Prosecutions v Nolan

[1989] ILRM 39;

[1990] 2 IR 526 applied.

Director of Public

Prosecutions (Moran) vAyton

(Circuit Court,

Judge Sheehy, 26 February 1990) overruled.

Director of Public Prosecutions v Brady High

Court 15 February 1991

CRIMINAL LAW - ROAD TRAFFIC - DRIVING WITH

EXCESS OF ALCOHOL - WHETHER GARDA HAD

FORMED OPINION THAT VEHICLE DRIVER HAD CON-

SUMED ALCOHOL - WHETHER SUCH OPINION RE-

QUIRED TO FOUND CONVICTION - Road Traffic Act

1961, s.49 - Road Traffic (Amendment) Act 1978, ss. 10,12

The defendant had been charged with driving

a vehicle when his blood-alcohol level was in

excess of the limit prescribed by s.49 of the

1961 Act, as inserted by s.10 of the 1978 Act.

The defendant had been stopped at a Garda

check point. The arresting Garda had noticed

that the defendant's eyes were bloodshot,

that his speech was slurred and his appear-

ance untidy. He asked the defendant to pro-

vide him with a breath test, informing him that

refusal would be an offence. The breath test

proved positive, the Garda formed the opin-

ion that the defendant was unfit to drive the

vehicle and informed him that he was arrest-

ing him on suspicion of drunken driving

under s.49 of the 1961 Act. In the District

Court, the chargewas d ism issed on the ground

that there was no formal proof that the Garda

had formed the opinion that the defendant

had consumed intoxicating liquor. On case

stated

HELD

by O'Hanlon J remitting the case

to the District Court: a charge under s.49 can

be dismissed if the result of the breath test

formed the sole basis for the Garda's opinion

that the person was unfit to drive the vehicle;

but in the instant case the Garda had given

evidence of an observational nature as to the

defendant's condition, and the failure to give

formal proof of his opinion that the defendant

had consumed intoxicating liquor could not

invalidate all the subsequent steps taken by

the Garda.

Director of Public Prosecutions v

Gilmore

[1981] ILRM 102 distinguished.

Per

O'Hanlon J: if the defendant had been charged

with the offence of failure to provide a breath

test under s.12 of the 1978 Act, it would be a

good defence if no evidence had been ad-

duced to show that the Garda had formed the

necessary opinion that the defendant had

consumed intoxicating liquor before requir-

ing the defendant to undergo the breath test.

Director of Public Prosecutions v

O'Donoghue High Court 15 February 1991

CRIMINAL LAW - ROAD TRAFFIC - FAILURE TO PRO-

VIDE BLOOD SAMPLE TO REGISTEREDMEDICAL PRAC-

TITIONER - WHETHER SUFFICIENT EVIDENCE AD-

DUCED THAT PRACTITIONER INTRODUCED TO DE-

FENDANT WAS REGISTERED PRACTITIONER - OMNIA

PRAESUMUNTUR RITE ESSE ACTA - BEST EVIDENCE

RULE - Road Traffic (Amendment) Act 1978, s.13

The defendant was charged with failing to

provide a blood or urine sample to a regis-

tered medical practitioner, contrary to s.13 of

the 1978 Act. The defendant was presented to

a doctor in the Garda station and told he was

'the designated medical practitioner.' In the

District Court the doctor was asked: 'I think

you are a registered medical practitioner?', to

which he replied 'I am.' He was also asked in

Court: 'Were you designated by the Gardai

on the night in question?', to which he re-

plied: 'I was.' The charge was dismissed on

the ground that there was no sufficient evi-

dence that the doctor was a registered medi-

cal practitioner at the time the defendant was

requested to supply a blood or urine sample.

On case stated

HELD

by O'Hanlon J affirming

the d i smissa I: wh i le the testi mony of a doctor,

that he was at the time of the request a

registered medical practitioner, was prima

facie evidence of that fact, this was a relaxa-

tion of the best evidence rule, and the pros-

ecution could not ask for a further relaxation

of the rule by reference to the maxim

omnia

praesumuntur rite esse acta;

and as the evi-

dence in the instant case did not amount to an

express confirmation of the necessary formal

proof, the charge was correctly dismissed.

Martin v Quinn

[1980] IR 244 applied.

Ward v Walsh Supreme Court 31 July 1991

DAMAGES - AWARD - ROAD TRAFFIC ACCIDENT -

LOSS OF EARNINGS - CONVERSION FROM STERLING

TO IRISH POUNDS - FUTURE HOSPITAL CARE -

WHETHER DEFENDANT REQUIRED TO MEET EXPENSE

OF PRIVATE HOSPITAL TREATMENT - VHI COVER PRIOR

TO ACCIDENT - FINANCIAL ADVICE - EXTENT OF

ALLOWANCE - WITNESS EXPENSES - DISCRETION OF

TRIAL JUDGE - CONTRIBUTORY NEGLIGENCE - FAIL-

URE TOWEAR SEAT BELT - 20% REDUCTION IN AWARD

The plaintiff suffered partial paraplegia and

other injuries while a passenger in a car

which overturned when being driven by a

servant or agent of the defendant, the car's

owner. The trial judge (Lardner J) concluded

that the car was being driven at between 60

and 70 mph at the time of the accident. The

driver was wearing a seat belt but the plaintiff

was not. The trial judge found the plaintiff to

be 20% contributorily negligent for failing to

wear his seat belt. The plaintiff appealed

against this finding and both parties appealed

various headings of the damages awarded.

HELD

by the Supreme Court (Finlay CJ,

Hederman and Egan JJ) increasing the plain-

tiff's award: (1) the finding of 20% contribu-

tory negligence was open to the trial judge

and would not be disturbed, having regard in

particular to evidence that the driver had

advised him on previous occasions to wear

the seat belt; and although the plaintiff had

requested the trial judge to adjourn the hear-

ing to enable a specific expert witness to be

called on the effects of not wearing a seat belt,

the trial judge had correctly exercised his

discretion to refuse such an adjournment

having regard to the length of the trial and that

the plaintiff had an ample opportunity other-

wise to address the court on this point; (2) as

to loss of earnings, there was a slight error by

the judge in failing to convert potential earn-

ings in England into Irish pounds, and the

award under this heading would accordingly

be increased to reflect this conversion; and

although the trial judge had correctly de-

ducted an amount, taking account of the

plaintiff's injuries, in respect of future loss of

earnings in the plaintiff's family electrical

business, the deduction had been excessive

and the sum awarded under this heading

should also be increased; (3) as to future

home help, the trial judge had been correct in

using the normal multiplier of 4 rather than

the multiplier of 2.5 suggested by the plaintiff

having regard to the rural location of the

plaintiff's home; (4) as to whether the defend-

ant should bear the cost, in damages, of future

private hospital care, the trial judge had erred

in not allowing some amount to take account

of private hospital care, having regard to the

evidence that the plaintiff's parents had, prior

to the accident, taken out private hospital

insurance through the VHI scheme; and a

sum should be awarded for this; (5) the trial

judge had rightly disallowed a figure for re-

pair and maintenance of equipment, such as

bathing equipment, since such maintenance

was part of the running costs of an ordinary

household; (6) some figure should be al lowed

for initial financial advice as to investing the

total award, but not in respect of continuing

advice; nor should there be an award for the

cost of an accountant in respect of home help,

since the plaintiff appeared to be capable of

dealing with relevant tax returns; (7) the trial

judge had wrongly refused to allow the ex-

penses of an expert witness from the United

States, since although the trial judge had

found that his evidence had been duplicated

by other witnesses, his authority had been

accepted and he had been cross-examined in

great detail on behalf of the defendant; and

while the trial judge had a discretion in the

matter, he had been wrong to disallow the

expenses at the end of a lengthy trial; (8) the

defendant should not be required to bear the

cost of a daily transcript of the evidence, since

there were instructing solicitor and one junior

and two senior counsel and there was no

detailed scientific evidence in the case.

Fennessey and Anor

Minister for Health

High Court 29 April 1991

HEALTH SERVICES - NURSES - REGISTER OF AN BORD

ALTRANAIS - WHETHER REGISTRATION STATUTORY

OR CONTRACTUAL IN NATURE - REQUIREMENT TO

MAINTAIN REGISTER - WHETHER FORMER REGISTER

CARRIED OVER TO NEW STATUTORY REGIME - Nurses

Act 1950, s.42 - Nurses Act 1985, ss.7, 26, 27

The plaintiffs instituted proceedings claiming

that An Bord Altranais (the Board) was not

entitled, under the 1985 Act, to alter the basis

on which nurses were registered under the

1950 Act. The plaintiffs also claimed that the

Board was not entitled to charge a retention

fee for registration in 1987 since it had not

established a register under the 1985 Act until

1988.

HELD

by Blayney J: (1) the basis on

which nurses had been registered pursuant to

s.42 of the 1950 Act was statutory in nature,

not contractual, notwithstanding any com-

munications to the plaintiffs which might

have indicated the contrary; and since the

right was statutory in nature and it could not

be argued that it was not capable of repeal or

amendment by the 1985 Act, the Cou rt would

reject the plaintiffs' claim that nurses regis-

tered under the 1950 Act had a right not to be

removed from the register maintained under

the 1950 Act. Dicta in

R. v United Kingdom

Central Council for Nursing, Midwifery and

Health Visiting, ex p. Bailey

(1989) Inde-

pendent 14 March, (Queen's Bench Division,

13 March 1989) applied; (2) since s.27 of the

1985 Act required the Board to prepare, in

accordance with rules made under s.26, a

ment under the Act, this indicated a lapse of

time for preparation of a register; and since

the register adopted in 1988 under new rules