The Gazette 1992

GAZETTE

SEPTEMBER

1992

should not imply such a term, and the plain-

tiff's action would therefore be dismissed.

Ambiorix Ltd and Ors v Minister for the

Environment and Ors Supreme Court 23 July

1991

PRACTICE - DISCOVERY - PRIVILEGE - CLAIM BY GOV-

ERNMENT DEPARTMENT FOR PUBLIC INTEREST IM-

MUNITY - WHETHER CONSISTENT WITH JUDICIAL

POWER - PRECEDENT - WHETHER DECISION OF SU-

PREME COURT SHOULD BE RECONSIDERED - Constitu-

tion, Article 34

The plaintiff companies, all engaged in prop-

erty development in Dublin, instituted pro-

ceedings seeking, inter alia, a declaration

that the Minister had acted ultra vires the

Urban Renewal Act 1986 in determining that

a site on George's Quay, Dublin, owned by

the fifth defendant Irish Life Assurance pic,

was a designated area under the 1986 Act. In

connection with the case, the plaintiffs sought

discovery of documents from the defendants,

including memoranda between civil serv-

ants and government Ministers as well as

correspondence between Irish Life and the

relevant government departments. The Min-

ister resisted the motion for discovery on the

grounds that discovery of the departmental

memoranda would impair the efficient op-

eration of the civil service and that the corre-

spondence from Irish Life and others, which

included financial information, had been

treated as confidential. Lardner J ordered

discovery. On appeal by the defendants

HELD

by the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) dismiss-

ing the appeal: (1) the suggested claim to

privilege in respect of the documents in

question ignored the constitutional basis on

which discovery is ordered in cases such as

the present; and it was for the judicial power,

not the executive, to determine whether cer-

tain documents be produced in evidence; (2)

where there was a conflict alleged between

the production of documents and the public

interest in confidentiality in the exercise of

the executive power, the resolution of the

conflict was also a matter for the judicial

branch, and thus there cannot be a general

class of documents for which any public

interest immunity from production can be

claimed; and any claim to 'class immunity'

would involve an interference with the right

of access of the citizen to the courts.

Murphy

v Dublin Corporation

[1972] IR 215 ap-

proved and followed. Dicta in

O'Keeffe vAn

Bord Pleanala

(Supreme Court, 15 February

1991) (1991) 9 ILT Digest 172 approved.

Conway v Rimmer

[1968] AC 910 consid-

ered; (3) in the absence of a claim that

production of the documents would affect

the safety and security of the State, the trial

judge had acted correctly in examining the

documents in question; (4) any issue of con-

fidentiality of financial information supplied

to the government departments could be

dealt with either by way of deletion of the

information under the direction of the court

or through restricting access to the legal

advisers for the plaintiffs; and in any event the

use of the discovered material for any pur-

pose extraneous to the proceed i ngs wou Id be

a contempt of court.

Chambers v An Bord Pleanala and Sandoz

(Ringaskiddy) Ltd Supreme Court 23 July 1991

PRACTICE - LOCUS STANDI - PLENARY PROCEEDINGS

- DECLARATION SOUGHT THAT PLANNING PERMIS-

SION ULTRA VIRES - WHETHER PLAINTIFFS HAVING

LOCUS STANDI - Local Government (Planning and De-

velopment) Act 1963, s.82(3)(a) - Local Government (Plan-

ning and Development) Act 1976, s.42

The plaintiffs instituted proceedings seeking

a declaration that the planning permission

granted by the defendant planning board to

the second defendant was ultra vires the

1963 Act, as amended. The plaintiffs were

residents in the area in which the second

defendant proposed to site its pharmaceuti-

cal plant in respect of which permission was

granted. S.82(3)(a) of the 1963 Act, as in-

serted by s.42 of the 1976 Act, provides that

proceedings challenging a planning permis-

sion must be brought within two months of

the grant of permission. The permission in

the instant case had been given on 24 July

1990 and the plaintiffs'- action was begun on

21 September 1990. The defendants sought

to have the action dismissed on the ground

that it was frivolous and vexatious or an

abuse of the process of the courts. Blayney J

dismissed this application. A preliminary is-

suewas then set down for action as towhether

the plaintiffs had locus standi to bring the

proceedings. The defendants argued, inter

alia, that the plaintiffs had no locus standi

since they had not participated at the hearing

before the defendant planning board and

that since the 1963 Act constituted a compre-

hensive code the plaintiffs should not be

permitted to raise matters in the proceedings

which they could have raised, but did not, at

the planning hearing. In the High Court,

Lavan J held that the plaintiffs had no locus

standi. On appeal by the plaintiffs

HELD

the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) allowing

the appeal: since the plaintiffs had instituted

the proceedings within the statutory time

period specified in the 1963 Act, and since

they were also aggrieved persons, in the

sense that the permission impacted on them

personally, they had locus standi to continue

the proceedings as part of the constitutional

right of access to the courts to litigate

justiciable issues. Dicta in

The State (Lynch)

v Cooney

[1983] ILRM 89; |1982] IR 337

applied.

The State (Abenglen Properties Ltd)

v Dublin Corporation

[1982] ILRM 590;

[1984] IR 381 distinguished.

Semble:

the

issues raised by the defendants were more

appropriate to the substantive proceedings.

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 neg-

ligence and breach of statutory duty. It was

accepted that the plaintiff had regularly com-

plained that the fork-lift truck was inopera-

tive from time to time and that he not re-

ceived manual handling training.

HELD

Barron J finding for the plaintiff: (1) since the

plaintiff was employed by the defendant

company in activity which normally included

the manual transport of loads, and was there-

fore of more than a minimal duration, and

since that employment was carried on in a

factory, he was engaged in a 'process' within

the meaning of Reg.3 of the 1972 Regula-

tions.

Nurse vMorganite Crucible Ltd

[ 1989]

AC 692 approved; (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

practicable, suitable mechanical devices be

used to avoid the necessity for manual trans-

port of loads; (3) as to whether the breaches

of statutory duty were causative factors in the

accident, it was agreed that the plaintiff was

using the proper posture for lifting and load-

ing 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 re-

ceived the training required by the 1972

Regulations he would have learned that, in

addition to good posture, in some circum-

stances 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 statu-

tory duty and the accident; (5) there was no

question of contributory negligence, 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 susceptible to prolonged

injury, and the medical evidence indicated

that he should not engage in repetitive bend-

ing or heavy lifting; and in the circumstances

an award of 15,000 general damages was

appropriate.