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.

[Note: Due to a compositing error, theMarch 1992

Digest contains two identical summariesof

Dunleavy v Clen Abbey Ltd.

We apologise for any

inconvenience this may have caused readers.]

Heeney v Dublin Corporation High Court 16

May 1991

TORT - EMPLOYER'S LIABILITY - FIRE SERVICES - FIRE-

FIGHTER SUFFERING FROM HYPERTENSION AND

CORONARY DIFFICULTIES - FIRE AUTHORITY PRO-

VIDING BREATHING APPARATUS TO OTHER FIRE BRI-

GADES - LABOUR COURT RECOMMENDING RETIRE-

MENT OF FIREFIGHTERS FOR ILL HEALTH - DISPUTE AS

TO IMPLEMENTATION OF RECOMMENDATION FIRE-

FIGHTER GIVING INDEMNITY - EFFECT

The plaintiff's husband had been a firefighter

and Station Officer with Dublin Corpora-

tion's Balbriggan Fire Brigade. Having been

called out to a fire on 12 October 1985, he

entered the building in question without

breathing apparatus. He emerged after three

entries complaining of breathing difficulties

and was brought to hospital where he died. A

post-mortem indicated a heart attack. The

Corporation had trained some brigades under

its control in the use of breathing equipment,

but at the time of the fire in question the

Balbriggan Fire Brigade had not yet been

supplied with such equipment as it was pri-

marily a part-time (retained) brigade and pri-

ority was given to full-time brigades. In addi-

tion, in March 1985, the Labour Court had

recommended retirement of firefighters for

ill-health at 55 and annual medical checks for

them. However, because of negotiations with

employee representations on the pay and

pensions effect of this recommendation, no

medical checks had been put in place by

October 1985. The plaintiff's husband was

over 55 at the time of his death, and suffered

from hypertension. The plaintiff claimed dam-

ages in negligence arising from her husband's

death.

HELD

by Barron J finding for the plain-

tiff: (1) the evidence indicated that the de-

ceased's heart attack was due to smoke and

gas inhalation in the building, and that this

was in turn due to the absence of any breath-

ing apparatus; (2) the Corporation was in

breach of duty to the deceased in not provid-

ing breathing apparatus, and it was no de-

fence to argue that the deceased should have

waited for a brigade with breathing apparatus

to come on the scene before entering the

building; (3) the Corporation recognised that

firefighters over the age of 55 might- have

medical problems, and it was not relevant

that there was a dispute as to the full imple-

mentation of the March 1985 Labour Court

recommendation, as it appeared that medical

examinations would not have been resisted

and if they had been implemented, and the

deceased's coronary artery disease would

probably have been discovered; (4) an in-

demnity which the deceased gave to the

Corporation in October 1984 that he was not

aware of any reason which would prevent

him from taking part in practical and physical

work in the fire service did not absolve it from

its liability in relation to breathing apparatus

and medical checks; (5) the actuarial figures

had not been questioned and a sum of £65,000

for future loss of earnings, less 30% to take

account of diminished I ife expectancy, wouId

be awarded, together with the full £7,500 for

mental suffering having regard to the trau-

matic nature of the deceased's death.

Boyhan and Ors

Tribunal of Inquiry Into

the Beef Industry High Court 8 October

1991

CONSTITUTION - FAIR PROCEDURES - TRIBUNAL OF

INQUIRY - RIGHT TO REPRESENTATION BEFORE TRI-

BUNAL OF INQUIRY - LIMITED REPRESENTATION

GRANTED - WITNESS BEFORE TRIBUNAL - NO ALLE-

GATION MADE AGAINST WITNESS - Tribunal of Inquiry

(Evidence) Act 1921, s.2

The plaintiffs were all members of the United

Farmers' Association. A Tribunal of Inquiry

into the Beef Industry had been established

on foot of an order of the Minister for Agricul-

ture of 31 May 1991 after resolutions had

been passed by the Houses of Oireachtas that

such Tribunal be establ ished. The effect of the

resolutions was that the Tribunal was vested

with the statutory powers conferred by the

Tribunals of Inquiry (Evidence) Acts 1921 and

1979. The UFA submitted to the Tribunal that

it use the evidence of some of its members in

the Inquiry. The Tribunal indicated it would

do so. The UFA applied for full legal represen-

tation before the Tribunal but this was re-

jected. The plaintiffs then sought a declara-

tion that they were entitled to full legal repre-

sentation. On applying for interlocutory relief

HELD by Denham J dismissing the applica-

tion: (1) the Attorney General was the appro-

priate person to represent the public interest

and the UFA had no interest over and above

that of any member of the public; and indeed

counsel for the Tribunal also represented the

public; (2) no allegations had been made

against the UFA or its members so that it was

in the position of witness before the Tribunal;

and since the Tribunal was required to com-

ply with fair procedures, as it had indicated it

would, the limited representation granted the

plaintiffs by the Tribunal was sufficient to

protect their interests and good name.

Dicta

In re Haughey

[1971] IR 217 applied; (3)

the plaintiffs were not 'interested' persons

within the meaning of s.2 of the 1921 Act, and

the Tribunal had acted within its jurisdiction

in refusing the plaintiffs full legal representa-

tion.

Dicta

K Security Ltd v Ireland

(High

Court, 15 July 1977) and Passages from Ap-

pendix 4 of Report of Tribunal of Inquiry Into

Whiddy Island Disaster (Prl.8911, 1980) ap-

proved; (4) the plaintiffs had misunderstood

the purpose of the Tribunal, which was in-

quisitorial in nature, and was not adversarial

in nature, nor was it a court of law, civil or

criminal; and in the circumstances the plain-

tiffs' rights were adequately protected by the

observance of fair procedures and they had

not made out a ground for the exceptional

relief of a mandatory injunction against the

Tribunal.

Goodman International and Goodman v Mr

Justice Hamilton and Ors High Court, 21

October 1991; Supreme Court, 1 November

1991

CONSTITUTION - SEPARATION OF POWERS - TRIBU-

NAL OF INQUIRY - INQUIRY INVOLVING MATTERS

SUB)ECT TO POSSIBLE CIVIL AND CRIMINAL PRO-

CEEDINGS - INQUIRY CONCERNING PAST CRIMINAL

PROSECUTIONS - WHETHER TRIBUNAL CONSTITUT-

ING ADMINISTRATION OF JUSTICE - WHETHER CON-

STITUTING CRIMINAL TRIAL - WHETHER CONSTITU-

TIONALLY VALID - WHETHER FAIR PROCEDURES AP-

PLIED - Constitution, Articles 34, 38, 40.3 - Tribunals of

Inquiry (Evidence) (Amendment) Act 1979, s.6

The first respondent, President of the High

Court, had been appointed the sole member

of a Tribunal of Inquiry into the Beef Industry.

The appointment was on foot of an order of

the Minister for Agriculture of 31 May 1991

establishing the Tribunal of Inquiry after reso-

lutions had been passed by the Houses of

Oireachtas that such Tribunal be established.

The effect of the resolutions was that the

Tribunal was vested with the statutory powers

conferred by the Tribunals of Inquiry (Evi-

dence) Acts 1921 and 1979. The Tribunal

was empowered to investigate certain allega-

tions made in the Oireachtas and on an ITV

'World in Action' documentary concerning

fraud and malpractice in the beef industry in

Ireland. These allegations involved references

to the activities of the first applicant, a com-

pany, and the second applicant, who was the

chief executive of the first applicant. The

Tribunal of Inquiry prepared a document

headed 'Statement of Allegations' which was

read out at the first sitting of the Tribunal. The

applicants brought a constitutional action

claiming that the Tribunal could not validly

inquire into allegations which were the sub-

ject matter of civil proceedings, or of criminal

proceedings which had either been heard or

which might be heard in the future. The

applicants also claimed relief in relation to

the rules of evidence to be employed by the

Tribunal. HELD by Costello J dismissing the

claim: (1) in carrying out its functions as

defined in the order establishing it, and hav-

ing regard to the resolutions of the Oireachtas,

the Tribunal was entitled to assume that the

Oireactas had acted constitutionally; (2) al-

though the Tribunal would express an opin-

ion on the matters referred to it, such opinion

was of no legal effect, and the Tribunal deter-

mines no legal rights and imposes no legal

obi igations, its conclusions being for the guid-

ance of the legislature and the executive, so

that the Tribunal could not be regarded as

being concerned in the administration of

justice within the meaning of Article 34.1,

and its establishment did not breach the prin-

ciple of separation of powers.

McDonald v

Bord na gCon

[1965] IR 217 and Kennedy v

Hearne

[1988] ILRM 531; [1988] IR 481

applied; (3) the Tribunal was required to act

judicially in the sense of applying the princi-

ples of fair procedures; (4) the establishment

of a Tribunal of Inquiry does not in any way

inhibit the judicial power from dealing with

any civil dispute which may be pending, so