The Gazette 1992

GAZETTE

SEPTE

BER

1992

under the 1964 Act to prevent the creation or

development of dangerous structures; and

this required the Corporation to give back

support to the plaintiff's premises.

The State

(McGuinness) v Maguire

(1967] IR 348 dis-

tinguished; (2) while there is not a separate

easement against 'wind and weather', it would

be unrealistic in the context of terraced build-

ings to confine the support requirement to

one of buttressing, since in a short time the

buttressed wall, having regard to its age,

would become unstable and cease to be a

support.

Phipps v Pears

[1967] 1 QB 76

referred to. Per curiam: having regard to the

dangerous condition of the building, the ap-

peal to the Court should have been expedited

and an early hearing would have been granted

on application.

Kehoe v C.J. Louth & Son Supreme Court 18

Novem!>er 1991

NEGLIGENCE - SOLICITOR - CONVEYANCE OF PROP-

ERTY - YEARLY RENT - PURCHASERS ASSURED THAT

CONVEYANCE AS GOOD AS FREEHOLD - DIFFICULTY

IN OBTAINING FREEHOLD AMOUNT REQUIRED TO

OBTAIN FREEHOLD - - REQUIREMENT THAT PREMISES

BE REVALUED INCREASED LIABILITY TO RATES - Land-

lord and Tenant (Ground Rents) (No.2) Act 1978, s.15

The plaintiffs, husband and wife, purchased a

licensed premises on a yearly tenancy at a

yearly rent of 9.67 and in respect of which the

rateable valuation was 9. At the time of sign-

ing the contract, for which the purchase price

was 43,000, the plaintiffs were assured by the

defendant firm's managing clerk, who was

experienced in conveyancing matters, that

the yearly tenancy was 'as good as freehold.'

The plaintiffs subsequently made an offer of

500 for the freehold, but the vendors refused

this. The plaintiffs instituted proceedings in

negligence claiming the premises were, as a

result, virtually unsaleable.

HELD

by the Su-

preme Court (McCarthy, O'Flaherty and Egan

JJ) finding for the plaintiffs: (1) since in the

instant case, the yearly rent was less than the

rateable valuation, a notice for revaluation

was required by s.15(1 )(d) of the 1978 Act,

and while it was difficult to anticipate the

outcome it was likely that any revaluation

would result in an increased liability for rates,

and the plaintiffs were thus entitled to dam-

ages under this head; (2) the plaintiffs must

have been aware that buying out the ground

rent would involve some expenditure, but

they would not have been aware that a figure

of £3,500 (estimated by the defendants in the

present action) would be involved; that the

sum of £500 would appear to have been a

reasonable estimate in the circumstances and

that the plaintiffs were entitled to damages of

£3,000 under this head.

Quirke (Minor) v O'Shea and CRL Oil Ltd

Supreme Court 18 Novemter 1991

PRACTICE - THIRD PARTY - INFANT CLAIM - APPLICA-

TION TO JOIN INFANT'S NEXT FRIEND - WHETHER

PRIMA FACIE CASE ESTABLISHED - WHETHER COURT

HAS DISCRETION TO JOIN - FACTORS TO BE CONSID-

ERED - Rules of the Superior Courts 1986, O.I 6, r.1 - Civil

Liability Act 1961, s.27

The plaintiff, an infant, through his mother

and next friend, claimed damages for per-

sonal injuries arising from an accident involv-

ing a lorry driven by the first plaintiff and the

property of the second defendant. The lorry

had delivered oil to the house occupied by

the plaintiff and his family. The occurred as

the lorry was driving away from the house.

The defendants sought to jojn the plaintiff's

mother as a third party in the proceedings. In

an affridavit in support, the first defendant

stated that the mother had signed the del ivery

docket for the oil and was near the plaintiff

when he began driving away; that he had

assumed that she was in control of the plain-

tiff and that on this basis she had not taken

reasonable care of the plaintiff. In the High

Court, Mackenzie J declined to join the mother

as a third party. On appeal

HELD

by the

Supreme Court (Finlay CJ, Hederman and

Egan JJ) dismissing the appeal: (1) the defend-

ant's affidavithad made out a prima facie case

for joining the mother as a third party; (2)

although the mother was not a person of great

means, this was not in itself sufficient to

indicate that the application to join her was.

an abuse of the process of the court; (3) if a

third party application was refused under

O.I 6, this would not be a basis for a court to

refuse, under s.27 of the 1961 Act, contribu-

tion to the party refused in separate proceed-

ings against a concurrent wrongdoer; and

thus the court's discretion under O.I 6, r.1 as

to whether to join a third party was extremely

wide; and the court in entitled to balance the

disruption to existing proceedings (where the

next friend would have to be substituted if

made a third party) against the convenience

of trying all the issues in one action; (4) in the

instant case, the disruption involved in grant-

ing the application would not be justified,

having regard in particular to the limited

means of the mother.

D'Arcy

Roscommon

County Council

(Supreme Court, 11 January

1991) (1992) 10 ILT Digest 56 referred to.

Texaco (Irl) Ltd v Murphy (Inspector ofTaxes)

Supreme Court 3 December 1991

REVENUE - CORPORATION TAX - CAPITAL EXPENDI-

TURE - RELIEF - SCIENTIFIC RESEARCH PETROLEUM

EXPLORATION - INTERPRETATION OF TAXING LEGIS-

LATION - Income Tax Act 1967, ss.244,245 - Corporation

Tax Act 1976, s.21(1)

Between 1976 and 1978, the taxpayer com-

pany engaged in offshore exploration for pe-

troleum, under licence granted pursuant to

the Petroleum and Other Minerals Develop-

ment Act 1960. The company claimed a

capital allowance in respect of the expendi-

ture incurred in the scientific testing involved

in the exploration, pursuant to s.244 of the

1967 Act, as amended by s.21 of the 1976

Act. This provides for an allowance in respect

of capital expenditure on scientific research

which is not related to the trade activities of

the company involved. S.245 of the 1967 Act

provides for capital expenditure in relation to

certain mining exploration activities, but off-

shore exploration was excluded from s.245.

The Appeal Commissioners held that the com-

pany was nnot entitled to the allowance

under s.244, pointing in particular to the

juxtaposition between s.244 and s.245. This

view was upheld by Carroll J (High Court, 19

May 1988) (1989) 7 ILT Digest 56. On appeal

HELD

by the Supreme Court (Finlay CJ,

Hederman and McCarthy JJ) allowing the

appeal: the principal canon of interpretation

was to have regard to the ordinary meaning of

words used by the Oireachtas; and while it

may be of relevance to look at the overall

intention of a statute, this was less the case in

a revenue statute; and having regard to the

plain meaning of the words in s.244, the

company was entitled to the allowance

claimed, and the Commissioners had erred in

examining the provisions of s.245 in this

context. Dicta in

Cape Brandy Syndicate

//?C[1921] 1 KB 64,

Revenue Commissioners

v Doorley

[1933] IR 750 and

Inspector of

Taxes v Kiernan

[1982] ILRM 13; [1981] IR

117 applied.

Heeney

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 d i m i n ished I ife expectancy, wou Id

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

mental suffering having regard to the trau-

matic nature of the deceased's death.