GAZETTE
SEPTE
M
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
v
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
v
//?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
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 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.
4