The Gazette 1992

GAZETTE

appeared on the evidence to be well capa–

ble of looking after her own affairs, so that

she had not discharged the onus on her in

this respect; (4) although the trial judge had

not, in his ex tempore judgment, explained

why the applicant did not come within the

exemption in s.38 of the 1989 Act, the

Suprpme Court was in as good a position to

judge whether the applicant fell within its

terms, and it was not therefore necessary to

order a re-hearing on this matter; and hav–

ing regard to all the evidence, the applicant

had not made out a case that she was

entitled to the benefit of s.38 of the 1989

Act;

(5)

an an application for a variation of

a maintenance order, the court must not

commence de novo to reach a new view on

the general question, but must determine

whether, from the last effective order, the

circumstances have changed which would

warrant either an increase or a decrease in

the amount of the maintenance; and while

the applicant had made some vague and

excessive claims as to the increased costs of

schooling of the children since the original

order was made in 1989, the Court was

entitled to take judicial notice of the infla–

tionary decrease in the value of money

even since 1989 and that the costs of school–

ing the children would have increased in

that time; and therefore the Court would

increase the weekly sum of 225 to 265 to

take account of such changes.

H.S. v ).5. Supreme Court 3 April 1992

FAMILY LAW - NULLITY - WHETHER

PARTY HAD CAPACITY TO ENTER INTO

LIFE-LONG COMMITMENT - WHETHER

PARTY HAVING MATURITY TO APPRECI–

ATE EFFECT OF ENTERING INTO MAR–

RIAGE

The petitioner, an Irish citizen, met the

respondent on holiday in Europe and they

had sexual relations. On the petitioner's

return to Ireland, she was notified that she

had obtained a Donnelly visa, which enti–

tled her to work in the United States of

America. She contacted the respondent and

invited him to Ireland. When he arrived,

she told him that she would like him to

accompany her to the United States. They

were informed that the respondent could

do so if he was married to the petitioner.

The respondent stated that he was willing to

marry the petitioner on the basis that they

could obtain a divorce in the United States.

The parties were married in the Dublin

Registry Office. Some days later, the mar–

riage certificate was discovered by the pe–

titioner's mother and the instant proceed–

ings, seeking a declaration that the mar–

riage was a nullity, were instituted shortly

thereafter. The petitioner went tothe United

States and the respondent returned to his

native country. The marriage was never

consummated. In the High Court, Carroll

refused to grant a declaration of nullity,

holding that there was no evidence that the

petitioner lacked the capacity to enter into

a life-long commitment and also holding

that the petitioner was amature person who

understood the nature of the marriage con–

tract. She concluded that the petitioner had

got what she wanted, but that the mental

reservation that the parties could obtain a

divorce in the United States was not suffi–

cient to make the marriage a nullity. On

appeal by the petitioner

HELD

by the Su–

preme Court (Finlay CJ, Hederman and

McCarthy

JJ;

O'Flaherty and Egan

dissent–

ing): the trial judge had not erred in con–

cluding, on the evidence presented, that it

had not been shown that the petitioner

lacked the capacity to enter into a life-long

commitment when she went through the

marriage ceremony; and a marriage was

not inva Iid merely by reason of the fact that

the parties to the marriage had knowingly

entered into the marriage with mental res–

ervations as to whether the marriage would

in fact be one for life; and therefore the

Supreme Court would not interfere with the

conclusions of law at which the trial judge

had arrived.

Per

O'Flaherty and Egan

(dissenting): in view of the mental reserva-

. tions of the parties to the marriage, the

marriage could not be described as a mar–

riage in the normal sense of the term, and a

decree of nullity should issue.

Hutch vDublinCorporation SupremeCourt

1 April 1992

MALICIOUS INJURIES - APPLICANT HAVING CRIMI–

NAL RECORD - WHETHER DISENTITLED TO CLAIM

UNDER MALICIOUS INJURIES LEGISLATION - PUB–

LIC POLICY - WHETHER ESTABLISHED IN EVIDENCE

THAT PROPERTY DESTROYED RESULTED FROM

CRIMINAL ACTIVITY - Malicious Injuries Act 1981

The applicant claimed under the 1981 Act

arising from a fire which occurred in 1984

in the house in which he was tenant and

which had resulted in the destruction of

furniture in the house. It was agreed thatthe

fire had been started maliciously. In the

course of the Circuit Court hearing, the

appl icant was cross-examined as to whether

he had a criminal record, and the applicant

accepted that he had been convicted of a

number of offences, including larceny. The

applicant, who had been unemployed since

1977, produced receipts in respect of all

items of furniture in respect of which claims

were made and stated that the items had

been paid for out of savings, loans from

family members and also from part-time

work. The Circuit Court judge (Judge Carroll)

concluded that the furniture had been pur–

chased from the proceeds of criminal activ–

ity and that, accordingly, he was disentitled

to claim for malicious damage to the furni–

ture under the 1981 Act. The case was

referred on case stated to the High Court,

which in turn stated a case for the Supreme

Court.

HELD

by the Supreme Court (Finlay

CJ, Hederman, McCarthy and Egan

JJ;

0' Flaherty Jdissenting): (1) while a witness

was entitled, in general, to refuse to answer

questions which might incriminate him, the

applicant had agreed to answer the ques–

tions in the instant case and, in any event,

questions as to convictions which had al–

ready been recorded were admissible; (2)

the applicant should not be precluded from

claiming under the 1981 Act because (per

Finlay CJ and McCarthy

the conclusion of

the Circuit Court judge that the furniture in

the instant case had been purchased from

the proceeds of crime was not warranted by

the evidence proferred; or (per Hederman

and Egan

JJ)

there was no general public

policy principle by which a person who

DECEMBER 1992

suffered damage within the 1981 Actshould

not

compensated in full, where that

person's criminal activity did not lead di–

rectly to the loss complained of.

Na–

tiona/Insurance Commissioner, ex

Connor

[19811 1 All ER 769 distinguished. Semble

per Finlay

CJ,

McCarthy and O'Flaherty

JJ:

where it was established that proceeds of

crime were destroyed maliciously, it would

offend against common sense if the wrong–

doer could also claim against the commu–

nity for malicious damage in respect of the

destruction of the proceeds of crime. [Note:

the Malicious Injuries (Amendment) Act

1986, which came into effect after the

incident in the instant case, severely limited

the circumstances in which dama

ges can be claimed under the 1981 Act.1

Dunleavy v McDevitt and North Western

Health Board Supreme Court 19 February

1992

NEGLIGENCE - MEDICAL - SURGICAL OPERATION–

WHETHER PARTICULAR FORM OF SURGERY PER–

FORMED WITH DUE CARE - WHETHER ALTERNA–

TlVE SURGERY SHOULD HAVE BEEN PERFORMED–

WHETHER ALTERNATIVE SURGERY WOULD HAVE

AVOIDED INJURY

The plaintiff was referred to the first defend–

ant, a consultant surgeon, in respect of a

lump behind the angle of his left lower jaw,

near his left ear. After examination, the first

defendant performed an operation to re–

move the lump during which the lump was

removed. Subsequent to the operation, the

plaintiff suffered from damage to the facial

nerve on his left side. The plaintiff instituted

proceedings for damages on the grounds,

inter alia, of the negligence of the first

defendant. It was argued that the first de–

fendant should have removed the lump in

an operation, called a wider operation, in

which the facial nerve would have been

exposed at all times and that damage to it

could have been avoided. In the operation

actually performed, called a limited opera–

tion, the facial nerve was not exposed dur–

ing the operation. It was stated that the first

defendant shouId have performed the wider

operation in view, in particular, of his initial

view on examination of the pia intiff that the

lump was malignant. This initial view, in

fact, proved unfounded, the lump not being

malignant. In the High Court it was held

that, having regard to the expert testimony

presented, the first defendant had acted

with all reasonable care. On appeal by the

plaintiff

HELD

by the Supreme Court (Finlay

CJ, Hederman, McCarthy, O'Flaherty and

Egan

JJ)

dismissing the appeal: (1) even if it

was established that the wider operation

amounted to a reasonable precaution which

existed to prevent the spread of malignancy

(and this had not been established in the

instant case), such alterndtive operation

could not be relied on in the instant case

since it was a precaution which had no

causative relation to the instant case; (2) in

relation to the limited operation actually

performed by the first defendant, the expert

evidence in the instant case indicated that

he had conducted the operation in accord–

ance with a reasonable standard of care and

had exercised proper judgment in the course

of that operation.