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
J
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
JJ
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
JJ
(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
J)
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
2
DECEMBER 1992
suffered damage within the 1981 Actshould
not
be
compensated in full, where that
person's criminal activity did not lead di–
rectly to the loss complained of.
R.
v
Na–
tiona/Insurance Commissioner, ex
p
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.