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GAZETTE
JANUARY/FEBRUARY 1993
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.
Hay v O'Grady Supreme Court 4 Febru-
ary 1992
PRACTICE - SUPREME COURT - APPEAL - REVIEW OF
FINDINGS OF FACT BY TRIAL COURT LIMIT TO
SUPREME COURT'S FUNCTION - WHETHER FIND-
ING THAT DEFENDANTS NOT NEGLIGENT SUP-
PORTED BY EVIDENCE - Constitution, Article 34.4.3 -
Courts Act 1988 - Rules of the Superior Courts 1986,
0.58
The plaintiff, a nurse, was employed as a
community facilitator by a hospital, rep-
resented in the proceedings by the de-
fendant. The plaintiff's work involved
bringing patients with severe mental dis-
ability into the ordinary life of the com-
munity; in effect acting as house parent
for the patient to ensure that the patient
could fend for themselves. Patients were
selected on the basis of a review of pa-
tients by a management group of the
hospital. One patient for which the plain-
tiff was community facilitator was prone
to moods in which she would catch a
person's hair or bite somebody. On one
outing to a hotel from the home in which
she had been placed, the patient had
snatched some food and was restrained;
she also took a chair from under a hotel
guest when he had stood up to lift some-
thing off the table. The plaintiff was with
the plaintiff at the time. After this inci-
dent, it was decided to allow the patient
remain in the home under the care of the
plaintiff rather than recall her to hospital.
Shortly after this incident, the patient
assaulted the plaintiff. The plaintiff insti-
tuted proceedings for damages claiming
that the hospital had been negligent in
allowing the patient to continue under
the plaintiff's sole control and that the
hospital should have recalled the patient
to the hospital in the light of the patient's
behaviour. In the High Court, Lynch J
held that the hospital had acted in a
reasonable manner and that it was enti-
tled, even in light of the incident in the
hotel, to allow the patient continue in the
home under the sole control of the plain-
tiff. On appeal by the plaintiff HELD by
theSupremeCourt(FinlayCJ, Hederman,
McCarthy, O'Flaherty and Egan JJ) dis-
missing the appeal: (1) although 0.58 of
the 1986 Rules provides that appeals to
the Supreme Court shall be by way of re-
hearing, this was to be interpreted as
involving a re-hearing of the legal issues
arising in the court of trial and did not
extend to a re-hearing of the oral evi-
dence given at the trial court, and the
Court had, in effect, limited its jurisdic-
tion under Article 34.4.3 of the Constitu-
tion in the case law on this topic; (2) since
the Supreme Court does not have the
benefit of seeing and hearing the wit-
nesses as a trial judge does, the Court
must accept the findings of fact made by
the trial judge where these are supported
by credible evidence, even if there is
evidence to support the contrary view;
(3) the Supreme Court would not inter-
fere with conclusions of law made by a
trial judge based on findings of primary
fact where it was clear that the trial judge
finds that all relevant considerations were
taken into account by the defendants;
and the court should refrain from at-
tempting to substitute its own view for
that of those charged with making the
decision in question unless the decision-
maker failed to inform themselves or to
apply appropriate standards. Per curiam:
the Court should apply the same ap-
proach to appeals from a trial judge as it
had applied to appeals from juries prior
to the enactment of the Courts Act 1988.
Northern
Bank Finance Corp Ltd v
Charlton
[1979J IR 149 and
Dunne v
National Maternity Hospital
[ 1989] ILRM
735; 11989] IR 91 applied.
Murphy v J. Donohoe Ltd and Ors Su-
preme Court 11 March 1992
PRACTICE - ACTION - SATISFACTION OF CLAIM -
PAYMENT INTO COURT ON FOOT OF AGREEMENT
BETWEEN PLAINTIFFS ANDONE DEFENDANT PRIOR
TO INSTITUTION OF PROCEEDINGS - WHETHER
AMOUNTING TO SATISFACTION OF CLAIM -
WHETHER CLAIM AGAINST OTHER DEFENDANTS
SUSTAINABLE - Civil Liability Act I961,ss.16, 17
The infant plaintiffs were seriously in-
jured from burns sustained when the car
they were in went on fire. The car was
owned by their father, the fourth-named
defendant. The plaintiffs' solicitors noti-
fied a number of parties, including the
father (who had carried out some work
on the car), of their intention to institute
proceedings for damages arising from
their injuries. The first-named defendant
had sold the car to the plaintiff, the sec-
ond-named defendant was the importer
of the car and the third-named defendant
had provided parts for the car which
might have been involved in the fire.
Prior to the initiation of the proceedings
agai nst any of the defendants, the father's
insurance company agreed to pay the
sum of £815,000 into court to the credit
of the plaintiffs in full discharge of the
father's liability to the plaintiffs. This pay-
ment was approved by Hamilton P in
February 1990, and was made a rule of
court. The plaintiffs were also made wards
of court. Hamilton P was informed at this
hearing that proceedings would be started
against all four defendants, including the
father. None of the other three defend-
ants were represented at this hearing, nor
were they informed about the hearing.
After the institution of proceedings, the
second-named defendant pleaded in its
defence that the payment made in Febru-
ary 1990 constituted satisfaction of the
plaintiffs' claim against the defendants
and that the proceedings should be dis-
continued on this ground under ss.16
and 17 of the 1961 Act. At a hearing of
this point as a preliminary issue, Hamil-
ton P rejected this argument. On appeal
by the first and second defendants HELD
by the Supreme Court (McCarthy,
O'Flaherty and Egan JJ; Finlay CJ and
Hederman J dissenting): (1) the order of
February 1990 did not constitute the 'sat-
isfaction' of the plaintiffs' claim against
the first and second defendants within
the meaning of ss.16 and 17 of the 1961
Act, since it was not made after any
judgment of the Court on the issues be-
tween the parties and the payment was
made on the basis of an express reserva-
tion that the plaintiffs would subsequently
institute proceedings against the alleged
joint tortfeasors involved in the matter;
(2) the terms of the February 1990 order
should be honoured in that the sum re-
ferred to should be incorporated in any
order made in the proceedings; but the
proceedings should continue, without
any limitation as to damages, against all
four defendants.
In re Hibernian Transport Cos Ltd Su-
preme Court 21 January 1992
PRACTICE - COSTS - APPEAL TO SUPREME COURT -
LIQUIDATION OF COMPANY - ISSUE ARISING -
WHETHER CREDITORS ENTITLED TO INTEREST -
WHETHER SHAREHOLDERS ENITLED TO INDEM-
NITY AGAINST COSTS OF APPEAL TO SUPREME
COURT
The named company and a subsidiary,
Palgrave Murphy Ltd, were put into liqui-
dation in 1970. At the time both compa-
nies were insolvent. However, as a result
of complex legal issues which arose for
determination in the course of the liqui-
dation, it was not possible to pay the
creditors until 1983, by which time a
substantial sum stood in the company's
bank account. The result was that after
each of the creditors was paid in full, a
surplus still remained and the question
thus arose as to whether the creditors
were entitled to interest on the sums
owing. Parties were nominated to repre-
sent the respective interests of the com-
1