The Gazette 1993

GAZETTE

APRIL 1993

ing statement made by the accused, there

was a danger of convicting without corrobo-

rative evidence, any such warning could

involve the implication that the Gardai in-

volved in obtaining such a statement were to

be treated in the same way as accomplices;

and consideration of the introduction of such

a warning was a matter for the Oireachtas.

The People v Casey

(No.2) [1963] IR 33

distinguished. Per McCarthy and Egan JJ (dis-

senting): experience with miscarriages of jus-

tice in recent years justified a change in the

common law so that juries should be warned

of the dangers of convicting on an uncor-

roborated confession; (10) (per Finlay CJ,

Hederman and O'Flaherty JJ; McCarthy and

Egan JJ expressing no view) while in the

individual circumstances of a particular case,

such as where a verbal statement only was in

evidence, the trial judge might consider warn-

ing the jury of the dangers of convicting

without corroborative evidence, this did not

arise in the instant case, and the trial judge's

charge had adequately protected the appel-

lant's right to a fair trial; (11) (Finlay CJ,

Hederman and O'Flaherty JJ; McCarthy and

Egan JJ dissenting) the trial judge had ad-

equately addressed the jury on all the allega-

tions of ill-treatment raised by the appellants

in their evidence, and it was not the jury's

function to assess the voluntariness of the

statements (this being for the trial judge on

the voir dire), but rather to assess whether the

evidence given was truthful, and in the in-

stant case the jury had been adequately

addressed on the issue.

The People v Conroy

[1988] ILRM 4; [1986] IR 460 applied; (12)

having regard to the death of a witness before

the 1989 trial, who had testified in the 1985

trial that the second appellant had been at

another location which would have made it

impossible to be at the scene of the burglary,

the second appellant's trial in 1989 should

not have proceeded having regard to the

prejudice which arose from the absence of

this witness, and his appeal would be al-

lowed on this ground.

The State (O'Connell)

v Fawsitt

[1986] ILRM 639; {1986] IR 362

applied.

Bates and Ors v Model Bakery Ltd Supreme

Court 15 July 1992

EMPLOYMENT - REDUNDANCY - SERVICE OF STRIKE

NOTICE-WHETHER STRIKE FRUSTRATEDCONTRACT

OF EMPLOYMENT - WHETHER SUBSEQUENT CLO-

SURE OF PREMISES EFFECTED REDUNDANCIES - PRAC-

TICE - APPEAL FROM EMPLOYMENT APPEALS TRIBU-

NAL - LIMITS TO SUCH APPEAL - Redundancy Pay-

ments Act 1967, ss.7, 39 - Rules of the Superior Courts

1986, 0.105

The plaintiffs had been employed by the

defendant company. In April 1987, the La-

bour Court recommended a 5% pay increase

for bakery workers, including the plaintiffs,

to take effect from 1 April 1987. The defend-

ant did not pay the increase immediately, but

after a threat of industrial action the increase

was implemented from September 1987. The

increase was not retrospective, and in No-

vember 1987 the plaintiffs' union served

strike notice in relation to the retrospection

element. In September 1987, a completely

separate unofficial dispute had occurred in

the bakery, arising from which a grievance

procedure was agreed 'for the processing of

any dispute which may arise". This agree-

ment stipulated that no industrial action would

be taken until after a Labour Court recom-

mendation on any such dispute. After the

strike notice was served in November 1987

on the retrospection claim, the company

issued a letter in January 1988 to all employ-

ees stating that it was of the view that this was

in breach of the September 1987 grievance

procedure and that therefore the employees

had frustrated their contract of employment.

The bakery was subsequently closed, and the

employees sought redundancy pursuant to

the 1967 Act. The Employment Appeals Tri-

bunal held that no redundancy was payable

since the closure resulted form frustration of

the contract. On case stated, the High Court

reversed this decision. On further appeal

HELD by the Supreme Court (Finlay CJ,

Hederman, McCarthy, O'Flaherty and Egan

JJ) affirming the High Court: (1) the Septem-

ber 1987 grievance procedure was not rel-

evant ot the instant case, since its terms

related to any dispute 'which may arise", and

this related to future disputes, whereas the

dispute in the instant case went back to the

Labour Court determination in April 1987; (2)

the service of strike notice by the employees

cou Id not constitute frustration of the contract

of employment with the company, and it was

an implied term of every contract of employ-

ment that the service of strike notice did not

constitute notice of intention to terminate the

contract. Becton Dickinson Ltd v Lee [1973]

IR 1 applied; (2) the January 1988 letter to the

employees constituted a dismissal within s.7

of the 1967 Act, and the employees were

accordingly entitled to redundancy payments

under the Act. Per curiam: on an appeal on a

point of law from the Tribunal under the 1967

Act, the parties were confined to the findings

of fact made by the Tribunal and could only

raise issues of law.

Application of Oshawa Ltd Supreme Court 8

July 1992

LICENSING - INTOXICATING LIQUOR - ADJOINING

PREMISES - BOTH PREMISES LICENSED FOR SALE OF

INTOXICATING LIQUOR - AMALGAMATION OF

PREMISES - WHETHER LICENCE MAY BE GRANTED

FOR AMALGAMATED PREMISES - LICENCE IN ONE

LOCATION EXTINGUISHED ON DATE ON WHICH

LICENCE ACTUALLY GRANTED FOR AMALGAMATED

PREMISES - Licensing (Ireland) Act 1902, s.6 - Intoxicat-

ing Liquor Act 1960, s.24

The applicant had purchased two adjoining

premises, both of which held licences for the

sale of intoxicating liquor. The two premises

were amalgamated into one premises, and

the applicant sought a licence for the amal-

gamated premises under s.6 of the 1902 Act,

as amended by s.24 of the 1960 Act. In the

Circuit Court on 1 December 1987, the ap-

plication was granted (over objections from

local vintners) and the Circuit Court judge

made an order providing for the extinguish-

ment of one of the two licences attaching to

the formerly separated premises, such extin-

guishment taking effect if the Revenue Com-

missioners granted the licence on applica-

tion by the applicant. At the same time the

CircuitCourt judge also made an order grant-

ing another applicant (Tennis Village Cork

Ltd) a licence; that order being possible on

the basis that the licence attaching to the

second premises owned by the applicant

which had been amalgamated into the new

premises would also be extinguished if Ten-

nis Village Cork Ltd sought a Iicence from the

Revenue Commissioners. Tennis Village Cork

Ltd sought such a licence and this was granted

by the Revenue Commissioners in Décem-

ber 1987. The Revenue Commissioners

granted the appl icant its I icence for the amal-

gamated premises on 16 February 1988. The

objectors argued that a licence could only be

granted unders.6of the 1902 Act, as amended

by s.24 of the 1960 Act, in respect of amalga-

mated premises where one of the premises

had been unlicenced, but not in the case of

two adjoining licenced premises. On case

stated HELD by the Supreme Court (McCarthy,

O'Flaherty and Egan JJ) affirming the Circuit

Court order: the application in the Circuit

Court under s.6 of the 1902 Act, as amended,

did not have the effect of creating or of

extinguishing any licence, since this was a

matter for the Revenue Commissioners; in

the instant case, since the Revenue Commis-

sioners had granted a licence to Tennis Vil-

lage Cork Ltd in December 1987, the licence

in the former adjoining premises had been

extinguished by the time the appl icant sought

the licence from the Revenue Commission-

ers for theamalagamated premises, and there-

fore the former adjoining premises was unli-

censed within s.6 of the 1902 Act at that

stage; and it was not therefore necessary for

the Court to determine the case on the argu-

ment put forward by the objectors.

Best v Wellcome Foundation Ltd and Ors

Supreme Court 3 June 1992

NEGLIGENCE - MANUFACTURER - VACCINE FOR

HUMAN USE - WHOOPING COUGH VACCINE -

WHETHER MANUFACTURER NEGLIGENT IN ALLOW-

ING BATCH OF VACCINE ONTO MARKET - CAUSA-

TION -WHETHER LINK ESTABLISHED BETWEEN NEG-

LIGENCE AND INJURY TO PLAINTIFF

In 1969, when the plaintiff was 5 months old,

he was vaccinated with a whooping cough

vaccine manufactured by the first defendant.

Subsequently, he developed violent fits and

suffered serious brain damage. Proceedings

were issued on his behalf claiming that the

brain damage was caused by the negligence

of the defendant company. In the hearing of

the action in the High Court, the plaintiff's

mother gave evidence that the fits had oc-

curred in the immediate aftermath of the

administration of the vaccine. No suggestion

was made that the plaintiff's mother in any

way attempted to mislead the court, but the

doctor who had administered the vaccine

did not recollect that any complaints had

been made to him concerning the plaintiff in

the immediate aftermath of the administra-

tion of the vaccine. Detailed scientific evi-

dence was also given in the High Court that

the batch of vaccine out of which the plaintiff

had received his individual injection had not

passed certain laboratory tests on mice, but

that the company had placed the vaccine on

the market on the basis that this test failure

did not necessarily indicate a defect in the

vaccine batch. Hamilton P held (High Court,

11 January 1991) that the company acted in

breach of its duty of care to the plaintiff in

allowing the vaccine batch to be placed on

the market. However, he dismissed the plain-

tiff's claim on the ground that the doctor's

evidence was to be preferred to that of the

plaintiff's mother; and that it had not, there-

fore, been established that the plaintiff's fits

and brain damage had been caused by the

administration of the vaccine. On appeal

HELD by the Supreme Court (Finlay CJ,

O'Flaherty and Egan JJ) allowing the plain-

tiff's appeal and finding the defendant com-