The Gazette 1993

GAZETTE

judge had been correct to conclude that

Curust had established a triable issue that the

1986 agreement was valid under Article 85

of the Treaty of Rome; (2) although Curust

had acted in breach of contract by recom-

mencing manufacture of the primer without

Loewe's consent, this did not disentitle them

to interlocutory relief since something in the

nature of turpitude would have to be in-

volved to disentitle them to equitable relief;

(3) although the evidence indicated that there

would be a difficulty in ascertaining any

damages which might be payable to Curust

in the event of their succeeding, this would

not be impossible, and having regard to the

fact that the damages would be a quantifiable

commercial loss and that Loewe would be

able to meet any such sum, the plaintiffs had

not established that damages would not be

an adequate remedy, and so had not made

out a case for an interlocutory injunction. Per

curiam: a factor in the refusal of interlocutory

relief was an estimate that the substantive

action could be heard in the High Court in

Spring 1993 and the parties should expedite

the pleadings on this basis.

Gannon v B & I Steampacket Co Ltd,

Landliner Travel Ltd and Edenderry Trans-

port Ltd High Court, 3 July 1992; Supreme

Court, 5 November 1992

JURISDICTION OF COURTS - WHETHER PARTY PROP-

ERLY JOINED - BOAT AND COACH TRIP FROM IRE-

LAND TO ENGLAND - TRIP BOOKED WITH IRISH

SHIPPING COMPANY - COACH PROVIDED BY ENG-

LISH COMPANY - TRAFFIC ACCIDENT INVOLVING

COACH AND LORRY - WHETHER SHIPPING COM-

PANY MAY BE SUED FOR BREACH OF IMPLED TERM

OF CONTRACT - WHETHER ENGLISH COMPANIES

MAY BE JOINED - ABUSE OF PROCESS OF COURTS -

Jurisdiction of Courts and Enforcement of Judgments

(European Communities) Act 1988 - Rules of the Supe-

rior Courts 1986, 0.26, r.2

The plaintiff booked a boat and coach trip

from Ireland to England through the first

defendant, B & I, an Irish company. The

coach was provided by the second defend-

ant, Landliner, an English company. During

the journey, the coach was in collision in

England with a lorry owned by the third

defendant, Edenderry. The plaintiff sustained

personal injuries and instituted proceedings

against the defendants. As against B & I, the

plaintiff claimed that it was in breach of

contract in connection with the choice, op-

eration and driving of the coach involved in

the case. The claim against Landliner and

Edenderry was in tort, and the plaintiff joined

them as defendants in reliance on the 1968

Brussels Convention, enacted into Irish law

by the 1988 Act. Landliner and Edenderry

applied under 0.26, r.2 of the 1986 Rules to

have service of notice of the proceedings set

aside. In the High Court HELD by Denham J

refusing to set aside service: there was a

reasonable case for the plaintiff to sue B & I

in contract, and although the other defend-

ants were being sued in tort there was a

connection between all defendants and so

Landliner and Edenderry were properly

joined. On appeal HELD by the Supreme

Court (Finlay CJ, O'Flaherty and Egan JJ)

allowing the appeal and setting aside the

service of notice: (1) although there were

grounds for the plaintiff to sue B & I, the Court

was required under the 1968 Convention to

inquire further whether a party was joined in

proceedings for the purpose of ousting the

jurisdiction of the courts of the State of other

parties being joined; and since, from the

evidence adduced, it appeared that the col-

lision between the coach and the lorry was

not due to any defect in the coach or the

competence of the driver of the coach and

therefore any claim against B & I would be

" very difficult to sustain, the Court was driven

to the conclusion that the reason for suing B

& I appeared to be to oust the jurisdiction of

the English courts, and on that basis the court

should refuse to allow the plaintiff to join

Landliner and Edenderry, under Article 6 of

the Convention.

KalfelisvBankhausSchroder

(Case 189/87) [1988] ECR 5583 applied; (2)

si nee the removal of Landl i ner and Edenderry

from the proceedings would involve a preju-

dice to B & I, as B & I would be unable to join

them as third parties, an application by B &

I to have the plaintiff's proceedingsdismissed

for being an abuse of the processes of the

courts would be successful.

Cork County Council v Whillock Supreme

Court 3 November 1992

MALICIOUS INJURIES - TIME LIMIT - WHETHER EX-

TENSION PERMISSIBLE - STATUTORY INTERPRETA-

TION - Malicious Injuries Act 1981, ss.14, 23

The respondent claimed that a fire which

occurred at his premises on 13 November

1983 was caused maliciously. On 14 No-

vember 1982, he served on the applicant

Council a preliminary notice of intention to

apply for compensation for malicious inju-

ries under the 1981 Act. S.23 of the 1981 Act

sets out a three year limitation period from

the date on which the cause of action ac-

crues, which is the date of the service of the

preliminary notice. No proceedings were

instituted by the end of the limitation period,

but the respondent applied to the Circuit

Court for an order extending the time for

making a claim under the 1981 Act. This was

granted by the Circuit Court judge on the

ground that s.14 of the 1981 Act permitted

such extension. The applicant applied on

judicial review for an order quashing the

Circuit Court decision. In the High Court,

Carroll J granted the order sought. On appeal

HELD by the Supreme Court (O'Flaherty,

Egan and Blayney JJ) allowing the appeal:

there was no inconsistency between s.23 of

the 1981 Act, which provided for a three year

time limit, and s.14 of the 1981 Act, which

perm itted the C i rcu it Cou rt to extend the ti me

for any act or proceedings under the Act

itself; and having regard to the obligation on

a court to give effect to the literal meaning of

the words of legislation and that it should

avoid an interpretation which would render

a provision inoperative, the Circuit Court

judge had the jurisdiction to make the order

in the instant case.

Dublin Corporation v

Carroll

[1987] IR 410 overruled.

Connolly v Dundalk UDC and Mahon &

McPhillips Ltd Supreme Court 18 Novem-

ber 1992

TORT - EMPLOYER'S LIABILITY - MAINTENANCE OF

EQUIPMENT BY INDEPENDENT CONTRACTOR -

CONTRIBUTORY NEGLIGENCE - DEGREE OF FAULT -

Civil Liability Act 1961, s.21(2)

The plaintiff and one other person were

employed by the UDC to operate its water-

works. As part of the water purification proc-

ess, chlorine gas mixed with water was

APRIL

1993

pumped from a chlorine room through a rigid

plastic pipe into a control building to an

upstand pipe into which the mixture was

discharged. A length of flexible plastic pipe

joined the rigid pipe and the upstand pipe in

the control room. The control building and

chlorine purification plant had been built by

Mahon & McPhillips in 1968; in 1972, they

entered into a contract to service and main-

tain the system three times a year; and in

1981, they had replaced the pipe between

the chlorine room and the control building.

In January 1986, on the arrival of the plaintiff

in the control building, he was hit with a

dense cloud of chlorine gas, some of which

he inhaled. He suffered some physical inju-

ries as a result but was also severely affected

mentally by the incident. In the High Court

([1990] 2 IR 1), O'Hanlon J held that the

accident was caused by a failure of the joint

between the rigid and flexible pipes, result-

ing in the release of the chlorine gas. He held

that both defendants had been negligent and

he apportioned liability equally between

them. Damages of 280,727 were awarded.

On appeal by the UDC on the issue of

apportionment only HELD by the Supreme

Court (Finlay CJ, O'Flaherty and Blayney JJ)

allowing the appeal: (1) although the UDC

were negligent in failing to notice that the

joint in question was unsuitable and in failing

to acquaint themselves in time with the de-

velopment of safety procedures which had

come to be regarded as standard, they were

also entitled to rely on the greater expertise of

Mahon & McPhillips in connection with the

construction and maintenance of waterworks;

and having designed and erected the water-

works, and contracted for the periodical serv-

ice and maintenance of the equipment,

Mahon & McPhillips owed an obligation to

the UDC to keep it informed of changes in

standards, and although a recommendation

had been made in this regard in August 1985

(which had not been acted on by January

1986), the trial judge had found that Mahon

& McPhillips should have reacted sooner in

this regard; (2) the trial judge's equal division

of liability between the parties failed to have

sufficient regard to the greater degree of

contribution by Mahon & McPhillips to the

injuries sustained by the plaintiff, within the

meaning of s.21(2) of the 1961 Act; and

bearing in mind Mahon & McPhillips' greater

expertise, very much less blame attached to

the UDC's engineers for failing to discover

the inadequacy of the joint in question; and

accordingly the Court would apportion 80%

liability to Mahon & McPhillips and 20% to

the UDC.

Per

O'Flaherty (Finlay CJ concur-

ring): an employer remains primarily liable in

law for, and cannot fully delegate to an

indepenedent contractor liability for, the

employer's duty to provide a reasonably safe

place of work for its employees; but where an

independent contractor is solely responsible

for causing injury, the employer is entitled to

claim a contribution from the contractor

which would amount to an indemnity.