516 / 736
Colman Byrne, who died in December, 1965.
Since the High Court proceedings Mr. Harvey
'iad
carried out inquiries and had traced Dr. Sethi, who was
living in Saskatoon, Canada, and who had indicated ihat
he would be available.
Chief Justice O Dalaigh said that Nurse Slattery had
also
been
traced. She was married and
living
in
Massachussetts and had stated that she would have been
of very little help as her memory was not very clear.
The Chief Justice said that it had been pointed out by
Miss Dowd's counsel
that Professor Byrne did not
examine Miss Dowd, but merely advised Mr. Galvin,
presumably on the basis of written records and reports
which were still available.
The Chief Justice said that the reasons advanced by
Mr. Galvin for saying he would be seriously prejudiced
if the case were allowed to proceed, had been shown
to be no longer matters of substance. Mr. Galvin had,
within a matter of months of the operation, been on
notice that hhe reason for the failureo f the operation
was being questioned.
The Court could not fail to take notice that for their
evidence of the treatment of their patients, surgeons and
physicians did and must rely on their written records
to refresh their memories. Medical evidence in modern
conditions was largely a matter of written records. It
should also be said that in an action with regard to a
surgical operation, the patient rarely knew anything;
what had happened was known only to the defendants.
Mr. Justice Walsh and Mr. Justice Budd agreed with
the judgment.
(Dowd v. Kerry Co. Council)—unreported—Supreme
Court—July 1970.
LANDLORD AND TENANT
Premature Application for New Business Tenancy, being
Procedural could be determined, if Landlord waived
his rights.
The House of Lords (Lord Reid. Morris, Pearson and
Diplock, and Viscount Dilhorne) hold that a tenant of
business premises who apolied to the court orematurely
for a new tenancy under the Landlord and Tenant Act
1954, contrary to the
time limits specified
in section
2Pf31
for making uch an apolication, may have his
application
heard
and
determined
:c
the
landlord
expressly or bv conduct waives his right to object to the
premature application for the subsection
is nrecedural
only and does not oust the iurisdiction of the court.
Their Lordshios, Viscount Dilhorne dissenting, so held
on the construction of the subsection, but bv a majority
Lord Reid and Lord Pearson dissenting, they held that
on the facts of the case before them the tenants had not
established
that the
landlords had by
their conduct
wpived their right to ignore or object to the premature
application. The majority of
the House so deciding,
dismissed an apDeal bv tenants, from the decision of the
Court of Appeal (Lord Tnstir» F^^innd Davies and Sir
Gordon Willmer, Lord Justice Sachs dissenting)—(1969)
3. W.L.R. 799 upholding a preliminary objection that
their application to the county court for renewal of a
lease of business premises under the 1954 Act which was
opposed bv the landlords. Zenith Investments (Torquay)
Ltd., could not be entertained bv reason of section 29(3)
since it had been made less than two months after a
reouest for a new tenancv.
Kammis
Ballrooms
Co.
v.
7enith
Investments
(Torquay) Ltd.—The Times, 14th July 1970.
LICENSING
Oral evidence essential
in an interim transfer
in a
licensing application
In Anril 1969, Findlaters sold their licensed premises
in Main Street, Bray,
to Bernard Electrical Holdings
Ltd., who have not since used the premises for the sale
of intoxicating liquor. Instead a subsidiary company of
Bernard Electrical, Hazlett
Ireland) Ltd. has used it
as
a showroom and shop
for
television,
radio and
electrical goods.
In September 1969, a nominee of
Bernard Electrical named Fallon applied to Bray District
Court for an interim transfer of the publican's license
attached to the premises; District Justice Carr granted
the application, but it was signed by District Justice
Delap. On 27th Seotember 1969, the prosecutor, Daniel
Doyle a Bray publican, obtained a conditional order of
Certiorari from Henchy J. directed to District Justices
Carr and Delap to bring up for the purpose of being
quashed the interim transfer order; the District Justices
did
not
show
cause
against making
absolute
the
conditional order, but Fallon averred that the order was
made in excess of jurisdiction, on the ground that there
was no examination on oath of Fallon as required bv
Rule 97
(1) of the District Court Rules 1948. It is
clear that an interim transfer merely gives authority
to carry on the existing licensed premises until the next
Annual Licensing District Court. The only prerequisites
required in order to enable a District Justice to grant an
interim transfer are (al that the required notices have
been given; (b) the necessitv for the transfer, i.e. as a
result of sale or assignment of the licensee's interest in
the premises, and
(c)
that the applicant is not dis
qualified bv law from holding a license.
This
iurisdiction
is
to be exercised bv the Justice
under Rule 97 "if he shall think proper so to do after
an examination on oath of the necessary parties."
Held. That such sworn
testimony implied an oral
examination before the Justice. The compliance of this
Rule was mandatory, particularly as at a hearing for
an interim transfer, it is not necessary to produce the
original license nor the original convevance; accordingly
the Justice exceeded jurisdiction when he made the order
without first hearing sworn testimony.
However, as
the prosecutor had no
interest in an
interim transfer which is now spent, he could not gain
anvthing from having the order of certiorari made
absolute. Accordingly, in the exercise of his discretion,
Henchy J. allowed the cause shown and discharged tbp
conditional order.
(The State
(Daniel Do"le) v. Ditrict Justices Carr
and Delap—Unrenorted—Henchv J.—2nd Tune 1970).
Economic Loss not a head of damage.
The Court of Appeal (Lord Denning, Lord Justices
Winn and Buckley) dismissed an appeal by the de
fendants building contractors from a preliminary issue
of law by Mr. Justice Thesiger, that they could be sued
in negligence by the plaintiff typewriter manufacturers
in Brimingham. The Court held that building contractors
who damaged an electric cable while working on a road
and so cut off power to a factory nearby can be held liable
in negligence for damage to the factory's machinery and
consequent loss of profit but not for any other economic
loss.
(S.C.M. [U.K.] Ltd. v. W. J. Whitall & Son, Ltd.
—
The Times,
18th July, 1970.)
62