The Gazette 1976

226 / 274

GAZETTE JUNE/JU LY 1976
RECENT IRISH CASES
Apportionment for negligence
under Civil Liability Act, 1961,
varied verbally on appeal. (Contri-
buted by Nathaniel Lacy, Solicitor,
Castleknock.)
On 7th August 1971 plaintiff was
riding a motor cycle and was in
collision with a motor car, the
property of the defendant near
Dungloe, Co. Donegal, as a result of
which he sustained personal injur-
ies, loss and damage. Defendant's
motor cover was fully insured and
the case proceeded in the ordinary
way on instructions to his solicitors
from defendant's insurers.
The action duly instituted by
the plaintiff for personal injuries,
was tried before Mr. Justice Butler
and a jury at the High Court, Dub-
lin, on 5 and 6 February 1975. The
jury found the defendant was 71
per cent negligent and the plaintiff
was 29 per cent negligent. The jury
awarded the plaintiff damages to
the extent of £41,227. Having re-
gard to the apportionment on negli-
gence under the Civil Liabilities
Act, 1961, the Judge gave judgment
for the plaintiff for the sum of
£29,271.17 and costs.
The defendant duly appealed to
the Supreme Court against all the
findings of the High Court.
The appeal came for hearing
before the Supreme Court on 20
November 1975. The Court con-
sisted of Henchy, J., Griffin J., and
Kenny J. The appeal was opened
and conducted on behalf of the
appellant and defendant by Mr.
Eamon Walsh, S.G. The respondent
was represented by Mr. Noel Peart,
S.C. The arguments on behalf of
the parties finished at 12.15 p.m.
Mr. Justice Henchy intimated that
the judgment of the Court would
be given at 12.45 p.m. Verbal
unanimous judgment was delivered
by Mr. Justice Henchy on behalf of
his colleagues. He stated that the
finding of the High Court would be
reversed in toto. The Court had
been requested by Mr. Eamon
Walsh in the event of the Supreme
Court deciding in favour of the
appellant on the liability and/or
quantum issue, not to send the case
back for re-trial, but to deal finally
with the case there and then. The
last mentioned request was strenu-
ously opposed by Mr. Noel Peart
who requested the Court to send the
case back for re-trial in the event of
the findings of the Court below
below being upset on any grounds
by the Supreme Court. Mr. Justice
Henchy stated that the members of
the Supreme Court had decided
that they were in a position to deal
finally with the case and they appor-
tioned liability on a 50/50 basis.
The gross damages were assessed at
the sum of £25,427, and the nett
amount payable, having regard to
the 50 per cent liability finding was
£12,713.50. The Court accordingly
gave judgment for that amount,
having reduced it from £29,217.
The costs were awarded to the
respondent of the hearing in the
High Court and each side was
ordered to pay its own costs of the
Supreme Court hearing.
The importance of the Supreme
Court finding
It is to be particularly noted that
the Supreme Court having found in
favour of the appellant as regards
the liability and quantum issues
decided to deal with the case there
and then and not to send it back
for re-trial. This practical approach
of the Supreme Court to appeals as
to apportionment for negligence is
to be commended. It is believed that
the precedent set here may be
followed in future cases. If the case
had been sent back for re-trial, it
would have raised numerous diffi-
culties for the defendant, such as
the increase in wages which had
taken place since the accident
occurred. There was always the
possibility that a new jury might
once more make a wrong apportion-
ment of liability and might find
excessive damages with a resulting
second appeal to the Supreme
Court. In this way, the case could
become a "shuttlecock" between the
High Court and the Supreme Court
and heavy costs would inevitably be
incurred.
Gallagher v. O'Donnell — Supreme
Court (Henchy, Griffin and Kenny JJ.)
— Verbal judgment by Henchy J. —
unreported — 20 November 1975.
Plaintiff's damages reduced by ver-
bal judgment on appeal.
Injuries were sustained by plaintiff
in a collision between plaintiffs
motor car and defendant's lorry. In
answer to question submitted by
Butler J. on 29 November 1974 the
jury found the defendant lorry
driver negligent in failing to keep a
proper look-out and in driving on
the incorrect side of the road. The
plaintiff was found negligent in
driving too fast, but not in driving
on to the incorrect side of the road.
The damages were apportioned as
to 50 per cent each between plain-
tiff and defendant. The damages
were apportioned as to £330 for
special damages, and as to £12,700
for general damages, making a
total of £13,030 damages. Having
regard to the jury's apportionment,
judgment was given for the plain-
tiff for £6,515 and costs.
On condition that the defendant
paid the plaintiff £3,000 plus
interest at 12 per cent per annum,
the Judge ordered a stay of execu-
tion, in order to lodge a possible
appeal. The Notice of Appeal was
duly lodged on 17 December 1974,
and it was contended by the defen-
dant that the sum of £12,700
awarded by the jury in respect of
general damages was excessive and
unreasonable, and that there was
not sufficient evidence upon which
the jury could award such sum.
The appeal was duly heard in
the Supreme Court before Henchy,
Griffin, and Kenny JJ. on 5 Novem-
ber 1975. Henchy J. delivered a ver-
bal judgment in which the Court
unanimously allowed the appeal.
The amount of general damages
reduced from £12,700 to £10,000.
The plaintiff was to be
awarded a total sum of £5,165
in lieu of £6,515. Credit was to be
given to the defendants in respect
of the £3,000 already paid to the
plaintiffs, and the defendants were
accordingly ordered to pay an addi-
tional £2,165 at 12 per cent interest
from date of trial. Each party will
have to pay their own costs of the
appeal in the Supreme Court, but
the costs of the trial in the High
Court were awarded to the plaintiff.
Harris v. Condensed Milk Go. of
Ireland — Supreme Court (Henchy,
Griffin and Kenny JJ.) — Verbal judg-
ment by Henchy J. — unreported —
5 November 1975.
It is unconstitutional for a Con-
tempt of Court case to be tried
without a jury.
The plaintiff seeks to establish that
the defendant is guilty of Contempt
of Court in failing to obey an Order
made by Butler J. on 30 July 1975,
and is therefore liable to committal.
A distinction has endeavoured to be
made between Civil Contempt and
Criminal Contempt but it is to be
noted that in each case a punish-
ment by way of deprivation of lib-
erty is imposed, to wit imprison-
ment. The object of criminal con-
tempt is punitive while that of
civil contempt is to obtain compli-
ance with a Court order. In order
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