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GAZETTE
OCTOBER
1988
Recent
I r ish
Cases
Edited by
Gary Byrne
DAMAGES
Tort and Constitution — Children of an
i n j u r ed person are not e n t i t l ed to
damages, either at Common Law or
under the Constitution, against the
wrong-doer w h o caused the injuries, for
damage to their relationship w i t h their
injured parent.
Eugene Hosford, father of the present
Plaintiffs, suffered a severe electrical shock
whilst working for the Defendants in their
factory. The accident was caused by
negligence on the part of the Defendants,
his employers, and resulted in Mr. Hosford
sustaining irreversible brain damage. As a
result of the accident, he was permanently
h o s p i t a l i s ed
and
w as
u n a b le
to
communicate. He was made a Ward of Court
and proceedings were taken on his behalf
against the Defendants. The proceedings
were settled w i th the approval of the
President of the High Court for £ 4 2 0 , 0 0 0.
The Plaintiffs are the five children of Mr.
Hosford, whose ages at the date of the
accident ranged from four to 12 years. Each
of the Plaintiffs, it was claimed, was a
member of a family unit of wh i ch Mr.
Hosford was father and head, and each was
entitled to the benefits of a moral,
intellectual, religious and educational nature,
being the benefits which flow from the love
and affection, the guidance and example
wh i ch the father of a family bestows on his
children. The Plaintiffs claimed that they
were deprived of these benefits as a result
of the injuries their father had sustained.
The Plaintiffs made their claim firstly in
tort, alleging that the Defendants owed a
duty of care not only to Mr. Hosford but also
tc his children, and secondly under the
Constitution, claiming that the negligence
of the Defendants amounted to an infringe-
ment of the rights conferred by Article 41
and Article 4 2 of the Constitution.
Held: as to the claim in tort, that the harm
wh i ch the Plaintiffs allege they suffered is
not of a kind for which compensation will
be awarded. Although damages for nervous
shock are recoverable at Common Law,
damages for grief and sorrow are not, and
thus damages for the type of harm claimed
by the plaintiffs are also irrecoverable. It
w o u l d require an e n a c t me nt of the
legislature to permit damages to be
recovered by the members of the family of
an injured person " i n respect of damage to
the continuity, stability and quality of the
relationship w i th the injured person".
H e l d : as to the claim for alleged
infringement of the Plaintiffs' rights under
the Constitution, Articles 41 and 42 impose
duties on the State vis-a-vis the family, but
in this case the alleged infringer is not the
State, but a private company. The rights
conferred are: —
(a) the right to protection from legislation
wh i ch attacks or impairs the Cons-
titution or authority of the family, and
(b) the right to p r o t e c t i on f r om the
deliberate acts of State officials wh i ch
attack or impair the Constitution or
authority of the family. A private person
(or company) whose negligent acts
injure the head of a family does not
infringe any constitutional right enjoyed
by members of the affected family.
Accordingly, the Defendants were not guilty
of any breach of a constitutional duty
imposed on them. No duty of care was owed
by the Defendants to the Plaintiffs by virtue
of the Constitution.
Philip Hosford and Others -v- John
Murphy
and Sons Ltd. — High Court (per Costello J.)
— 24 July 1987 —
unreported.
Karl Hayes
STATUTE OF LIMITATIONS
N e ed f or
Animus
Poaaidendi
—
G r a z i ng
of Cattle held sufficient use to support
adverse possession.
The Defendant had leased t wo fields,
together w i th some other lands from his
sister for the purpose of grazing cattle for
a number of years up to 1971. In that year
she sold the t wo fields. The purchaser, w ho
was the plaintiff's predecessor in title
purchased the fields w i th the intention of
building t wo factories on them. A factory
was built on the larger field but nothing was
ever built on the smaller field. Notwith-
standing the sale the Defendant continued
to use the smaller field as before. In addition
he created a post and wire fence over portion
of the boundary fence between the t wo
fields where such was necessary to prevent
his cattle from straying onto the factory
premises.
The Plaintiffs on purchasing the property
instituted ejectment proceedings against the
Defendant w ho raised the defence that the
Plaintiffs claim was statute barred by reason
of the adverse possession of the Defendant
of the smaller field since 1971. The Plaintiff
claimed t h at the possession by the
Defendant was not adverse possession for
the purpose of the Statute of Limitations
because it was not inconsistent w i th the
purpose for which the owner of the land
intended to use it.
The Plaintiff relied on
Leigh -v- Jack
5 Ex.
D.264 where Cockburn L. C. said " I do not
think that any of the Defendant's acts were
done with the view of defeating the purpose
of the parties to the conveyances; his acts
were those of a man who did not intend to
be a trespasser, or to infringe upon another's
right. The Defendant simply used the land
until the time should come for carrying out
the object originally contemplated. If a man
does not use his land, either by himself or
by some person claiming through him, he
does not necessarily discontinue his
possession of it. I think that the title of the
Plaintiff is not barred by the Statute of
Limitations."
Bramwell L. J. said: " I n order to defeat a
title by dispossessing the former owner, acts
must be done which are inconsistent w i th
his enjoyment of the soil for the purposes
for which he intended to use it."
The Court noted that in
Leigh -v- Jack
it
was common case that the land concerned
was intended for a street and that until such
use was made of it it would remain idle.
Having referred to
Littledale
-v-
Liverpool
College
11901 ] Ch.190 and
Convey -v- Regan
[1952] I.R. 56 the Court noted that the
decision of Black J. in
Convey -v- Regan
was
based not upon non-interference w i th the
purposes to which the owner intended to put
the lands but on the absence of
animus
possidendi.
The Court referred then to the recent Irish
case of
Cork Corporation -v- Lynch
(26 July
1985, unreported) in which Egan J. had cited
w i th approval a passage from
Wa/lis's
Cay ton Bay Holiday Camp Ltd. -v- Shell Mex
& BP Ltd.,
[1974] 3 All E.R. 575, where
Denning M. R. had said " Wh e re the true
owner of land intends to use it for a
particular purpose in the future, but
meanwhile has no immediate use for it, and
so leaves it unoccupied, he does not lose his
title to it simply because some other person
enters on it and uses it for some temporary
purpose, like stacking materials". The Court
also referred to
Murphy -v- Murphy
[1980]
I.R. 183 where Kenny J. had made the point
that the question of adverse possession was
a question of fact in each case.
The Court took the view that adverse
possession depended on the existence of
animus possidendi
and it is the presence or
absence of this state of mind which must
be determined. Where no use was being
made of the land and the claimant knows
that the owner intends to use it for a specific
purpose in future, this was a fact to be taken
into account. The principle has relevance
only in so far as when that factor was
present it was easier to hold an absence of
animus possidendi.
The Court noted that it
could find nothing in the facts to show that
the Defendant intended to use the land upon
a temporary basis merely to prevent it lying
idle until the owner was in a position to use
it for a purpose of which he was aware. The
Defendant had made full use of the land to
graze cattle which supported the necessary
adverse possession.
Seamus
Durack
Manufacturing
Ltd. -v-
Considine — High Court (per Barron J.) —
27 May 1987 -
unreported.
J o hn F. Buckley
EMPLOYMENT
M i n i m um N o t i ce e nd Terms of
Employment Act 1973 complied w i th
p r o v i d ed t he m i n i m um p e r i od of
stetutory notice is included in notice of
termination — Notice may be renewed.
In 1984, Bolands Limited was in financial
difficulties; a Receiver was appointed w ho
decided to continue trading in the hope he
could sell the business as a going concern.
Having informed the unions, he served
notice on 3 80 employees; notice was given
i