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GAZETTE
OCTOBER 1988
limit was in breach of Section 2(c) of the
Employment Equality Act, 1977. This con-
tention was upheld by the Equality Officer
w h o carried out the initial investigation
under the procedures for complaint laid
d o w n by the 1977 Act. The finding was
upheld by the Labour Court but the deter-
mination of the Labour Court was set aside
by the High Court on a point of law. The
Plaintiff appealed to the Supreme Court.
The Supreme Court noted that the
conclusions of fact reached by the Equality
Officer at the initial hearing were not sub-
sequently challenged in the proceedings
before the Labour Court and the High Court.
It noted that in his judgment in the High
Court, Barron J. had considered that he had
to determine the issues before him " o n the
basis of the assumptions of fact which have
been made by the Equality Officer and
inferentially accepted by the (Labour)
Co u r t ". Thus the Supreme Court took the
view that the assumptions of fact made by
the Equality Officer could not now be
challenged by the Health Board particularly
having regard to the fact that it had failed
to accept the opportunity offered by the
High Court to have the matter remitted to
the Labour Court to make specific findings
of fact.
The Supreme Court thus took the view
that in this case one had to assume that
main arguments made by the plaintiff were
true, i.e. (a) that the upper age limit of 27
operated to the detriment principally of those
persons over 27 w ho are attempting to
embark on or re-launch a career, and (b) that
it was self-evident that a significantly higher
proportion of married w o m en aged over 27
than of either single w o m en aged over 27,
or of men of either marital status aged over
27 find themselves attempting to embark on
or re-launch their careers.
On the basis that these arguments were
true, the Court considered that the finding
of indirect discrimination would appear to be
justified, since the imposition of the age
limit, itself reflecting neither sex nor marital
status discrimination, has, on the facts the
effect that a significantly higher proportion
of married w o m en aged over 27 are
excluded. Thus the appeal was allowed.
The Court emphasised that the decision
of the Labour Court should not be taken as
a precedent upon which a conclusion could
safely be based that relatively low age limits
can or do constitute indirect discrimination
within the meaning of the 1977 Act. The
Court advised that the nature of the Equality
Officer and Labour Court proceedings should
be revised so as to ensure that unequivocal
findings of fact made referable to the
evidence upon w h i ch they have been
founded are stated in their recommendations
and determinations.
North Western Health Board
-v-
Catherine
Martyn — Supreme Court (per Finlay C. J.,
Hederman
and McCarthy
J. J.) — 21
December
1987 —
unreported.
Daclan Maddan
NEGLIGENCE
Roof of Defendant's pramisas dasignad
by third party — Infant Plaintiff injured
in fall f r om roof - Defendant aware of
Plaintiff's prasanca — Nexus of causa
and affect from any negligence in design
destroyed — Third party not liable.
The Plaintiff w h o was then 16 years of age
fell f r om an unprotected roof of the
Defendant's Bank premises and injured
himself. The premises had been extended or
renovated. There were t w o roofs: one gave
access to the residential portion of the Bank
premises w h i ch was reached by a concrete
stairway from the garden at the rear thereof;
the second, wh i ch was lower in height than
the other and immediately beyond it,
contained no fence or parapet around it
other than a small 4Vi inch coping stone.
There was no direct access to it nor did it
appear from the evidence to have been
designed as a roof to wh i ch access would
be gained otherwise than for maintenance
or repair purposes. Access could, however,
easily be obtained to it by a person
ascending the stone staircase to the upper
roof, w h o climbed over a relatively low wall
and on to it. Access could also be easily
obtained to it by a person climbing over the
parapet wall of the upper roof and dropping
d o wn to the lower roof. On the date of the
accident the evidence given showed that the
Plaintiff was playing w i th other boys on the
lower unprotected roof. On catching a ball
thrown to him by one of his companions he
turned and fell over the coping stone d o wn
to the ground. He suffered extremely severe
injuries.
The a r c h i t e c ts r e s p o n s i b le for the
extension or renovation were named as Third
Parties in the High Court proceedings. It was
decided that the Plaintiff's action against the
Defendant would be heard before a Judge
and Jury and the Defendant's action against
the third party would be heard before the
same Judge without a Jury. The Jury found
the Defendant 91% and the Plaintiff 9 %
liable in this case. The High Court held that
the third party was 3 0 % liable in this case.
The High Court considered that the third
p a r ty s h o u ld have e n s u r ed t h at an
appropriate retaining wall or a railing around
the roof to w h i ch it was intended persons
w o u ld have access, be erected. The
Defendants settled with the Plaintiff without
the prior approval or consent of the third
party.
On Appeal the third party,
inter
alia,
contended:
(1) Applying the principles laid d o wn in the
case
Conole -v- The Redbank
Oyster
Company
[19761 I.R. 191 that even if
one assumed that the architects were
negligent in failing to provide in their
plans for protection of the lower roof
that the finding by the Jury that the
Defendants, their servants or agents
were aware that boys, including the
Plaintiff, were liable to play on this roof
before the date on wh i ch the accident
h a p p e n e d, c o n s t i t u t ed their c o n-
sequential negligence as a
novus actus
interveniens
and that it was not open to
the Court to hold that there was any
nexus between the negligence of the
architects and the happening of the
accident.
(2) In the alternative a proper consideration
of the degrees of fault as between the
Defendants and the third party and the
Plaintiff, even if the third party were
properly to be held a concurrent wrong-
doer with the Defendants was such that
the default of the third party was
minimal and not such as would support
any finding of contribution against them.
(3) T he D e f e n d a n ts in the f o r m of
settlement reached by them w i th the
Plaintiff had failed to bar the injured
party's claim against the third party and
that was a condition precedent, having
regard to the provisions of Section 22(1)
of the Civil Liability Act 1961, to the
Defendant's claim against the third
party and that it, therefore, failed.
The Supreme Court in allowing the appeal
held: it was not open to the High Court to
hold that a sufficient nexus or connection
existed between any negligence or default
on the part of the third party and the
happening of this accident so as to
constitute the third party a concurrent
w r o n g d o er w i t h the defendants and,
therefore, liable to make contribution or
indemnity. It could not reasonably have been
foreseen by the third party that the boys
would be permitted by the Defendant to play
energetic games upon the unguarded roof.
The Court followed the decision in
Conole
-v- The Redbank Oyster Company
[19761
I.R. 191 and in particular the dicta of Henchy
J. at page 196 of the report:
" If the defect becomes patent to the
person ultimately injured and he chooses to
ignore it or to an intermediate handler w o
ignores it and subjects the person ultimately
injured to that k n o wn risk, the person w h o
originally put forward the article is not liable
to the injured person. In such circumstances
the nexus of cause and effect in terms of the
law of tort has been sundered as far as the
injured person is concerned."
The Defendant was completely aware of
the danger of permitting boys to play on the
unguarded roof and negligent in permitting
the continuance of the playing by the boys
on the roof.
Having reached that decision the Court
found it unnecessary to express a view on
issues wh i ch arose in the case concerning
in particular the provisions of Sections 21,
22 and 29 of the Civil Liabilty Act 1961.
Brian Crowley -v- Allied Irish Banks
Limited
and O'Flynn, Greene, Buchan & Pratners —
Supreme Court (per Finlay C. J., nem diss.)
- 4 November
1987 - [1988] ILRM 225.
Franklin O'Sullivan
INSURANCE
Contract — Breach of Contract and
Negligence — Claim for Indemnity —
Profaasional Indemnity Policy — Public
Liability Policy.
The Plaintiffs had agreed to construct a tank
for the storage of molasses in Limerick.
When constructed the tank proved to be "for
all practical purposes useless for the storage
of molasses". Following a claim for breach
of contract and negligence the Plaintiffs
agreed to pay £150,000 and costs in
settlement.
Plaintiffs had a professional indemnity
policy (PI policy) and a public liability policy
w i th the Defendants and claimed indemnity
from the Defendants against the £150,000
plus costs, together w i th interest under
either or both policies.
The Defendants alleged that the claim fell
outside the scope of the policy as it was a
mixed claim of negligence and breach of
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