211 / 336
The only "owner" exempted from prosecution under
Sections 2 and 3 of the Act is the person where right
and enjoyment to the land has been interfered with.
Accordingly Sections 2 and 3 of the 1971 Act are com-
patible with the Constitution.
(Dooley v Attorney-General — Full Supreme
Court — per Griffin J. — unreported — 14 July,
1 9 7 5 ).
In an adjourned hearing by the Land Commissioners,
the personnel should if possible be identical, if the
order is not to be invalid.
Proceedings to acquire these lands were commenced
by a Provisional list of August 1969. The lands were
certified a being required for the purposes of resale to
the persons mentioned in the Land Acts of 1923 and
1950. An objection was entered that the lands were not
required for the purposes specified, and that there was
no local congestion. The matter came before Lay Com-
missioners Kelly and Pearce in June 1970 in Galway.
The Commissioners announced that the lands were non-
productive, but adjourned the proceedings to the Sum-
mer of 1972. The adjourned hearing was listed before
Commissioners Kelly and O'Sullivan in Galway in June
1972, who maintained the previous decision; they
alleged that the lands were not in full production-, and
that the plaintiff was no more entitled to their use than
theretofore.
The plaintiff appealed to the Appeal Tribunal
(Butler J.) relying on the contention that the two
Commissioners who decided the case must have acted
on evidence given at the original hearing, at which
Commissioner O'Sullivan did not sit. Butler J. accepted
this submission, and allowed the appeal. The Land
Commission have now appealed to the Supreme
Court. It was
held
that, when the adjourned hearing
came on before a differently constituted Tribunal, it
was the duty of this Tribunal, before they could dis-
allow any objection, to hold (a) that the lands were
required for the relief of congestion, and (b) that the
objections put forward had not been sustained. Neither
of these findings could have been made without re-
course to the evidence given at the first hearing, which'
had not been heard by one of the Commissioners at the
second hearing. Accordingly Butler J. was correct in
holding that the Commissioner's order was not valid,
and the appeal must be dismissed.
[Estate of Michael Moran Deed.—Hession v. Irish
Land Commission—Supreme Court (Walsh, Henchy
and Griffin J.J.) per Henchy J.—unreported—16 June,
1975.]
A holding of 40 acres held to be uneconomic
The Lay Commissioners of the Land Commission
certified that the whole holding of 51 acres 1 rood and
10 perches was required for relieving congestion. The
plaintiff appealed to the Lay Commissioners, who were
inclined to the view that the Commission should only
acquire 10 acres 1 rood, leaving the objector with 40
acres 2 roods. The objector appealed to the Appeal
Tribunal (Butler J.) on the ground that the remainding
holding was uneconomic. The Appeal Tribunal uphold-
ing the appeal, held that there was nothing in the evid-
ence to show that this holding was anything other than
uneconomic. Accordingly the owner may retain his
original holding of 51 acres.
Re Estate of Oie Anderson—O'Brien v Irish Land
Commission—Supreme Court (Budd, Henchy
and Griffin JJ. per Henchy J.)—unreported—3
June, 1975.
Award of £13,000 for injuries sustained during
drilling operation in mine reasonable, and finding
that defendants were guilty of a breach of stat-
utory duty upheld.
The plaintiff was a miner in Silvermines mine near
Nenagh owned by the defendants. In January 1971,
when the plaintiff was engaged in drilling operations
in a tunnel in the mine, there was a fall of rock from
the roof of the tunnel causing injury to the plaintiff.
The plaintiff claimed that his injuries were caused
by breach of statutory duty and by negligence; the
defendants claimed the plaintiff was guilty of contrib-
utory negligence. The case came before O'Keeffe P.
and a jury in January 1974, and resulted in a net award
being made to the plaintiff in the sum of £10,370 dam-
ages. The jury had in fact awarded £13,700; but they
had apportioned fault as to 80% to the defendants,
and as to 2 0% to the plaintiff. Judgment was accord-
ingly awarded for £10,370, the President having also
deducted a sum of £590 paid under the Social Welfare
(Occupational Injuries) Act 1966. The defendants have
appealed on the ground that the damages were exces-
sive, and that the apportionment was perverse; they
have also appealed against the President's ruling in
directing the jury to find them guilty of a breach
of statutory duty under Section 49 of the Mines and
Quarries Act 1965, to keep the working place safe and
secure. The President ruled that the duties imposed
by Section 49 was an absolute duty. After considering
in great detail the differences between Section 49 of
the Coalmines Act 1911 and Section 49 of the 1966
Act, and having considered in detail the effect of the
decisions in
Doherty v Bowaters Irish Walboard
Mills
Ltd.
—(1968)
IR and
Brown v National Coal Board
—( 1962) AC,
Walsh J.
delivering the judgment of the
Court, held that, where the working place or road
is not secure, and where it could have been secured
by a sufficient degree of control or support, there has
been a failure to provide the necessary degree of con-
trol or support; this statutory duty is absolute. Con-
sequently the ruling that the defendants were guilty
of a breach of statutory duty should be affirmed.
In considering the plaintiffs contributory negligence,
which was apportioned at 20%, it must be borne in
mind that the plaintiff had been in the mine for nearly
two years, and would be expected to know that there
was always a danger of falling rock in the course of
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