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GAZETTE
JULY/AUGUST.
1991
Recent
Irish
Ca s es
Compiled by
Raymond Byrne,
B.C.L., ll.m., b.l.,
Lecturer in Law, Dublin City
University
The following case summaries have been
reprinted from the
Irish Law Times and
Solicitors Journal,
with the kind permission
of the publishers.
M A H ON -V- BURKE A ND ANOR H I GH
COURT 16 MAY 1990
Practice — A c t i on — Survival of action
— Deceased c omp r om l a l ng action —
Whether dependants entitled to maintain
a c t i on n o t w l t h a t a n d l ng c omp r om i se —
Statute — Interpretation — Civil Liability
Act 1961, ss.7, 48, 49.
The plaintiff's deceased husband had been
under the care of the defendants in hospital.
The deceased had instituted proceedings
against the defendants in negligence arising
from the treatment he received, and these
proceedings were compromised prior to the
deceased's death. After her husband's
death, the plaintiff instituted the instant pro-
ceedings claiming damages pursuant to s.48
of the 1961 Act as a dependent of the
deceased as well as claiming funeral ex-
penses. She also claimed on behalf of a
number of other persons who were related
to the deceased: The defendants argued that
the proceedings were not maintainable. In
the Circuit Court, it was held by Judge
Gleeson that the plaintiff was entitled to
funeral expenses only under s.49. On appeal
HELD by Lavan J dismissing the plaintiff's
entire claim: (1) since the plaintiff's husband
had compromised his action prior to his
death there was no longer vested in him
before his death a cause of action within the
meaning of s.7 of the 1961 Act, and so the
plaintiff could not maintain the proceedings
under s.48 of the 1961 Act.
Dicta
in
Gamme/I
-v- Wilson
[1982] AC 27 approved; (2) s.49
was to be interpreted according to its
ordinary meaning, and in allowing for funeral
expenses it was confined to claims by a
person entitled to sue pursuant to s.48, and
since the plaintiff was not entitled to
maintain a claim under s.48 she was not
entitled to funeral expenses under s.49.
D. COAKLEY ft CO LTD -V- COMM I S-
SIONER OF VALUATION H I GH COURT
2 9 MAY 1990
L o c al g o v a r n m a nt
— R a t i ng —
Ma n u f a c t o ry — Sltos uaod f or grain
h a n d l i ng — Wh a t h ar uaa of alloa
producaa d i f f e r e nt p r o d u ct — Practice
— Caaa Stated — No roaeon given f or
f i n d i ng In lower c o u rt — J u d ge having
ratlrad — Annual Revision of Rateable
Property (Ireland) Ame n dme nt
Act
1860, s.7.
The applicant company operated a grain silo.
The silo consisted of a number of grain bins,
each of which was fed by a number of
conveyers and elevators and other
machinery. The respondent Commissioner
accepted that the machinery was not
rateable as it constituted manufacturing
plant for the purposes of the 1860 Act. In
the Circuit Court, Judge Fawsitt found that
the silo also constituted a manufactory for
the purposes of the 1860 Act. The Com-
missioner requested a case stated. Judge
Fawsitt had retired at the time when the High
Court heard the case stated. HELD by
Barron J: (1) on the authorities, the silos
constituted machinery within s.7 of the
1860, Act; (2) the silos did not constitute a
manufactory within s.7 since the essential
purpose of a silo was to handle grain; and
while various functions were performed on
the grain to make it suitable for sale to the
company's customers these did not purport
to produce a different product.
Dicta
in
Cronin
-v-
Strand Dairy Ltd
(High Court, 18
December 1985) applied; (3) there was no
evidence in the case stated to justify the
findings of the Circuit Court that the silos
constituted a manufactory within s.7 of the
1860 Act, and since Judge Fawsitt had
retired the correct approach was to order
that the silos were not exempt from rating.
North Western Health Board -v- Martyn
[1988] ILRM 519; [1987] IR 565 dis-
tinguished; (4) although the Commissioner's
concession that the machinery in the silos
was not rateable.must have been based, in
part, on a view that the entire plant was a
manufactory, he was not estopped from
raising an issue of fact in the instant case;
nor was it relevant that Judge Fawsitt had
found that similar plant in the premises next
door to the applicant was exempt from rating
and that this decision had not been
appealed.
D.P.P. (CROWLEY) -V- CONNORS H I GH
COURT 10 MAY 1990
Criminal Law — Road Traffic — Driving
w i t h axcasa of alcohol — Cartlficata of
Me d i c al Buraau of Road Safaty —
Evldenca of non-delivery of certificate to
accueed — Whathar charge ahould be
dismissed — Presumption of compllanes
w i t h statutory duties — Practice — Case
Stated — Lack of clarity — Road Traffic
(Amendment) Act 1978, ss.22, 23.
The defendant had been charged with
driving a mechanically propelled vehicle
when the level of alcohol in his system was
in excess of the permitted levels, contrary
to s.49 of the Road Traffic Act 1961, as
amended by the 1978 Act. At his trial in the
District Court, he gave evidence that he
resided at a campsite on which a number of
persons with his first and last name also
resided. He also stated that he did not
receive a copy of the certificate of the
Medical Bureau of Road Safety as to the
results of the blood test carried out by the
Bureau under the terms of the 1978 Act.
Evidence given by a postman was that he
had delivered the certificate to one of the
houses on the site, but that he was aware
that there were a number of persons living
there with the defendant's name. The
District Justice dismissed the charge against
the defendant on the ground that it had not
been shown that the Bureau had complied
with its statutory duty to forward the test
results to the defendant as required by s.22
of the 1978 Act. On case stated HELD by
Lavan J remitting the matter to the District
Court: having regard to the presumption of
compliance with statutory duties in s.23 of
the 1978 Act it was not sufficient to
establish that the Bureau was in breach of
its duties for the defendant to indicate that
the Bureau's certificate had not been
delivered to him; and the case should be re-
entered in the District Court to enable the
Justice ,to hear any submissions which
might be made by the defendant as to
whether the Bureau was in breach of such
duties, the onus of establishing non-
compliance being on the defendant.
Director
of Public Prosecutions -v- Walsh
[1985]
ILRM 243 applied.
Par
Lavan J: there was
a difficulty identifying the precise question
of law posed in a case stated where the legal
submissions made in the lower court are not
identified in the case stated itself and where
a general question is posed.
CORCORAN A ND ORS -V- ELECTRICITY
SUPPLY BOARD H I GH COURT 10 MAY
1 9 90
Employment — Dismissal — Allegations
of serious m i s c o n d u ct d u r i ng strike —
S t r i k e s e t t l e m e nt I n c l u d i ng n o n-
v l c t l m l s a t l on clause — Whether pre-
cluding dismissal In absence of criminal
c o n v i c t i o ns — Wh a t h ar p r o c e d u r es
a d o p t ed fair.
In the course of a lengthy unofficial dispute
by the defendant Board's employees, allega-
tions were made that some of the strikers
engaged in physical violence towards and
intimidation of the Board's management
and, in some instances, intimidation of their
wives and children and also interference
with and damage to property of staff mem-
bers and of the Board. As part of the strike
settlement, a non-victimisation clause was
agreed. In clarifying the clause, the Board's
Industrial Council stated that 'proven serious
cases of endangering life or limb, mis-
appropriation or damage to property or other
matters with legal connotations could not
of course be covered by a no victimisation
clause'. The Board decided that those em-
ployees who had engaged in the activities
mentioned should be dismissed. The plain-
tiffs were informed that the Board's
dismissal procedure would be invoked in
relation to them. The plaintiffs did not
participate in the procedures at local level,
but were represented at the later regional
stages by their trade union officials. The
plaintiffs were dismissed. The plaintiffs
challenged the validity of the dismissals on
the grounds that the procedures adopted
were not in accordance with fair procedures
and that the no victimization clause
precluded the Board from dismissing them
in the absence of criminal convictions
concerning the actions alleged to have taken
place during the strike. HELD by Barron J
dismissing the claim: (1) the plaintiffs could
not complain of the alleged deficiencies in
the procedures adopted at local level since
they were not participating in the process
at the time; nor could they complain in
relation to the procedures at regional level
since their union representatives had insisted
that such procedures be adopted; (2) as a
matter of construction and having regard to
the clarification from the Board's Industrial
Council, the non-victimisation clause could
not be interpreted as precluding the Board
from adopting the dismissal procedures only
where criminal charges had been brought
against the plaintiffs.