The Gazette 1991

GAZETTE

JULY/AUGUST 1991

Recent

Irish

Cases

Compiled (by

Raymond Syrae,

<llm.,b.l,

Lecturer In Jaw, Dublin City

University

his whole case of tools onto the control

room roof; but the second defendant as

occupier of the factory also had control over

the situation and since the plaintiff was

doing work for the benefit of the second

defendant a duty of care between them also

arose; nor could the plaintiff be exonerated

completely since he should have realised the

danger; and liability at common law would

be assessed as being 70% on the second

defendant; 20% on the first defendant end

10% on the plaintiff.

Mulcare

-v-

South

Eastern Health Board

(1988) ILRM 689 and

Garrard -v- Southey & Co Ltd

[1952] 2 QB

174 applied; (2) the second defendant was

also in breach of statutory duty towards the

plaintiff under s.37(1) of the 1955 Act, as

amended by s.12(1) of the 1980 Act, which

required that there shall so far as is

reasonably practicable be provided and

maintained safe means of access to and

egress from every place of work; and in the

circumstances the plaintiff could not be

shown to have been contributorily negligent

under this heading of claim, since that

concept in the context of breach of statutory

duty required more than mere carelessness

or inattention; and thus the plaintiff was

entitled to recover in full against the second

defendant for breach of statutory duty.

Roche

-v-

Kelly & Co Ltd

[1969] IR 100 and

Kennedy

-v-

East Cork Roods Ltd

[1973] IR

3M4 eppHad; (3k having regard to the serious

injuries sustained by the plaintiff and the

evidence as to the future damage to the |

plaintiffs foot which would reoure further

. aurgary to fuaa the joints, damages tor past

itofo and «u f f t r i r^ would be assessed a:

£ 5 0 £ 00 and for the future at £75400. anc

rtiwre ware agreed apecM d w n ^ e s of I

£ 3 4 6 0 4 7.

O'Flaherty JJ): (1) once the jury had made

a finding of assault, they inevitably also had

to conclude that there had been a malicious

prosecution; so that in the instant case there

was no need for the trial judge to make a

specific decision as to whether the Gardai

had reasonable and probable cause for

bringing the prosecution against the plaintiff;

(2) the trial judge was not obliged to tell the

jury that they could disagree on a verdict if

less than nine of them were unable to agree

on an isduei nor was any authority cited for

this proposition; (3) while a claim for

exemplary or punitive damages need not be

specifically pleaded, it was desirable that

such a claim be indicated so that the

defendants would have an opportunity to

meet such a claim; but in the instant case

counsel for the plaintiff indicated that a claim

over and above general damages was being

sought; and having regard to the findings

made by the jury, they were entitled to award

exemplary damages, and to award it for both

the assault and malicious prosecution or for

one of them; and in this case they had not

awarded any exemplary damages for the

assault; (4) (Hederman and O'Flaherty JJ:

McCarthy J dissenting) the award for the

malicious prosecution bore no relation to the

award for assault and the Court would

substitute a figure of £20,000 for the

malicious prosecution; (5) the issue of

vicarious liability of the State had not beer

contested at the trial and should not oc

entertained by the Cour.

MURPHY

At-

GREEN SUPREME COURT

18 DECEMRER IMC

The following case summaries have been

reprinted from the

Irish Law Times and

Solicitors Journal,

with the kind permission

of the publishers.

DUNNE -V- HONEYWELL CONTROL

SYSTEMS LTD AND VIRGINIA MILK

PRODUCTS LTD HIGH COURT 20 JULY

1990

TORT - 'EMPLOYER'S LIABILITY

EMPLOYEE WORKING AWAY FROM

EMPLOYER'S PREMISES - ACCESS TO

AND EGRESS FROM PLACE OF WORK NOT

REASONABLY^ SAFE

WHETHER

PERSON WORKING IN OCCUPIER'S

PREMISES FOR'BENEFIT OF OGCUPER —

DEGREES OF FAULT ATTRIBUTABLE I D

PARTIES - BREACH OFSTOTUTORY DUTY

ACCESS TO AND EGRESS FROM PLACE OF

WORK - WHETHER DUTY OWED TO

EMPLOYEES OR TO ALL PERSONS

GAINING ACCESS TO PLACE OF WORK -

CONTRIBUTORY NEGLIGENCE ARISING

FROM BREACH OF STATUTORY DUTY -

Factories Act 1955, 8.37(1) - Safety in

Industry Act 1980, s.12.(1).

The first defendant had installed control

equipment in a factory and also had a service

contract for the maintenance of the control

equipment. The factory was owned and

operated by the second defendant. The

plaintiff was an electrial technician employed

by the first defendant. In the course of his

employment he sustained injuries at the

second defendant's premises while carrying

out maintenance work on the control

equipment. To gain access to the place of

work, he climbed a vertical ladder fixed to

the wall of the building. As he was

descending from the job holding the case

containing his tools, he lost balance and

sustained severe injuries to his left heel.

Evidence was given that the first defendant

had previously given its electricians a satchel

for their tools which they would have carried

over their shoulder, but that cases had been

issued to them on the basis that these gave

their work a better image. Evidence was also

given that the ladder had been built after the

factory premises was completed and that

the space available at the roof and the

narrowness and depth of the steps were not

in accordance with the recommendations in

a 1985 British Standard for ladders. HELD

by Barron J: (1) even though the plaintiff was

working away from the first defendant's

premises, the first defendant as employer

was in breach of its duty of care to the

plaintiff by failing to warn him not to carry

MC I NTYRE -V- LEWIS A ND ORS

SUPREME COURT 17 DECEMBER 1990

TORT - FALSE IMPRISONMENT

MALICIOUS

PROSECUTION

ALLEGATION THAT GARDAÍ ASSAULTED

AND

MALICIOUSLY

PROSECUTED

PLAINTIFF - WHETHER NECESSARY TO

PROVE ABSENCE OF REASONABLE AND

PROBABLE CAUSE FOR PROSECUTION -

WHETHER JUDGE REQUIRED TO TELL

JURY THAT THEY MAY DISAGREE ON

VERDICT IF NINE OF THEM UNABLE TO

AGREE ON VERDICT -

WHETHER

EXEMPLARY OR PUNITIVE DAMAGES

APPROPRIATE - WHETHER EXCESSIVE -

WHETHER PROPORTION SHOULD EXIST

BETWEEN

AWARDS

FOR

FALSE

IMPRISONMENT

AND

MALICIOUS

PROSECUTION

The plaintiff alleged that he had been

assaulted by two members of the Garda

Siochana, the first two defendants. The

plaintiff was arrested and brought to a Garda

station. The Gardai brought charges against

the plaintiff claiming that he had assaulted

them in the execution of their duty. The

plaintiff was acquitted in the Circuit Criminal

Court on these charges. He then instituted

proceedings claiming damages or assault,

false imprisonment and malicious pro-

secution. In the High Court, the jury found

that the plaintiff had been assaulted and

awarded damages of £5,000. For malicious

prosecution, the jury awarded £60,000. On

appeal by the defendants HELD by the

Supreme Court (Hederman, McCarthy and

MENTAL TREATMENT - LEAVE TO

COMMENCE PROCEEDINGS CHALLENG-

ING COMMITTAL -

SUBSTANTIAL

GROUNDS FOR CONTENDING BAD FAITH

OR LACK OF REASONABLE CAUSE

GROUNDING COMMITTAL - ONUS ON

PLAINTIFF - WHETHER HIGHER THAN

CIVIL STANDARD OF PROOF

CONSTITUTION - RIGHT OF ACCESS TO

THE COURTS - WHETHER REASONABLE

RESTRICTION - DOCTOR CERTIFYING

PLAINTIFF FOR DETENTION - WHETHER

MIS-DIAGNOSIS SUFFICIENT TO GROUND

LEAVE TO COMMENCE - Mental Treatment

Act 1945, s.260 — Constitution, Article

40.3

The plaintiff had been brought to a Garda

station after his wife had made complaints

to the Gardai that thti plaintiff had beaten

his daughter. The wife had previously

obtained a protection order against the

plaintiff in the District Court. The wife then

contacted the defendant doctor who was on

call for another doctor. The defendant had

never attended the plaintiff. The wife ex-

plained the circumstances in which the

plaintiff had been taken to the Garda station

and she requested the defendant to certify

that the plaintiff be committed to a

psychiatric hospital under the 1945 Act The

defendant attended the plaintiff in the Garda

station, concluded that the plaintiff was

intoxicated and certified that he should be

committed as an addict under the 1945 Act

and that he required 6 months treatment.

The plaintiff was escorted by the Gardai in

an ambulance to a psychiatric hospital. He

was released from the

hospital

approximately 12 hours later. The plaintiff

sought leave under s.260 of the 1945 Act

to bring proceedings against the defendant.