The Gazette 1991

GAZETTE

JULY/AUGUST. 1991

issue, having regard to the almost unbroken

line of decisions on the Supreme Court by

which is avoided dealing with a constitu-

tional issue where a case could be deter-

mined on some other ground; and there were

many factors which supported abstaining

from making a moot decision, among them

being that in a full constitutional action the

Court would be required to take into

consideration a variety of factors pertaining

to the precise effect of a statutory provision

on the interests of the citizen impugning it;

and accordingly the portion of the High

Court judge's decision dealing with the

constitutional issue should be deemed to be

obiter dictum» and the portion of his Order

declaring s.1 of the 1957 Act to be con-

stitutionally invalid would be set aside; but

the remainder of the High Court Order would

be upheld.

Cooke -v- Walsh

[1984] ILRM

208; [1984] IR710 and

Murphy -v- Roche

[1987] IR 106 approved. McDonald -v- Bord

na gCon [1964] IR 350 not followed.

Per

McCarthy J (dissenting): in view of the

overriding importance to the executive

branch of a definitive determination of the

constitutional issue in question, the Court

should determine that issua

PHILLIPS -V- DURGAN SUPREME

COURT 14 DECEMBER

in creating the danger which led to the fire,

he had also erred in law.

Ogwo -v- Taylor

[1987] 2 All ER 961 referred to; (2) although

the Court would normally order a re-trial in

such circumstances, the Court in the instant

case was in as good a position as a court

of trial to assess the issues in the case and

would do so having regard also to the fact

that the injuries had been sustained over ten

years ago; (3) the defendant was negligent

in failing to either warn the plaintiffs of the

dangers associated with the cleaning work

or by providing them with a safe system of

work which avoided the use of the cooker

as a source of hot water.

O'Donoghue -v-

Green

[1967] IR 40 discussed; (4) the

plaintiff husband could not be found guilty

of any contributory negligence in the context

of the injuries he sustained; but the plaintiff

wife could have taken some special

precautions having seen the stuttering

nature of the cooker flame and the amount

of grease in the kitchen; but having regard

to the defendant's main culpability the

degree of contributory negligence would be

assessed at 15%; (5) the level of damages

awarded to the plaintiffs was not outside a

reasonable assessment and would not be

interfered with.

TORT - OCCUPIER'S LIABILITY

WARNING OP DANGER - INVITEES -

CLEANING OF EXCEEDMGtY GREASY

KITCHEN -

FIRE STARTED AND

SPREADING RAPIDLY - RESCUE FROM

FIRE - WHETHER OCCUPIER OWING

DUTY OF CARE TO INVITEES

CONTRIBUTORY

NEGLIGENCE

PRACTICE - SUPREME COURT

ASSESSMENT OF LIABILITY - NO

DISPUTE ON FACTS

The plaintiffs, husband and wife, agreed to

clean the kitchen in the defendant's house

prior to its sale. The plaintiff wife was the

defendant's sister. The plaintiffs were given

no specific instructions or warning by the

defendant prior to beginning the cleaning

work. The gas cooker in the kitchen was full

of grease from frying and three of the four

gas jets were blocked as a result of grease.

The plaintiff wife began boiling a kettle (to

get some hot water for the cleaning) on the

one jet which worked, and that jet was

described as 'stutterring'. There was a large

number of greasy fish and chip bags around

the cooker also and some other paper on the

floor. While the water was boiling the

plaintiff bent down and began to scrape

some grease from the side of the cooker. As

she did so, she slipped and a cloth in her left

hand caught fire in the flame under the

kettle. The cloth dropped on the floor and

fire spread rapidly around the room. She was

dragged out of the kitchen by her husband,

but she sustained severe burns. The plaintiff

husband suffered less severe burns in the

course of rescuing her. In the High Court,

Egan J found for the plaintiffs on the basis

of a 'rescue' principle, but without a specific

finding of negligence by the defendant. He

found no contributory negligence. On appeal

HELD by the Supreme Court (Finlay CJ,

Griffin and Hederman JJ): (1) the rescue

principle is primarily a matter of foresee-

ability of injury arising from the creation of

a danger, and the trial judge had incorrectly

applied the principle; and insofar as he held

that the defendant had not been negligent

CAHILL (MSPECIDR OFTJUCES) *

F REVENUE - MCOME1AX — SEVERANCE

I NORMORRS - WHETHER ARMING FROM

DISABILITY OR REDUNDANCY

EMPLOYER GOING INTO UQUKWION -

WHETHER B4YMENTS RECEIVED PRIOR TO

TERMINATION OF EMPLOYMENT - Income

Tax Act 1967, s.115.

The respondents had been employed by

Henry Ford & Son Ltd. and each had a degree

of disability to one extent or another. In

1984, the company announced the closure

of its production plant in Cork. Prior to 1984,

the company developed a scheme by which

it encouraged disabled employees to take

disability retirement thus avoiding

compulsory disability retirement. In July

1984, protective dismissal notices were

issues to the entire workforce, and in August

the company forwarded a list of employees

(including the respondents) whose

employment was being terminated for

disability. The Inspector replied that tax

should be deducted from all lump sum

payments to employees, and the company

did so. On receipt of the payment, each

employee signed a statement stating that

the payment was in full and final settlement

of any rights, claims and demands arising

from the closure. Subsequently, the

company received 60% of the statutory

element of the sums paid to each employee

whose employment was terminated. The

respondents claimed that no deduction

should have been made as the payments

were made on account of disability and were

thus exempt under s.115 of the 1967 Act.

Two of the respondents were production

workers whose jobs were to go in the

closedown, while the other three

respondents' jobs were to continua In the

Circuit Court the judge held that each of the

payments was exempt under s.115. On

appeal HELD by Carroll J: (1) the

respondents were not estopped from making

their present claim by reason of the

documentation used in accepting the pay-

ment or by the fact that the company

recouped 60% of the statutory element of

the sums paid to the employees; (2) the

three respondents whose jobs were to

continue were entitled to the exemption

from tax under s.115 of the 1967 Act since

the payments were made on account of their

disabilities; (3) the two production workers

were not entitled to the exemption since,

although the payment was made to

someoqp suffering from a disability, it

had not been made on account of the

disability because their jobs were not

continuing after protective notice had

been served; and since this was a mixed

question of fact and law, the Court was

entitled to overturn the decision of the

Circuit Court judge.

Mara -v- Hummingbird

Ltd

[1982] ILRM 421 applied.

IN RE CASEY, A BANKRUPT SUPREME

COURT 21 DECEMBER, 1990

BANKRUPTCY - CREDITOR - CONTRACT

WITH

BANKRUPT

WHETHER

ADJUDICATION HAVING EFFECT OF

TERMINATING CONTRACT — WHETHER

CONTRACT NOVATED BY LAW

WHETHER

OFFICIAL

ASSIGNEE

DISCLAIMING THE CONTRACT

I WHETHER CREDITOR HAVING LIABKJTY IK

BANKRUPT'S ESTATE -

Bankruptcy

| IIreland) (Amendment) Act 1872. a.97.

The bankrupt was a beat farmer who

the beat to Comhlucht Shiicre

EaaomToo (tha.company). The (wins of the

contmcta entered into from time' to time

between the bankrupt and the company

allowed the bankrupt to obtain various

goods on credit, and these were set off

against the beet to be supplied. In April 1981,

a contract was entered into which provided

that previous credits would be payable out

of sums due from the company, and were

a charge against his account with the

company. The adjudication in bankruptcy

took place in July 1981. The company was

informed of the adjudication by letter from

the Official Assignee of 12 November 1981.

The letter indicated that sums due to the

bankrupt should be forwarded to the Official

Assignee. The company applied to claim in

bankruptcy for the sums owed by the

bankrupt. In the High Court, Hamilton P held

that the letter from the Official Assignee had

terminated the contract between the

company and the bankrupt and that the

company was not entitled to what would

amount to a preference in the bankruptcy:

(High Court. 21 July 1986) (1987) 5 ILT

Digest 43. On appeal HELD by the Supreme

Court (Finlay CJ, Griffin and O'Flaherty JJ)

allowing the appeal: (1) the adjudication in

bankruptcy could not have the effect of

terminating the contract between the

company and the bankrupt, but instead it

amounted to a novation of the contract so

that the Official Assignee became entitled to

the bankrupt's rights and obligations under

it, unless these were disclaimed; (2) the

Official Assignee's letter did not amount to

a <*'• -claimer of the contract under s.97 of the

1872 Act, and was precisely to the contrary

effect; and therefore, by virtue of the terms

of the contract the company had no liability

in the bankruptcy and was en .i»led to prove

in the bankruptcy as a creditor against the

estate for the balance between the value of

the beet supplied by the bankrupt and the

goods supplied on credit