The Gazette 1991

Court should refuse to construe it; and having regard

to dictionary definitions, which defined depraved as

'immoral, vicious, unprincipled, wicked' thdre was

ample evidence on which the judge of the District

Court could conclude that the applicants were of so

immoral and vicious a character that they were not

fit to be detained in a place of detention provided

under the 1908 Act; (3) the evidence indicated that

the applicants were not being detained in accor-

dance with rr. 223 and 224 of the 1947 Prison Rules,

but the question arose as to whether such non-

compliance entitled the applicants to the form of

relief sought, since they did not seek release from

custody, and further argument was required.

The

State (Comerford) v Governor of Mountjoy Prison

11981| ILRM 86 referred to.

Conway v Irish National Teachers Or-

ganisation and Ors Supreme Court 14

February

1991

DAMAGES — EXEMPLARY DAMAGES

— BREACH OF CONSTITUTIONAL

"MGHT — CONSPIRACY TO DEPRIVE

CHILD OF PRIMARY EDUCATION —

WHETHER EXEMPLARY DAMAGES

SHOULD BE AWARDED — WHETHER

DISTINCTION EXISTS BETWEEN PUNI-

TIVE AND EXEMPLARY DAMAGES -

GENERAL DAMAGES — WHETHER

EXCESSIVE — Civil Liability Act 1961,

ss.7,

The plaintiff

had been attending primary school in

1976 when a teachers' strike, organised j y the

I.N.T.O., began and which lasted until February

1977. In proceedings arising out of the dispute it was

indicated that the I.N.T.O. had acted in breach of the

pupils' constitutional right to primary education

under Article 42.4:

Crowley v Ireland

[19801 IR 102.

Subsequently, approximately 70 pupils instituted

proceedings claiming damages for breach of their

rights. The plaintiff in the instant case was measured

as havinR an IQ of 126, being in the top 5% of the

population. In the High Court, Barron ) assessed

.eneral damages at £10,000 and he also awarded

exemplary damages of 1,500: (High Court, 2 No-

vember 1988) (1989) 7ILT Digest 123. On appeal by

the I.N.T.O.

HELD

by the Supreme Court (Finlay C),

Griffin and McCarthy ))) dismissing the appeal: (1)

notwithstanding the apparent distinction made in

ss.7 and 14 of the 1961 Act between punitive and

exemplary damages, there was no distinction in law

between them and they must be taken to mean the

same thing.

Dicta

Kennedy v Ireland

119881 ILRM

472; 11987] IR 587 not followed; (2) the courts were

not limited to awarding exemplary damages to

instances where the defendants constituted servants

or agents of the executive, since if that were so the

courts would be setting at nought the rights con-

tained in the Constitution.

Dicta

The State (Quinn)

v Ryan

|1965| IR 70 applied;

dicta

Rookes v

Barnard

119641 AC 1129 not followed; (3) exem-

plary damages would not, however, be appropriate

in every instance of a breach of constitutional rights,

and the court must look at the surrounding circum-

stances of each case to determine whether exem-

plary damages should he awarded; (4) while a claim

for exemplary damages should normally be in-

cluded in pleadings, the plaintiff should not be

deprived of her claim for exemplary damages since

the defendants at no time sought to challenge the

failure to include such claim in the course of the trial

in the High Court; (5) in the instant case, exemplary

damages were appropriate in view of the concerted

activities of the I.N.T.O., representing all primary

teachers in the State, and also having regard to the

fact that the constitutional right in question was

vested in the plaintiff as an individual and that the.

breach of the right was an intended, as opposed to

an inadvertent, consequence of the I.N.T.O. strike;

(6) while in certain cases, where exemplary dam-

ages might otherwise be appropriate, the level of

compensatory damages might be sufficient to con-

stitute public disapproval of the wrongdoing, in the

instant case the trial judge had not erred in awarding

exemplary damages, nor had he erred in the actual

amount awarded; (7) having regard to the evidence

adduced in the High Court, the trial judge had not

erred in the award of general damages.

In re D.G., an Infant; O.G. v An Bord

Uchtala and Ors High Court, 9 Novem-

ber 1990; Supreme Court, 26 February

1991

FAMILY LAW — ADOPTION — CON-

SENT—WHETHER FULLY INFORMED

— WHETHER ADOPTION SOCIETY

COMPLIED WITH STATUTORY OBLI-

GATION TO INFORM MOTHER OF

CONSEQUENCES OF CONSENT —

MOTHER ADVISED BY SOCIAL

WORKER EMPLOYED BY CHARITABLE

ORGANISATION SUPREME COURT-

WHETHER INFERENCES DRAWN BY

HIGH COURT JUDGE CONSISTENT

WITH EVIDENCE — Adoption Act 1952,

s.39—Guardianship of Infants Act 1964,

s.11 - Adoption Act 1974, s.3

The child, D.G., was born in January 1987. His

mother was 15 years old when she became preg-

nant. Prior to the birth, the mother had discussed

adoption with a social worker and had indicated

that she intended to have her child adopted. The

social worker was an employee of Barnardo's, a

charitable organisation, and the mother continued

to be counselled by Barnardo's up to June 1989. The

child was put into short term fostering for a time, but

the mother resumed caring for the child and she

resided in various residences for unmarried moth-

ers. She returned with the child to her parent's house

in May 1988, but in October 1988 she informed the

Barnardo's social worker that she intended to place

the child for adoption. The social worker made

inquiries through an Adoption Society about pro-

spective adoptive parents, and in December 1988,

the mother signed a consent to adoption, having had

it explained to her by the Barnardo's social worker.

Later that month the child was placed with the

adoptive parents and remained in their custody

thereafter. In March 1989, the child's father applied

to be appointed guardian pursuant to the Status of

Children Act 1987; during these proceedings the

mother re-stated her wish that the child be adopted.

In June 1989, however, the mother wrote to the

respondent Bord and to the Adoption Society with-

drawing her consent to adoption. She instituted

proceedings seeking the return of the child; the

adoptive parents also instituted proceedings seeking

to dispense with the mother's consent under s.3 of

the 1974 Act and seeking custody of the child.

HELD

by Lavan ]: (1) the Adoption Society had failed to

comply with s.39 of the 1952 Act since it had not

actually furnished to the mother the statutorily pre-

scribed form of consent and the explanation of that

consent; it was not sufficient for the Adoption Soci-

ety to claim that the Barnardo's social worker had

discussed the issue of consent with the mother; and

in the circumstances the Court could not hold that

the mother's consent should be dispensed with

since there had been no valid conscnt; (2) the

mother's consent was also flawed arising from the

conflict of interest in which the Barnardo's social

workers were in as between the mother and any

prospective adoptive parents, and having regard to

tht inadequate and unsound advice given hy the

social workers, the question of dispensing with the

mother's consent under s.3 of the 1974 Act did not

arise; (3) the welfare of the child did not require that

he remain in the custody of the adoptive parents

and, while he had been with them for almost two

years, he should be returned to the custody of the

mother. On appeal

HELD

hy the Supreme Court

(Finlay CJ, McCarthy and O'Flaherty JJ) allowing the

appeal and remitting the case to the High Court: (1)

the requirements of s.39 of the 1952 Act had been

complied with in the instant case since the mother

had signed the prescribed consent form, and there

was nothing in s.39 to indicate that the Adoption

Society was required to furnish the consent form

through its servants or agents; and in the circum-

stances the trial judge's finding that the adoption

was invalid for non-compliance with s.39 should be

set aside; (2) a fully informed consent to placement

for adoption requires that the mother

is aware, at

tn*

time or ner

agreement to placement, mat a court ma*

dispense with

her consent under s

.3 at

the 1974 Ac

Dicta

C. v

Art Bord

Uchtala

(1980! IR

at>

proved-

(3)

the conclusions reached bv the

trw

judge as

to the quality ofthe mother

consent in

tn«-

instant

case had been largely influenced by ni-

opinion as to the conduct of the social workers who

had counselled the mother, but there was no foun-

dation in the evidence before him for the conclu-

sions which he had drawn; and in the-circumstances

the case would be remitted to the High Court for a

determination as to whether a valid consent had

been given, and if so, whether the consent should be

dispensed with.

Fitzgerald and Ors v Corcoran Supreme

Court

February 1991

LAND LAW — LANDLORD AND TEN-

ANT — SPORTING LEASE — TENNIS

CLUB — PARTLY-BUILT LEASE — AP-

PLICATION TO ENLARGE LEASE INTO

FEE SIMPLE — APPLICATION FOR

ENTIRE OF LAND CONTAINED IN

.LEASE — WHETHER FEE SIMPLE

SHOULD BE GRANTED FOR CLUB

HOUSE AND SURROUNDING AREA

— Landlord and Tenant (Ground Rents)

Act 1967, s.4 Landlord and Tenant

(Amendment) Act 1971 — Landlord and

Tenant (Ground Rents) (No.2) Act 1978,

s.14

The applicants were the trustees of Castleknock

Tennis Club. They held a 35 year lease in respect of

the club premises from the respondent landlord. The

lease was a sporting lease within the meaning of the

1971 Act. The trustees applied, under s.4 of the 1967

Act, for an enlargement of their interest in the

premises into a fee simple. The application was

allowed by the County Registrar, but on appeal by

the respondent was rejected in the Circuit Court.

The trustees appealed to the High Court. Lardner |

November 1991