The Gazette 1991

461 / 462

held that the trustees could not he entitled to a fee
simple in respect of the entire premises leased by the
rluh since the tennis courts and car park did not
constitute 'permanent buildings' under s. 14 of Ihe
I «>78 Act. On case stated HELD by the Supreme
Court iFinlay CI, Griffin anf O'Flahedy )|); (I) it had
been correctly conceded by counsel for the respon-
dent that the trustees could not he defeated in their
claim for a fee simple merely because their claim
under s.4 of the 1967 Act referred to an area greater
than that to which they had any potential claim. Corr
v Ivers 119491 IR 245 applied; (2) the provisions in
s.l 4 of the 1978 Act, concerning applications for
enlargements of a lease into a fee simple in respect
of parllv-built leases, were only logical or sensible if
construed as referring to portions of land held under
a lease some area of which is subsidiary and ancil-
lary, and some area of which is not; and construed
.n that light the trustees were entitled to claim a fee
simple in respect of the club house and such ground
as is subsidiary and ancillary thereto, the balance of
the ground being deemed to be a vacant lease within
the meaning of s.14 of the 1978 Act.
Mullen v Quinnsworth Ltd (No.2) Su-
preme Court 25 February 1991
OCCUPIER'S LIABILITY — INVITEE —
SUPERMARKET — CUSTOMER SLIP-
PING ON COOKING OIL ON FLOOR
- WHETHER SUPERMARKET EXERCIS-
REASONABLE CARE ^ SYSTEM
f)F CtEATftNCT SPILLAGES -^RESTPSA "
LOQUITOR—ON USON DEFENDANT
TO DISPROVE LIABILITY — SUPREME
COURT— INFERENCES FROM UNDIS-
PUTED FACTS FOUND AT COURT OF
TRIAL
The plaintiff, then aged 74, was a customer in the
defendant company's supermarket. Walking towards
the cake shelf, she slipped in a ;>ool of cooking oil
which was spread over a reasonablv wide area of the
floor and she sustained injuries as a result. The oil
had come from a plastic bottle df cooking oil which
was pad of a large display of cooking oil. The
cooking oil was the same colour as that of the floor.
The plaintiff instituted proceedings arising from the
fall, claiming damages for negligence. At the first
trial of the plaintiff's action, Barrington | withdrew
the case from the jury. On appeal by the plaintiff the
Supreme Coud, holding that the doctrine of res ipsa
loquitor applied, directed a retrial of the action:
11990] 1 IR 59. On remittal to the High Court, the
defendants argued that their system by which an
individual member of staff was designated for
mopping up and sweeping the floor amounted to a
reasonable system and that accordingly they had
discharged their duty of care to the plaintiff as
invitee. Evidence was also given that in the region of
three breakages of the plastic bottles in question
occurred during any given week. An engineer for the
plaintiff gave his opinion that the bottles in question
were unsuitable, being prone to breakage and that
the system of display was also unsuitable. Lynch |
dismissed the plaintiff's claim, being satisfied that
the defendants had not been negligent in all the
circumstances. On appeal by the plaintiff HELD by
the Supreme Court (Griffin, Hederman and Mc-
Carthy ||) allowing the appeal: (1) where no question
arises as to the truthful ness of the witnesses i n a case,
as here, the Supreme Court is in as good a position
as the trial judge to draw its own conclusions or
inferences from facts proved or admitted and to
decide the case accordingly. Northern Bunk Fi-
nance Corp Ltd v Charlton \1979\ IR 149 applied; (2)
the essential question was whether, in all the cir-
cumstances, the defendant took reasonable care to
see that the premises were reasonably safe for the
plaintiff, the onus being on the. defendants; (3)
having regard to the largely uncontroverted evi-
dence for the plaintiff that the plastic bottles were
unsuitable and that the stacking system was also
unsuitable, and also having regard to the fact that the
defendants did not vary the system for cleaning
spillages to take account of particular areas of risk
such as the area involved in the instant case, the
defendants had failed to satisfy the onus on them that
they took reasonable precautions for the plaintiff;
and accordingly a retrial on damages would be
ordered. Per curiam: having regard to the plaintiff's
age. the interests of justice would seem to require
that damages be agreed or that an application for a
very early trial be made to the President of the High
Court. Per McCarthy | (concurring): since the parties
were requested by the Court to argue the case on the
basis of whether reasonable care had been taken,
the issue of strict liability in such cases remained for
future consideration.
Donnelly v Timber Factors Ltd Supreme
Court 25 January 1991
PRACTICE — INTERVENTIONS BY
TRIAL JUDGE IN COURSE OF DAM-
AGES CLAIM — WHETHER EXCESSIVE
— COMMENTS BY TRIAL JUDGE ON
CONDUCT OF WITNESS —WHETHER
AWARD OF DAMAGES SHOULD BE
SET ASIDE
The plaintiff was involved in a collision with a
vehicle driven by an employee of the defendant
company. Liability was accepted and the trial of the
action was confined to assessment of damages. The
plaintiff had had a history of back injury prior to the
collision, but her consultant gave evidence that this
had cleared up at the time of the collision. He also
described the plaintiff as a person who did not
exaggerate her condition. The plaintiff stated that
she was unable to continue with sporting activities
after the collision. The defendant argued that the
plaintiff's injuries were not substantial. The defen-
dant's consultant had examined the plaintiff on two
occasions. It was accepted that the first examination
was not satisfactory. The plaintiff described the
defendant consultant's attitude as 'hostile' and that
he had attempted to minimise her injury. The con-
sultant also had in his possession the plaintiff's
medical records. The trial judge criticised the con-
sultant for his approach to the examination and for
his possession of the plaintiff's records. It emerged,
however, that the defendant's consultant had been
given the medical records by the plaintiff's consult-
ant. The trial judge also intervened on a number of
occasions during the examination of the defendant's
consultant. The trial judge awarded £35,000 in
general damages. The defendant appealed the award.
HELD by the Supreme Court (Hederman, McCarthy
and O'Flaherty ||) dismissing the appeal: (1) the trial
judge's criticism of the defendant's consultant was
severe, for which there was no sup|x>rt in the Iran-
script; and while a judge may lie required on occa-
sion to intervene to maintain an even balance lx*-
tween the parties, in the instant case the trial judge
had, in his criticisms of the defendant's consultant,
failed to conduct the trial in a manner which ion-
formed to the division of functions between a trial
judge and that of counsel; (2) (Hederman and
O'Flaherty ||; McCarthy J dissenting) while the trial
judge had been in error in his criticism, there had not
otherwise been an excessive degree of intervention
by him in the course of the trial; and given the nature
of the defence in the instant case where the defen-
' dant was attempting to minimise the plaintiff's inju-
ries, it was to be expected that the trial judge would
react in a particular way if. as occurred, he accepted
thai the plaintiff was a very genuine witness; and
taking a commonsense view of the gist of the evi-
dence, rather than necessarily the view most favour-
able to the defendant, it would be disproportionate
to the error made by the trial judge to order a retrial
on the assessment of damages, /ones v National
Coal Board |1957| Z QB 55 doubted.
Browne, v Bank of Ireland Finance Ltd
Supreme Court 8 February 1991
REVENUE — CASE STATED —
WHETHER FINDINGS OF CIRCUIT
COURT MAY BE SET ASIDE - WHETHER
FINDINGS REASONABLE — BANKING
BUSINESS ASSOCIATED WITH CREDIT-
FINANCE DIVIDENDS FROM GOVERN*
MENT STOCK — WHETHER INCOME
IN COURSE OF TRADE — Income Tax
Act 1967, s.428(6), Schedule D, Class 1
— Central Bank Act 1971, s.c)
The respondent compuny was engaged in banmr.
activities, including the provision ot creait nnan-
and leasing, but not the operation oi current -
counts. As part of the conditions ot their banxin:
licence under the 1971 Act. the company wa
required to hold a specified number of government
stocks. The Revenue did not accept that the com-
pany's business constituted banking business, and
applied to have the dividend from the government
stock treated as income from trade under Schedule
D, Class 1 of the 1967 Act. In theCircuit Court (judge
Martin) it was held that the dividend did not arise
from the company's trade since it did not deal in
investments in the ordinary course of business and
the gain did not therefore result from its trade. On
case stated the High Court (Blayney I) declined to
interfere with the Circuit Court decision: 119871 19
346. On further appeal by the Revenue HELD by the
Supreme Court (Griffin, Hederman and McCarthy |J)
allowing the appeal: (1) the Coud would only set
aside primary findings of fact where there was no
evidence whatever to support them, and inferences
drawn from primary facts would only be set aside
where no reasonable court or Appeal Commic«ioner
would have drawn such conclusions. Mara v
Hummingbird Ltd 119821 ILRM 421 applied; (2) Ihe
inferences drawn by Ihe Circuit Court judge were
not such as could reasonably have been made, and
he had erred in concluding that the gains from the
government stocks did not form part of the com-
pany's trading profits; (3) since the government
had been bought by the company to comply
with the conditions attached to its banking licence
under the 1971 Af t, it was necessarily done in the
course of its normal trading activities and the real-
ised gains made on redemption of such stix ks were
profits in the nature of trade arwl were chargeable to
lax under Schedule 13. Class I of the 1967 Act.
4 November 1991