Previous Page  589 / 822 Next Page
Information
Show Menu
Previous Page 589 / 822 Next Page
Page Background

GAZETTE

OCTOBER 1988

limit was in breach of Section 2(c) of the

Employment Equality Act, 1977. This con-

tention was upheld by the Equality Officer

w h o carried out the initial investigation

under the procedures for complaint laid

d o w n by the 1977 Act. The finding was

upheld by the Labour Court but the deter-

mination of the Labour Court was set aside

by the High Court on a point of law. The

Plaintiff appealed to the Supreme Court.

The Supreme Court noted that the

conclusions of fact reached by the Equality

Officer at the initial hearing were not sub-

sequently challenged in the proceedings

before the Labour Court and the High Court.

It noted that in his judgment in the High

Court, Barron J. had considered that he had

to determine the issues before him " o n the

basis of the assumptions of fact which have

been made by the Equality Officer and

inferentially accepted by the (Labour)

Co u r t ". Thus the Supreme Court took the

view that the assumptions of fact made by

the Equality Officer could not now be

challenged by the Health Board particularly

having regard to the fact that it had failed

to accept the opportunity offered by the

High Court to have the matter remitted to

the Labour Court to make specific findings

of fact.

The Supreme Court thus took the view

that in this case one had to assume that

main arguments made by the plaintiff were

true, i.e. (a) that the upper age limit of 27

operated to the detriment principally of those

persons over 27 w ho are attempting to

embark on or re-launch a career, and (b) that

it was self-evident that a significantly higher

proportion of married w o m en aged over 27

than of either single w o m en aged over 27,

or of men of either marital status aged over

27 find themselves attempting to embark on

or re-launch their careers.

On the basis that these arguments were

true, the Court considered that the finding

of indirect discrimination would appear to be

justified, since the imposition of the age

limit, itself reflecting neither sex nor marital

status discrimination, has, on the facts the

effect that a significantly higher proportion

of married w o m en aged over 27 are

excluded. Thus the appeal was allowed.

The Court emphasised that the decision

of the Labour Court should not be taken as

a precedent upon which a conclusion could

safely be based that relatively low age limits

can or do constitute indirect discrimination

within the meaning of the 1977 Act. The

Court advised that the nature of the Equality

Officer and Labour Court proceedings should

be revised so as to ensure that unequivocal

findings of fact made referable to the

evidence upon w h i ch they have been

founded are stated in their recommendations

and determinations.

North Western Health Board

-v-

Catherine

Martyn — Supreme Court (per Finlay C. J.,

Hederman

and McCarthy

J. J.) — 21

December

1987 —

unreported.

Daclan Maddan

NEGLIGENCE

Roof of Defendant's pramisas dasignad

by third party — Infant Plaintiff injured

in fall f r om roof - Defendant aware of

Plaintiff's prasanca — Nexus of causa

and affect from any negligence in design

destroyed — Third party not liable.

The Plaintiff w h o was then 16 years of age

fell f r om an unprotected roof of the

Defendant's Bank premises and injured

himself. The premises had been extended or

renovated. There were t w o roofs: one gave

access to the residential portion of the Bank

premises w h i ch was reached by a concrete

stairway from the garden at the rear thereof;

the second, wh i ch was lower in height than

the other and immediately beyond it,

contained no fence or parapet around it

other than a small 4Vi inch coping stone.

There was no direct access to it nor did it

appear from the evidence to have been

designed as a roof to wh i ch access would

be gained otherwise than for maintenance

or repair purposes. Access could, however,

easily be obtained to it by a person

ascending the stone staircase to the upper

roof, w h o climbed over a relatively low wall

and on to it. Access could also be easily

obtained to it by a person climbing over the

parapet wall of the upper roof and dropping

d o wn to the lower roof. On the date of the

accident the evidence given showed that the

Plaintiff was playing w i th other boys on the

lower unprotected roof. On catching a ball

thrown to him by one of his companions he

turned and fell over the coping stone d o wn

to the ground. He suffered extremely severe

injuries.

The a r c h i t e c ts r e s p o n s i b le for the

extension or renovation were named as Third

Parties in the High Court proceedings. It was

decided that the Plaintiff's action against the

Defendant would be heard before a Judge

and Jury and the Defendant's action against

the third party would be heard before the

same Judge without a Jury. The Jury found

the Defendant 91% and the Plaintiff 9 %

liable in this case. The High Court held that

the third party was 3 0 % liable in this case.

The High Court considered that the third

p a r ty s h o u ld have e n s u r ed t h at an

appropriate retaining wall or a railing around

the roof to w h i ch it was intended persons

w o u ld have access, be erected. The

Defendants settled with the Plaintiff without

the prior approval or consent of the third

party.

On Appeal the third party,

inter

alia,

contended:

(1) Applying the principles laid d o wn in the

case

Conole -v- The Redbank

Oyster

Company

[19761 I.R. 191 that even if

one assumed that the architects were

negligent in failing to provide in their

plans for protection of the lower roof

that the finding by the Jury that the

Defendants, their servants or agents

were aware that boys, including the

Plaintiff, were liable to play on this roof

before the date on wh i ch the accident

h a p p e n e d, c o n s t i t u t ed their c o n-

sequential negligence as a

novus actus

interveniens

and that it was not open to

the Court to hold that there was any

nexus between the negligence of the

architects and the happening of the

accident.

(2) In the alternative a proper consideration

of the degrees of fault as between the

Defendants and the third party and the

Plaintiff, even if the third party were

properly to be held a concurrent wrong-

doer with the Defendants was such that

the default of the third party was

minimal and not such as would support

any finding of contribution against them.

(3) T he D e f e n d a n ts in the f o r m of

settlement reached by them w i th the

Plaintiff had failed to bar the injured

party's claim against the third party and

that was a condition precedent, having

regard to the provisions of Section 22(1)

of the Civil Liability Act 1961, to the

Defendant's claim against the third

party and that it, therefore, failed.

The Supreme Court in allowing the appeal

held: it was not open to the High Court to

hold that a sufficient nexus or connection

existed between any negligence or default

on the part of the third party and the

happening of this accident so as to

constitute the third party a concurrent

w r o n g d o er w i t h the defendants and,

therefore, liable to make contribution or

indemnity. It could not reasonably have been

foreseen by the third party that the boys

would be permitted by the Defendant to play

energetic games upon the unguarded roof.

The Court followed the decision in

Conole

-v- The Redbank Oyster Company

[19761

I.R. 191 and in particular the dicta of Henchy

J. at page 196 of the report:

" If the defect becomes patent to the

person ultimately injured and he chooses to

ignore it or to an intermediate handler w o

ignores it and subjects the person ultimately

injured to that k n o wn risk, the person w h o

originally put forward the article is not liable

to the injured person. In such circumstances

the nexus of cause and effect in terms of the

law of tort has been sundered as far as the

injured person is concerned."

The Defendant was completely aware of

the danger of permitting boys to play on the

unguarded roof and negligent in permitting

the continuance of the playing by the boys

on the roof.

Having reached that decision the Court

found it unnecessary to express a view on

issues wh i ch arose in the case concerning

in particular the provisions of Sections 21,

22 and 29 of the Civil Liabilty Act 1961.

Brian Crowley -v- Allied Irish Banks

Limited

and O'Flynn, Greene, Buchan & Pratners —

Supreme Court (per Finlay C. J., nem diss.)

- 4 November

1987 - [1988] ILRM 225.

Franklin O'Sullivan

INSURANCE

Contract — Breach of Contract and

Negligence — Claim for Indemnity —

Profaasional Indemnity Policy — Public

Liability Policy.

The Plaintiffs had agreed to construct a tank

for the storage of molasses in Limerick.

When constructed the tank proved to be "for

all practical purposes useless for the storage

of molasses". Following a claim for breach

of contract and negligence the Plaintiffs

agreed to pay £150,000 and costs in

settlement.

Plaintiffs had a professional indemnity

policy (PI policy) and a public liability policy

w i th the Defendants and claimed indemnity

from the Defendants against the £150,000

plus costs, together w i th interest under

either or both policies.

The Defendants alleged that the claim fell

outside the scope of the policy as it was a

mixed claim of negligence and breach of

iii