393 / 406
GAZETTE
JULY/AUGUST 1985
course, once an irregularity or defect
is established in the impunged
proceedings would be to debase this
great remedy".
2. Notwithstanding the District Court
Rules providing for the making up of
an order and for the issuing of
certified copies of it, where the entry
in a Justice's Minute Book — a
charge sheet is equivalent for this
purpose — is complete and not
merely informal or an aid to
memory, that in itself can be, if
properly proved, a good record of
the order.
The State (Frank Redmond)
-v-
District
Justice Sean S. Delap - High Court (per
Finlay P.), 30 July, 1984 - unreported.
Joseph B. Mannix
TORT
Negligence and breach of Statutory
Duty — Section 37 Factories Act 1955 —
Subcontractor killed in fall through
skylight — acting outside range of duties
required — Defendant not responsible
either as employer or occupier.
The Defendant engaged Timothy
Emery as an independent contractor to
do repairs on its factory roof. Mr. Emery
engaged the deceased and Redmond
O'Brien as sub-contractors. Their work
was to be done from a forklift, viz., to
repair the gutters and to apply aluminium
paint to so much of the roof as could be
reached from the forklift, using an
extended brush. They were not required
to go onto the roof. Any work that had to
be done by going onto the roof was done
by Mr. Emery himself who for this
purpose would wear rubber shoes and
had a rope safely secured and tied around
his waist as a lifeline. While Mr. Emery
was away, O'Brien and the deceased went
onto the roof to repair a damaged
skylight. The deceased put his foot on the
perspex skylight and was fatally injured
when he fell through to the factory floor
below.
The Plaintiff, widow of the deceased,
claimed Damages based on alleged
negligence and breach of Statutory Duty
of the Defendant. Mr. Emery was not
sued possibly because he was an
undischarged bankrupt and a judgment
against him would probably be of no
value. The only breach of Statutory Duty
that could apply on the evidence in the
High Court would be a breach of s.37 of
the Factories Act 1955. In the High Court
the case was tried by a Judge without a
Jury. The Judge made no finding on the
issue of breach of Statutory Duty but he
found that the deceased had an implied
invitation to go onto the roof to fix the
skylight and he held that the fatal
accident was the result of negligence on
the part of the Defendant and contribu-
tory negligence on the part of the
deceased. Fault was apportioned 80 per
cent on the Defendant and 20 per cent on
the deceased. The Supreme Court on
appeal HELD:
The finding of negligence against the
Defendant could not stand. The
finding by the High Court Judge that
the deceased had an implied invitation
to go onto the roof was not open on
the evidence. Any implied invitation
was to go to whatever part of the
factory it was necessary to go for the
purpose of doing the work he was
engaged by Mr. Emery to do. Even if it
could be deduced from the evidence
that he was an invitee, the particular
perspex skylight was plain to see and it
could not be said to be a hidden or
unusual danger.
The alternative claim based on breach
of s.37 of the Factories Act 1955 could
not be successfully made out. The
relevant Statutory Duty is;
"(1) There shall, so far as is
r e a s o n a b ly p r a c t i c a b l e, be
provided and maintained safe
means of access to every place at
which any person has at any time
to work.
(2) Where any person is to work at a
place from which he will be liable
to fall a distance more than ten
feet, then, unless the place is one
which affords secure foothold
and, where necessary, secure
hand hold, means shall be
provided, so far as is reasonably
practicable, by fencing or
otherwise for ensuring his
safety."
Before the Plaintiff could successfully
invoke subsection (1) it would have to be
shown that the roof was a place where the
deceased had to work and before sub-
section (2) could be relied on, that the
roof was a place where he was to work.
The roof was not a place where the
deceased had to work or was to work and
the plea of breach of statutory duty failed.
Appeal allowed and claim dismissed.
Margaret Veronica Daly
-v-
Avonmore
Creameries Limited - Supreme Court (per
Henchy J., Hederman J. concurring -
McCarthy J.) Diss., 12 July, 1984 -
unreported.
Franklin J. O'Sullivan
ADMINISTRATIVE LAW
Ultra Vires — Section 38 Health Act,
1970 — Interpretation of Statute —
Declaratory Action — Appeal to the
Supreme Court — Ministerial Order
quashed.
The North Eastern Health Board was
established with other similar Boards
under the provisions of The Health Act,
1970 to cover the Counties of Monaghan,
Cavan, Louth and Meath. The Minister
for Health decided to build a new General
Hospital in Cavan to replace three
existing hospitals in Cavan, Lisdarn and
Mo n a g h a n.
Ha v i ng
e n c o u n t e r ed
sustained local opposition the Minister
modified his plans to allow the hospital in
Monaghan to remain open but he ordered
that the Gynaecological Unit of that
hospital close. The Minister purported to
exercise his powers for this closure under
Section 38 of The Health Act, 1970 which
provides:—
(1) A Health Board may, with consent
of the Minister, provide and
maintain any hospital, sanitorium,
home, laboratory, clinic, health
centre or similar premises required
for the provision of services under
the Health Acts, 1947 to 1970.
(2) The Minister may give to a Health
Board such direction as he thinks fit
in relation to the provision or
maintenance of any premises
provided and maintained under
Sub-section (l)and in relation to the
arrangements for providing services
therein, and the Health Board shall
comply with any such direction.
(3) A Health Board may and, if directed
by the Minister, shall, discontinue
the provision and maintenance of
any p r emi s es p r o v i d ed
and
maintained by it under Sub-section
(1).
(4) The Health Board shall not exercise
its powers under Sub-section (3) in
relation to the discontinuance of the
provision and maintenance of a
hospital, sanitorium or home save
with the consent of the Minister.
(5) The Minister shall not give a
direction under Sub-section (3) in
relation to the discontinuance of the
provision and maintenance of a
hospital, sanitorium or home save
after having caused a local enquiry
to be held into the desirability of the
discontinuance.
The Plaintiffs brought an action in the
High Court seeking a Declaration that
the decision of the Minister was
ultra vires
and accordingly illegal and void. The
Plaintiffs challenge was made on two
grounds:—
(i) Since the Monaghan Hospital was
erected in 1937, it was a hospital to
which Section 38 of the Act, 1970 did
not apply;
(ii) If Section 38 did apply, Sub-section
(2) of that Section, on which counsel
for the Minister relied, did not
empower the Minister to direct the
Board to discontinue the provision
of G y n a e c o l o g i c al
s e r v i c e s.
(Counsel for the Minister conceded
that if that Sub-section did not give
the Minister that power, there was
no other statutory provision on
which he could rely).
The Minister relied on Section 38(2) of
xxii