325 / 330
GAZETTE
JULY/AUGUST 1986
responsible for the supervision, direction
and control of the employee.
The employee's agreement with the
Bureau included a provision which stated
that her hourly rate of pay included a sum
to cover holiday pay.
The Defendant employed other typists as
members of its permanent staff. These
typists were engaged in a different manner
to temporary typists such as the employee
in question and they were provided with
formal letters of appointment.
The Holidays (Employees) Act provides
that "employ" means "employ under a
contract of service (whether the contract is
expressed or implied or is oral or in writing)
or a contract of apprenticeship, and
cognate
words
shall
be
construed
accordingly".
The Court considered that the primary
question for consideration was whether or
not a contract existed between the
Defendant and the employee. Only if a
contract existed would it be necessary to
determine whether or not it was a contract
of service. For a contract to exist, the
Court considered that there must be an
agreement between the parties under which
rights and duties enforceable
inter se
had
been created.
The Court referred to the U.K. case of
Construction
Industry Training Board
-v-
Labour Force Ltd.
[1970] 3 All E.R. 220
which raised similar issues concerning the
status of contractors and workmen. The
decision in that case involved a determina-
tion that there was no contractual relation-
ship between the contractors and ihe
workmen either directly or through the
agency of the Respondents. The High
Court considered that this decison lent
support for the conclusion that no contract
either express or implied, existed between
the Defendant and the employee in this
case.
HELD:
So far as the Defendant was concerned,
its rights and duties to the employee were
enforceable solely under its agreement with
the Bureau. Similarly, the rights and duties
of the employee were enforceable solely
under the terms of her separate agreement
with the Bureau. Thus, there was no room
for any implied contractual relationship
between the Defendant and the employee.
The Minister
for
Labour
-v-
PMPA
Insurance
Company
(Under
Administration)
- High Court (per Barron
J), 16 April 1986 - unreported.
Declan Madden
NEGLIGENCE
Damages - Destruction of brochures used
in mail order business - Future loss of
profits - Remoteness-test - foreseeability of
loss - assessment.
The Plaintiffs' warehouse was flooded
on 10 September 1981 due to the first
named Defendant's negligence (not in
issue). Stored there were brochures which
the Plaintiffs had planned to use in a sales
campaign in the mail order market in the
U.S. Preliminary leaflets had been posted
inviting interested persons to send for the
brochures. As a result of the flood these
brochures were destroyed. The Plaintiffs
were unsuccessful in getting the brochures
re-printed in time to post them in order to
exploit the Christmas market. The action
having been discontinued as against the
second named Defendant the Plaintiff
claimed Damages from the first named
Defendants
under
various
heads,
including, in particular, future loss of
profits arising from the destruction of the
brochures. The Defendant contended (1)
that no one could have anticipated that the
loss of the brochures would have resulted
in such a large claim for loss of profits; (2)
that no one could have foreseen that the
Plaintiffs would not have succeeded in
getting the brochures reprinted in time to
exploit the Christmas market.
HELD:
The test for remoteness of damage is
foreseeability, i.e., whether the damage is
of such a kind as a reasonable man would
have foreseen (see the
Wagon-Mound
Case
[1961) 2WLR 126). So the question was
whether the damage flowing from the loss
of brochures was foreseeable.
The mail order business in the United
States is well researched and is predictable
to a reasonable extent. There was a
considerable body of evidence to show that
the Christmas market is the important one;
that brochures must reach that market in
time for customers to send their orders and
receive them back in time for Christmas;
that a proportion of those who order at
Christmas one year will order again during
the coming year and that some orders come
from those who see the brochures casually.
All of these consequences could have
been foreseen by a person with a
knowledge of the mail order business when
the loss of the brochures was known. The
doctrine of foreseeability does not extend
to expecting a Defendant to foresee the
type of goods which might be in a
warehouse, it must take the responsibility
for damaging whatever goods are there. It
is also foreseeable that
because
a
warehouse is part of the world of
commerce, there will be economic loss and
possible loss of profits. If the goods cannot
be replaced at cost or if the goods cannot
be replaced, then the economic loss,
including loss of profits, is foreseeable.
The economic consequences of the loss
of
the
brochures
was
immediately
predictable at the time of the damage.
What was unforeseen in this case was that
the Plaintiff could not get a reprint of the
brochures in time. But this is a separate
issue and concerns the duty of the Plaintiff
to mitigate. Different considerations apply.
The Plaintiff's duty is to take all
reasonable steps to mitigate. The Court
being satisfied that this was done, then the
fact that the inability of the Plaintiff to
mitigate was unforeseeable, is not relevant.
Damages assessed accordingly. Ten per
cent deduction on net profits in respect of
normal business risks allowed.
William Egan & Sons Ltd. -v- John Sisk &
Sons Ltd. and Lee Garage (Cork) Ltd. —
High Court (per Carroll J.), 6 May 1985
[1986] ILRM 283).
Franklin J. O'SUIivan
EXTRADITION
The Constitution: Offence connected with
a political offence to further aims of
proscribed organisation; objectives include
destruction of Constitution by means
prohibited by it • offence not "political".
Extradition of the Plaintiff was sought
on a U.K. Warrant on a charge of
obtaining money by false pretences with
travellers' cheques. The Plaintiff alleged
the offences were committed to further the
aims of the INLA and that that organisa-
tion directed him to commit the offences
charged. The purpose of the offences was
to obtain funds for the INLA which was a
proscribed organisation. The Plaintiff
appealed to the High Court pursuant to
Section 50 of the Extradition Act 1965 on
the ground that the offence charged was an
offence connected with a Political Offence.
HELD:
(1) There is no complete definition of
Political Offence for the purposes of
Extradition Law. It is probably not
desirable to attempt a precise definition.
(2) The Extradition Act 1965 must be
interpreted
in
accordance
with
the
Constitution.
(3) The aims of the INLA are the
establishment of a thirty-two county
workers Republic by force of arms. This
necessarily involves destruction of the
Constitution
by means expressly
or
impliedly prohibited by it (Articles 15.6
and 39 of the Constitution). To interpret
Section 50 of the Extradition Act 1965 as
granting immunity to a person charged
with such an offence would give to this
Section
a
patently
unconstitutional
construction. The Court cannot interpret
an act of the Oireachtas as granting
immunity from Extradition to a person
charged with an offence, the admitted
purpose of which is to further or facilitate
the overthrow
by
violence of
the
Constitution and the organs of the State
established thereby. Appeal dismissed.
John Patrick Quinn
-v-
Laurence Wren —
Supreme Court (per Finlay C.J.,
Henchy
J., Griffin J. concurring,
Hederman
J.,
McCarthy
J.), 28 February,
1985 —
unreported.
Eugene T. Tormey
PRACTICE AND PROCEDURE
Dismissal of postman - injunction sought
to prevent dismissal - criminal proceedlngs-
DPP appoints Post Office Solicitor -
ultra
vires
powers of DPP - injustice of Plaintiff.
Stephen Flynn, a postman employed by
the Post Office, was formerly employed by
the Department of Post & Telegraphs. He
was suspended on 9 May, 1984 without pay
by the Post Office. On 17 July, 1984 he
issued High Court proceedings against the
Post Office seeking declarations that his
suspension was invalid and seeking to have
his job restored. On 18 July, 1984 the
Director of Public Prosecutions issued a
Summons against Flynn charging him with
certain indictable offences contrary to the
Post Office Act, 1908 as amended. On 25
July, 1984 Flynn applied for an Inter-
locutory Injunction against the Post Office
restraining them from implementing the
suspension. This application was refused in
the High Court.
In September 1984, Flynn appeared
before the District Court for preliminary
examination on various charges. The
Director of Public Prosecutions was
represented by Counsel instructed by Mr.
D.C. Stuart, Solicitor for the Post Office.
In November 1984, a Book of Evidence
vii