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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