The Gazette 1988

GAZETTE

OCTOBER 1988

H e l d : as to the claim for alleged infringement of the Plaintiffs' rights under the Constitution, Articles 41 and 42 impose duties on the State vis-a-vis the family, but in this case the alleged infringer is not the State, but a private company. The rights conferred are: — (a) the right to protection from legislation wh i ch attacks or impairs the Cons- titution or authority of the family, and (b) the right to p r o t e c t i on f r om the deliberate acts of State officials wh i ch attack or impair the Constitution or authority of the family. A private person (or company) whose negligent acts injure the head of a family does not infringe any constitutional right enjoyed by members of the affected family. Accordingly, the Defendants were not guilty of any breach of a constitutional duty imposed on them. No duty of care was owed by the Defendants to the Plaintiffs by virtue of the Constitution. Philip Hosford and Others -v- John Murphy and Sons Ltd. — High Court (per Costello J.) — 24 July 1987 — unreported. Karl Hayes STATUTE OF LIMITATIONS N e ed f or Animus Poaaidendi — G r a z i ng of Cattle held sufficient use to support adverse possession. The Defendant had leased t wo fields, together w i th some other lands from his sister for the purpose of grazing cattle for a number of years up to 1971. In that year she sold the t wo fields. The purchaser, w ho was the plaintiff's predecessor in title purchased the fields w i th the intention of building t wo factories on them. A factory was built on the larger field but nothing was ever built on the smaller field. Notwith- standing the sale the Defendant continued to use the smaller field as before. In addition he created a post and wire fence over portion of the boundary fence between the t wo fields where such was necessary to prevent his cattle from straying onto the factory premises. The Plaintiffs on purchasing the property instituted ejectment proceedings against the Defendant w ho raised the defence that the Plaintiffs claim was statute barred by reason of the adverse possession of the Defendant of the smaller field since 1971. The Plaintiff claimed t h at the possession by the Defendant was not adverse possession for the purpose of the Statute of Limitations because it was not inconsistent w i th the purpose for which the owner of the land intended to use it. The Plaintiff relied on Leigh -v- Jack 5 Ex. D.264 where Cockburn L. C. said " I do not think that any of the Defendant's acts were done with the view of defeating the purpose of the parties to the conveyances; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another's right. The Defendant simply used the land until the time should come for carrying out the object originally contemplated. If a man does not use his land, either by himself or by some person claiming through him, he does not necessarily discontinue his possession of it. I think that the title of the

Plaintiff is not barred by the Statute of Limitations." Bramwell L. J. said: " I n order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent w i th his enjoyment of the soil for the purposes for which he intended to use it." The Court noted that in Leigh -v- Jack it was common case that the land concerned was intended for a street and that until such use was made of it it would remain idle. Having referred to Littledale -v- Liverpool College 11901 ] Ch.190 and Convey -v- Regan [1952] I.R. 56 the Court noted that the decision of Black J. in Convey -v- Regan was based not upon non-interference w i th the purposes to which the owner intended to put the lands but on the absence of animus possidendi. The Court referred then to the recent Irish case of Cork Corporation -v- Lynch (26 July 1985, unreported) in which Egan J. had cited w i th approval a passage from Wa/lis's Cay ton Bay Holiday Camp Ltd. -v- Shell Mex & BP Ltd., [1974] 3 All E.R. 575, where Denning M. R. had said " Wh e re the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it, and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials". The Court also referred to Murphy -v- Murphy [1980] I.R. 183 where Kenny J. had made the point that the question of adverse possession was a question of fact in each case. The Court took the view that adverse possession depended on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use was being made of the land and the claimant knows that the owner intends to use it for a specific purpose in future, this was a fact to be taken into account. The principle has relevance only in so far as when that factor was present it was easier to hold an absence of animus possidendi. The Court noted that it could find nothing in the facts to show that the Defendant intended to use the land upon a temporary basis merely to prevent it lying idle until the owner was in a position to use it for a purpose of which he was aware. The Defendant had made full use of the land to graze cattle which supported the necessary adverse possession. Seamus Durack Manufacturing Ltd. -v- Considine — High Court (per Barron J.) — 27 May 1987 - unreported. J o hn F. Buckley EMPLOYMENT M i n i m um N o t i ce e nd Terms of Employment Act 1973 complied w i th p r o v i d ed t he m i n i m um p e r i od of stetutory notice is included in notice of termination — Notice may be renewed. In 1984, Bolands Limited was in financial difficulties; a Receiver was appointed w ho decided to continue trading in the hope he could sell the business as a going concern. Having informed the unions, he served notice on 3 80 employees; notice was given

Recent I r ish Cases

Edited by Gary Byrne

DAMAGES Tort and Constitution — Children of an i n j u r ed person are not e n t i t l ed to damages, either at Common Law or under the Constitution, against the wrong-doer w h o caused the injuries, for damage to their relationship w i t h their injured parent. Eugene Hosford, father of the present Plaintiffs, suffered a severe electrical shock whilst working for the Defendants in their factory. The accident was caused by negligence on the part of the Defendants, his employers, and resulted in Mr. Hosford sustaining irreversible brain damage. As a result of the accident, he was permanently h o s p i t a l i s ed and w as u n a b le to communicate. He was made a Ward of Court and proceedings were taken on his behalf against the Defendants. The proceedings were settled w i th the approval of the President of the High Court for £ 4 2 0 , 0 0 0. The Plaintiffs are the five children of Mr. Hosford, whose ages at the date of the accident ranged from four to 12 years. Each of the Plaintiffs, it was claimed, was a member of a family unit of wh i ch Mr. Hosford was father and head, and each was entitled to the benefits of a moral, intellectual, religious and educational nature, being the benefits which flow from the love and affection, the guidance and example wh i ch the father of a family bestows on his children. The Plaintiffs claimed that they were deprived of these benefits as a result of the injuries their father had sustained. The Plaintiffs made their claim firstly in tort, alleging that the Defendants owed a duty of care not only to Mr. Hosford but also tc his children, and secondly under the Constitution, claiming that the negligence of the Defendants amounted to an infringe- ment of the rights conferred by Article 41 and Article 4 2 of the Constitution. Held: as to the claim in tort, that the harm wh i ch the Plaintiffs allege they suffered is not of a kind for which compensation will be awarded. Although damages for nervous shock are recoverable at Common Law, damages for grief and sorrow are not, and thus damages for the type of harm claimed by the plaintiffs are also irrecoverable. It w o u l d require an e n a c t me nt of the legislature to permit damages to be recovered by the members of the family of an injured person " i n respect of damage to the continuity, stability and quality of the relationship w i th the injured person".

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