The Gazette 1988

OCTOBER 1988

GAZETTE

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

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

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