The Gazette 1972

UNREPORTED IRISH CASES

in immediately paying workmen's compensation could eliminate the danger of being sued at common law. (6) The real effect of Section 60 is that it did not prevent an employer choosing to pay under both head- ings if he so wished, and if he voluntarily paid work- men's compensation in the first instance. Therefore the statutory provision which provides that an injured party having alternative remedies against the party who is insurable for the injury may not make the second party liable to pay under both headings, is not inconsis- tent with the Constitution. (7) At common law, it was necessary to prove fault, whereas workmen's compensation is statutory. This Court is established under the 1961 Act and is free not to follow decisions of the former Supreme Court. Section 60 of the 1934 Act was not affected by the ordinary period of limitation in respect of common law actions brought by workmen, provided they had not accepted workmen's compensation under the Act. Accordingly Pringle J. was correct in holding that Section 60 (2) was carried over by the Constitution, and that the plaintiff's proceedings are not maintain- able because the appeal was not instituted in time. The appeal was accordingly dismissed by the full Supreme Court. (8) It is also clear that Section 6 of the 1953 Act does conform with Article 40(1) or Article 40(3) of the Constitution. This section states that, if pro- ceedings are not instituted within 12 months of the accident, then they can be instituted within the follow- ing 12 months only if substantial grounds are advanced; the section purports only to cut down the time in respect of those who have actually received payment of compensation under the Act. Economic compensation may force a workman to claim and accept compensation under the Act, and yet he should not thereby be de- barred from seeking further relief under common law. The State may differentiate between citizens in pursuit of personal rights—in O'Brien v. Keogh , it was held that Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances. Section 6 has protected workmen from their previous vulnerable position, and has placed them in a more advantageous position. It does not conflict with Article (40)1 of the Constitution. As regards Article 40(3) of the Constitution, it is clear that Section 6 of the 1953 Act does adequately defend and vindicate the personal rights of the workmen. [O'Brien v. Manufacturing Engineering Co. Ltd.; Supreme Court; unreported; per Walsh, J.; 28th July 1972.] Judge wrongly admits confession as not made voluntarily and acquits aicused—Reference to Supreme Court under Criminal Procedure Act, 1967. (1) Section 34 of the Criminal Procedure Act 1967 provides that, if a verdict on a question of law is found by direction of the trial judge, The Attorney General, may, without prejudice to this verdict refer this question of law to the Supreme Court by means of a statement to be settled by the Attorney General in consultation with the Judge. - 2 7 1

Section 60 of Workmen's Compensation Act 1934 and Section 6 of the Act of 1953, which prohibit a workman from taking a civil action for negligence unless within a specified time, of accepting com- pensation, do not conflict with the Constitution. (1) On 12th December 1963, the plaintiff, who was in the employment of the defendants, sustained an acci- dent in the course of his employment and he alleges negligence and breach of statutory duty against the defendants. (2) On 7th March 1966, he issued proceedings in the High Court for damages and negligence, and de- livered a statement of claim on 21st December 1967. The defendants denied negligence, and pleaded con- tributory negligence. (3) The defendants also contended that, while the plaintiff was incapacitated, the defendants paid him a weekly sum of £4.50 for workmen's compensation. They pleaded that the plaintiff's proceedings were not maintainable as not having been commenced within the statutory time allotted by Section 60 of the Workmens Compensation Act 1934. The plaintiff replied that Section 60 was unconstitutional, as it had not been carried over by the Constitution. On 7th March 1969, an order directed that a judge alone should try these preliminary issues. (4) Pringle, J. held that Section 60 of the 1934 Act as amended by Section 6 of the 1953 Act were not in- consistent with the Constitution, and that the plaintiff had not instituted the proceedings within 12 months of the accident. It was also stated that the plaintiff had not exercised his option to either claim workmen's com- pensation or to take proceedings for negligence, as he was apparently not aware he could not claim both. (5) The defendants—appellants— contended on appeal that Section 6 of the 1953 Act related only to the exercise of the option provided for in Section 60 of the 1934 Act, and did not refer to cases such as this, where workmen's compensation had been accepted without the exercise of the option. In Young v. Bristol Aeroplane Co. (1946) A.C. The House of Lords ex- pressed the view that the mere acceptance of workmen's compensation as such was not in itself the exercise of an option, and was not a bar against maintaining pro- ceedings at common law. The former Supreme Court arrived at a different conclusion in Irish cases. For instance, in Walsh v. E.S.B. (1944) I.R., when the same defence as to payment of workmen's compensation had been set up, O'Byrne, J., giving the majority judgment of the Supreme Court, held that the fact that the defendants paid workmen's compensation was to make them liable under the Act, and the plaintiffs could not contravene Section 60(2), by making the defendants liable independently of the Act; this sub- section provided that the employer should not be doubly liable to pay workmen's compensation—and damages at common law. In Kavanagh v. Dublin Gas Co. (1947) I.R., the majority of the Supreme Court held that, oncc the payments of compensation had been made, there was an admission of liability by which the employers were bound, and declined to follow Young's case (1946). Walsh's case ought not to be followed otherwise it would have meant that an employer by speedy action