The Gazette 1973

UNREPORTED IRISH CASES

motor lorry. This accident occurred in Kells in May 1969 in the dark on a wet stormy night. The deceased's brother was the owner of the motor cycle and rode with him as a pillion passenger. A guard who saw the accident said that the motor cyclist was driving and had taken steps to pass out the unlighted lorry, but came in contact with the rear of it, and fell. At the close to the case for the plaintiff, Pringle J. on the sole evidence of the Guard, withdrew the case from the jury on the ground that there was no evidence upon which the jury could find that the defendant was guilty of negligence. The majority of the Supreme Court (O'Dalaigh C.J. and Walsh J., McLoughlin J. Dissenting) held, following Lavery J.'s judgment in Petti grew v. Farrell (unreported, 1st March 1950) that it was not necessary for the plaintiff to show that the defendant must be guilty of negligence, it is sufficient to show this was a probability. The credibility of the witnesses, and the weight to be given to their evidence are essentially matters for the jury. Accordingly the Supreme Court directed a new trial. [Reilly v. Garvey; Supreme Court; unreported judgement of Walsh J.; 12th May 1972.] Conditional Order of prohibition granted so that mat- ter can be argued fully. The prosecutrix was convicted in June 1970 under the Malicious Damage Act 1961, and sentenced to 2 months imprisonment by District Justice O'Huadhaigh. By error this was entered in the charge sheet as 3 months imprisonment. The prosecutrix obtained a conditional order of certioari in July 1970 and in February 1971, the Presi- dent made the conditional order absolute but subject to certain dicta, as to the duty of the District Justice to correct the entry, which were subsequently found obiter by the Supreme Court. The Supreme Court found consequently that there was no appealable matter before it. When the matter came before the District Justice, he intimated he was going to amend the charge sheet. The prosecutrix objected to this, and sought an order of prohibition in the High Court, which the President refused. It was then submitted to the Supreme Court that an order had on its face could not be amended. Accordingly a conditional order of prohibition was granted so that the matter can be fully argued in the High Court. So held by the Supreme Court (O'Dalaigh C. J., Walsh and Fitzgerald J. J.) per the Chief Justice. [State (DeBurca) v. District Justice O'Huadhaigh; Supreme Court; unreported; 25th April 1972.] (1) The plaintiff was the security officer of Messrs. Fry-Cadbury's substantial factory in Coolock employed by Securicor. While patroling the factory in the dark on the night of 31st July 1967 with an Alsation dog, the plaintiff was injured when two steel door-plates, (5x3 ft.) weighing 450 lbs. each, which were lying 13 Security guard injured by steel doors in factory. Defen- dants' appeal allowed.

Plaintiff, injured by factory machine, entitled to higher apportionment and to higher general damages. (1) The plaintiff, a baker, was injured in his right hand while feeding dough into a dough weighing machine in the bakery in November 1968. The trial was held before Pringle J. and a jury in November 1970. The jury attributed 60% of the fault to the employer, and 40% to the plaintiff. A total sum of £3,226 damages was awarded—made up as follows : £1,126 special damages to date of trial:—£1,700 special damages for the future :—and £400 general damages. (2) The plaintiff appeals on the following grounds : (a) There was no evidence upon which the jury could have found the plaintiff negligent. (b) The apportionment of fault, in attributing 40% of fault to the plaintiff, was disproportionate. (c) The damages are so low as to be unrealistic. (3) The employer was negligent in profiding an unsteady stool for support in the operation instead of a gangway, but the whole system of work carried great dangers for the operative, as the machine was never intended to push dough into it by hand. There was also sufficient evidence to find the plaintiff negligent. (4) As regards apportionment, the blameworthiness of the employer was much greater than that of the plaintiff, for the plaintiff was carrying out a dangerous operation exactly as he had been directed to do by the employer. Accordingly the 40% apportionment of fault attributed to the plaintiff was disproportionate, and a much greater degree of fault should be attirubted to the employer. There is no dispute about the £1,126 special damages. The £1,700 special damages was made up for the most part of loss of future earnings, which meant an ap- proximate diminution of £2 per week for the rest of plaintiff's life. As most baking processes in Dublin were fully mechanised, the plaintiff would have no difficulty in securing employment; accordingly the figure of £1,700 should not be disturbed. The figure of £400 was so disproportionately low that it should be set aside. The plaintiff's right hand had been permanently damaged, and no cognizance had been taken of this constant handicap to a 38 years old plaintiff. Accordingly the appeal should be allowed on the question of apportionment. The highest degree of fault attributable to the plaintiff should be 20% and thus the proportion attributable to the employer should be 80%. The appeal should also be allowed on the question of general damages, which should be increased from £400 to £1,000. So held unanimously by the Supreme Court. (Separate judgments by the Chief Justice and Walsh J., Budd J. concurring.) [Guckian v. Cully; Supreme Court; unreported; 9th March 1972.] Judge should not withdraw ca>e from jury on the grouid that there is no evidence to find the de- fendant negligent. Plaintiff claims damages for ngligence for the death of her son, as a result of a collision between a motor cycle which he was driving and the rear of defendant's