The Gazette 1975

acquire 10 acres 1 rood, leaving the objector with 40 acres 2 roods. The objector appealed to the Appeal Tribunal (Butler J.) on the ground that the remainding holding was uneconomic. The Appeal Tribunal uphold- ing the appeal, held that there was nothing in the evid- ence to show that this holding was anything other than uneconomic. Accordingly the owner may retain his original holding of 51 acres. Re Estate of Oie Anderson—O'Brien v Irish Land Commission—Supreme Court (Budd, Henchy and Griffin JJ. per Henchy J.)—unreported—3 June, 1975. Award of £13,000 for injuries sustained during drilling operation in mine reasonable, and finding that defendants were guilty of a breach of stat- utory duty upheld. The plaintiff was a miner in Silvermines mine near Nenagh owned by the defendants. In January 1971, when the plaintiff was engaged in drilling operations in a tunnel in the mine, there was a fall of rock from the roof of the tunnel causing injury to the plaintiff. The plaintiff claimed that his injuries were caused by breach of statutory duty and by negligence; the defendants claimed the plaintiff was guilty of contrib- utory negligence. The case came before O'Keeffe P. and a jury in January 1974, and resulted in a net award being made to the plaintiff in the sum of £10,370 dam- ages. The jury had in fact awarded £13,700; but they had apportioned fault as to 80% to the defendants, and as to 2 0% to the plaintiff. Judgment was accord- ingly awarded for £10,370, the President having also deducted a sum of £590 paid under the Social Welfare (Occupational Injuries) Act 1966. The defendants have appealed on the ground that the damages were exces- sive, and that the apportionment was perverse; they have also appealed against the President's ruling in directing the jury to find them guilty of a breach of statutory duty under Section 49 of the Mines and Quarries Act 1965, to keep the working place safe and secure. The President ruled that the duties imposed by Section 49 was an absolute duty. After considering in great detail the differences between Section 49 of the Coalmines Act 1911 and Section 49 of the 1966 Act, and having considered in detail the effect of the decisions in Doherty v Bowaters Irish Walboard Mills Ltd. —(1968) IR and Brown v National Coal Board —( 1962) AC, Walsh J. delivering the judgment of the Court, held that, where the working place or road is not secure, and where it could have been secured by a sufficient degree of control or support, there has been a failure to provide the necessary degree of con- trol or support; this statutory duty is absolute. Con- sequently the ruling that the defendants were guilty of a breach of statutory duty should be affirmed. In considering the plaintiffs contributory negligence, which was apportioned at 20%, it must be borne in mind that the plaintiff had been in the mine for nearly two years, and would be expected to know that there was always a danger of falling rock in the course of .206

The only "owner" exempted from prosecution under Sections 2 and 3 of the Act is the person where right and enjoyment to the land has been interfered with. Accordingly Sections 2 and 3 of the 1971 Act are com- patible with the Constitution. (Dooley v Attorney-General — Full Supreme Court — per Griffin J. — unreported — 14 July, 1 9 7 5 ). In an adjourned hearing by the Land Commissioners, the personnel should if possible be identical, if the order is not to be invalid. Proceedings to acquire these lands were commenced by a Provisional list of August 1969. The lands were certified a being required for the purposes of resale to the persons mentioned in the Land Acts of 1923 and 1950. An objection was entered that the lands were not required for the purposes specified, and that there was no local congestion. The matter came before Lay Com- missioners Kelly and Pearce in June 1970 in Galway. The Commissioners announced that the lands were non- productive, but adjourned the proceedings to the Sum- mer of 1972. The adjourned hearing was listed before Commissioners Kelly and O'Sullivan in Galway in June 1972, who maintained the previous decision; they alleged that the lands were not in full production-, and that the plaintiff was no more entitled to their use than theretofore. The plaintiff appealed to the Appeal Tribunal (Butler J.) relying on the contention that the two Commissioners who decided the case must have acted on evidence given at the original hearing, at which Commissioner O'Sullivan did not sit. Butler J. accepted this submission, and allowed the appeal. The Land Commission have now appealed to the Supreme Court. It was held that, when the adjourned hearing came on before a differently constituted Tribunal, it was the duty of this Tribunal, before they could dis- allow any objection, to hold (a) that the lands were required for the relief of congestion, and (b) that the objections put forward had not been sustained. Neither of these findings could have been made without re- course to the evidence given at the first hearing, which' had not been heard by one of the Commissioners at the second hearing. Accordingly Butler J. was correct in holding that the Commissioner's order was not valid, and the appeal must be dismissed. [Estate of Michael Moran Deed.—Hession v. Irish Land Commission—Supreme Court (Walsh, Henchy and Griffin J.J.) per Henchy J.—unreported—16 June, 1975.] A holding of 40 acres held to be uneconomic The Lay Commissioners of the Land Commission certified that the whole holding of 51 acres 1 rood and 10 perches was required for relieving congestion. The plaintiff appealed to the Lay Commissioners, who were inclined to the view that the Commission should only