The Gazette 1985

GAZETTE

JULY/AUGUST 1985

for Health decided to build a new General Hospital in Cavan to replace three existing hospitals in Cavan, Lisdarn and Mo n a g h a n. Ha v i ng e n c o u n t e r ed sustained local opposition the Minister modified his plans to allow the hospital in Monaghan to remain open but he ordered that the Gynaecological Unit of that hospital close. The Minister purported to exercise his powers for this closure under Section 38 of The Health Act, 1970 which provides:— (1) A Health Board may, with consent of the Minister, provide and maintain any hospital, sanitorium, home, laboratory, clinic, health centre or similar premises required for the provision of services under the Health Acts, 1947 to 1970. (2) The Minister may give to a Health Board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under Sub-section (l)and in relation to the arrangements for providing services therein, and the Health Board shall comply with any such direction. (3) A Health Board may and, if directed by the Minister, shall, discontinue the provision and maintenance of any p r emi s es p r o v i d ed and maintained by it under Sub-section (1). (4) The Health Board shall not exercise its powers under Sub-section (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanitorium or home save with the consent of the Minister. (5) The Minister shall not give a direction under Sub-section (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanitorium or home save after having caused a local enquiry to be held into the desirability of the discontinuance. The Plaintiffs brought an action in the High Court seeking a Declaration that the decision of the Minister was ultra vires and accordingly illegal and void. The Plaintiffs challenge was made on two grounds:— (i) Since the Monaghan Hospital was erected in 1937, it was a hospital to which Section 38 of the Act, 1970 did not apply; (ii) If Section 38 did apply, Sub-section (2) of that Section, on which counsel for the Minister relied, did not empower the Minister to direct the Board to discontinue the provision of G y n a e c o l o g i c al s e r v i c e s. (Counsel for the Minister conceded that if that Sub-section did not give the Minister that power, there was no other statutory provision on which he could rely). The Minister relied on Section 38(2) of

deceased. Fault was apportioned 80 per cent on the Defendant and 20 per cent on the deceased. The Supreme Court on appeal HELD: The finding of negligence against the Defendant could not stand. The finding by the High Court Judge that the deceased had an implied invitation to go onto the roof was not open on the evidence. Any implied invitation was to go to whatever part of the factory it was necessary to go for the purpose of doing the work he was engaged by Mr. Emery to do. Even if it could be deduced from the evidence that he was an invitee, the particular perspex skylight was plain to see and it could not be said to be a hidden or unusual danger. The alternative claim based on breach of s.37 of the Factories Act 1955 could not be successfully made out. The relevant Statutory Duty is; "(1) There shall, so far as is r e a s o n a b ly p r a c t i c a b l e, be provided and maintained safe means of access to every place at which any person has at any time to work. (2) Where any person is to work at a Before the Plaintiff could successfully invoke subsection (1) it would have to be shown that the roof was a place where the deceased had to work and before sub- section (2) could be relied on, that the roof was a place where he was to work. The roof was not a place where the deceased had to work or was to work and the plea of breach of statutory duty failed. Appeal allowed and claim dismissed. Margaret Veronica Daly -v- Avonmore Creameries Limited - Supreme Court (per Henchy J., Hederman J. concurring - McCarthy J.) Diss., 12 July, 1984 - unreported. Franklin J. O'Sullivan ADMINISTRATIVE LAW Ultra Vires — Section 38 Health Act, 1970 — Interpretation of Statute — Declaratory Action — Appeal to the Supreme Court — Ministerial Order quashed. The North Eastern Health Board was established with other similar Boards under the provisions of The Health Act, 1970 to cover the Counties of Monaghan, Cavan, Louth and Meath. The Minister place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety."

course, once an irregularity or defect is established in the impunged proceedings would be to debase this great remedy". 2. Notwithstanding the District Court Rules providing for the making up of an order and for the issuing of certified copies of it, where the entry in a Justice's Minute Book — a charge sheet is equivalent for this purpose — is complete and not merely informal or an aid to memory, that in itself can be, if properly proved, a good record of the order. The State (Frank Redmond) -v- District Justice Sean S. Delap - High Court (per Finlay P.), 30 July, 1984 - unreported. Joseph B. Mannix TORT Negligence and breach of Statutory Duty — Section 37 Factories Act 1955 — Subcontractor killed in fall through skylight — acting outside range of duties required — Defendant not responsible either as employer or occupier. The Defendant engaged Timothy Emery as an independent contractor to do repairs on its factory roof. Mr. Emery engaged the deceased and Redmond O'Brien as sub-contractors. Their work was to be done from a forklift, viz., to repair the gutters and to apply aluminium paint to so much of the roof as could be reached from the forklift, using an extended brush. They were not required to go onto the roof. Any work that had to be done by going onto the roof was done by Mr. Emery himself who for this purpose would wear rubber shoes and had a rope safely secured and tied around his waist as a lifeline. While Mr. Emery was away, O'Brien and the deceased went onto the roof to repair a damaged skylight. The deceased put his foot on the perspex skylight and was fatally injured when he fell through to the factory floor below. The Plaintiff, widow of the deceased, claimed Damages based on alleged negligence and breach of Statutory Duty of the Defendant. Mr. Emery was not sued possibly because he was an undischarged bankrupt and a judgment against him would probably be of no value. The only breach of Statutory Duty that could apply on the evidence in the High Court would be a breach of s.37 of the Factories Act 1955. In the High Court the case was tried by a Judge without a Jury. The Judge made no finding on the issue of breach of Statutory Duty but he found that the deceased had an implied invitation to go onto the roof to fix the skylight and he held that the fatal accident was the result of negligence on the part of the Defendant and contribu- tory negligence on the part of the

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