The Gazette 1986

GAZETTE

JULY/AUGUST 1986

exploit the Christmas market. The action having been discontinued as against the second named Defendant the Plaintiff claimed Damages from the first named Defendants under various heads, including, in particular, future loss of profits arising from the destruction of the brochures. The Defendant contended (1) that no one could have anticipated that the loss of the brochures would have resulted in such a large claim for loss of profits; (2) that no one could have foreseen that the Plaintiffs would not have succeeded in getting the brochures reprinted in time to exploit the Christmas market. HELD: The test for remoteness of damage is foreseeability, i.e., whether the damage is of such a kind as a reasonable man would have foreseen (see the Wagon-Mound Case [1961) 2WLR 126). So the question was whether the damage flowing from the loss of brochures was foreseeable. The mail order business in the United States is well researched and is predictable to a reasonable extent. There was a considerable body of evidence to show that the Christmas market is the important one; that brochures must reach that market in time for customers to send their orders and receive them back in time for Christmas; that a proportion of those who order at Christmas one year will order again during the coming year and that some orders come from those who see the brochures casually. All of these consequences could have been foreseen by a person with a knowledge of the mail order business when the loss of the brochures was known. The doctrine of foreseeability does not extend to expecting a Defendant to foresee the type of goods which might be in a warehouse, it must take the responsibility for damaging whatever goods are there. It is also foreseeable that because a warehouse is part of the world of commerce, there will be economic loss and possible loss of profits. If the goods cannot be replaced at cost or if the goods cannot be replaced, then the economic loss, including loss of profits, is foreseeable. The economic consequences of the loss of the brochures was immediately predictable at the time of the damage. What was unforeseen in this case was that the Plaintiff could not get a reprint of the brochures in time. But this is a separate issue and concerns the duty of the Plaintiff to mitigate. Different considerations apply. The Plaintiff's duty is to take all reasonable steps to mitigate. The Court being satisfied that this was done, then the fact that the inability of the Plaintiff to mitigate was unforeseeable, is not relevant. Damages assessed accordingly. Ten per cent deduction on net profits in respect of normal business risks allowed. William Egan & Sons Ltd. -v- John Sisk & Sons Ltd. and Lee Garage (Cork) Ltd. — High Court (per Carroll J.), 6 May 1985 [1986] ILRM 283). Franklin J. O'SUIivan EXTRADITION The Constitution: Offence connected with a political offence to further aims of proscribed organisation; objectives include destruction of Constitution by means prohibited by it • offence not "political".

Extradition of the Plaintiff was sought on a U.K. Warrant on a charge of obtaining money by false pretences with travellers' cheques. The Plaintiff alleged the offences were committed to further the aims of the INLA and that that organisa- tion directed him to commit the offences charged. The purpose of the offences was to obtain funds for the INLA which was a proscribed organisation. The Plaintiff appealed to the High Court pursuant to Section 50 of the Extradition Act 1965 on the ground that the offence charged was an offence connected with a Political Offence. HELD: (1) There is no complete definition of Political Offence for the purposes of Extradition Law. It is probably not desirable to attempt a precise definition. (2) The Extradition Act 1965 must be interpreted in accordance with the Constitution. (3) The aims of the INLA are the establishment of a thirty-two county workers Republic by force of arms. This necessarily involves destruction of the Constitution by means expressly or impliedly prohibited by it (Articles 15.6 and 39 of the Constitution). To interpret Section 50 of the Extradition Act 1965 as granting immunity to a person charged with such an offence would give to this Section a patently unconstitutional construction. The Court cannot interpret an act of the Oireachtas as granting immunity from Extradition to a person charged with an offence, the admitted purpose of which is to further or facilitate the overthrow by violence of the Constitution and the organs of the State established thereby. Appeal dismissed. John Patrick Quinn -v- Laurence Wren — Supreme Court (per Finlay C.J., Henchy J., Griffin J. concurring, Hederman J., McCarthy J.), 28 February, 1985 — unreported. Eugene T. Tormey PRACTICE AND PROCEDURE Dismissal of postman - injunction sought to prevent dismissal - criminal proceedlngs- DPP appoints Post Office Solicitor - ultra vires powers of DPP - injustice of Plaintiff. Stephen Flynn, a postman employed by the Post Office, was formerly employed by the Department of Post & Telegraphs. He was suspended on 9 May, 1984 without pay by the Post Office. On 17 July, 1984 he issued High Court proceedings against the Post Office seeking declarations that his suspension was invalid and seeking to have his job restored. On 18 July, 1984 the Director of Public Prosecutions issued a Summons against Flynn charging him with certain indictable offences contrary to the Post Office Act, 1908 as amended. On 25 July, 1984 Flynn applied for an Inter- locutory Injunction against the Post Office restraining them from implementing the suspension. This application was refused in the High Court. In September 1984, Flynn appeared before the District Court for preliminary examination on various charges. The Director of Public Prosecutions was represented by Counsel instructed by Mr. D.C. Stuart, Solicitor for the Post Office. In November 1984, a Book of Evidence

responsible for the supervision, direction and control of the employee. The employee's agreement with the Bureau included a provision which stated that her hourly rate of pay included a sum to cover holiday pay. The Defendant employed other typists as members of its permanent staff. These typists were engaged in a different manner to temporary typists such as the employee in question and they were provided with formal letters of appointment. The Holidays (Employees) Act provides that "employ" means "employ under a contract of service (whether the contract is expressed or implied or is oral or in writing) or a contract of apprenticeship, and cognate words shall be construed accordingly". The Court considered that the primary question for consideration was whether or not a contract existed between the Defendant and the employee. Only if a contract existed would it be necessary to determine whether or not it was a contract of service. For a contract to exist, the Court considered that there must be an agreement between the parties under which rights and duties enforceable inter se had been created. The Court referred to the U.K. case of Construction Industry Training Board -v- Labour Force Ltd. [1970] 3 All E.R. 220 which raised similar issues concerning the status of contractors and workmen. The decision in that case involved a determina- tion that there was no contractual relation- ship between the contractors and ihe workmen either directly or through the agency of the Respondents. The High Court considered that this decison lent support for the conclusion that no contract either express or implied, existed between the Defendant and the employee in this case. HELD: So far as the Defendant was concerned, its rights and duties to the employee were enforceable solely under its agreement with the Bureau. Similarly, the rights and duties of the employee were enforceable solely under the terms of her separate agreement with the Bureau. Thus, there was no room for any implied contractual relationship between the Defendant and the employee. The Minister for Labour -v- PMPA Insurance Company (Under Administration) - High Court (per Barron J), 16 April 1986 - unreported. Declan Madden NEGLIGENCE Damages - Destruction of brochures used in mail order business - Future loss of profits - Remoteness-test - foreseeability of loss - assessment. The Plaintiffs' warehouse was flooded on 10 September 1981 due to the first named Defendant's negligence (not in issue). Stored there were brochures which the Plaintiffs had planned to use in a sales campaign in the mail order market in the U.S. Preliminary leaflets had been posted inviting interested persons to send for the brochures. As a result of the flood these brochures were destroyed. The Plaintiffs were unsuccessful in getting the brochures re-printed in time to post them in order to

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