The Gazette 1989

MAY 1 9 89 i

GAZETTE

hearing evidence as to the other grounds of objection, the Circuit Judge purported to state a Case, pursuant to Section 16 of the Courts Act 1947, for the opinion of the Supreme Court on the point of statutory interpretation under the Intoxicating Liquor Acts. A preliminary point arose as to whether the Supreme Court was prevented from answering a Case Stated under Section 16 before all the evidence which might under certain circumstances fall to be considered by the Circuit Court had been heard. In support of the contention that the Court was so prevented reliance was placed on the earlier Supreme Court decisions in Corley - v- Gill [19751 IR 313 and Dolan -v- Corn Exchange [1975] IR 315. HELD by the Supreme Court (Finlay C. J. and Walsh J., McCarthy J. concurring; Henchy and Griffin J. J. dissenting). 1. (i) Section 16 did not unambiguously prohibit the stating of a Case until all the evidence had been heard and concluded; (ii) the adjournment of pronouncement of judgment or order by the Circuit Court pending determination by the Supreme Court of the Case Stated was mandatory notwithstanding the use of the word "may" in Section 16 but that conclusion did not exclude the power of the Circuit Court to adjourn any other part of the proceedings pending before it as well as the pronouncement of the judgment or order; (iii) every court had an inherent jurisdiction in order to secure the due administration of justice to adjourn any part of the hearing of a case before it and Section 16 did not clearly and un- ambiguously remove that jurisdiction; (iv) bearing in mind the purpose of Section 16 and the procedure which the Oireachtas intended to create, a court must have ample powers of ensuring that it does not pronounce or deliver a judgment which is not justly in accordance with the facts and the law as found and that a Case could be stated at any stage of the proceedings; (v) it was generally desirable that all the material facts should be found and the evidence concerning them heard before a Case was stated and, without deciding it finally, it was difficult to conceive of a Case stated without any evidence at all; (vi) having regard to the Supreme Court authorities on Stare Decisis, the requirements to do justice in the instant case and the fundamental importance of relationships between the Circuit Court and the Supreme Court, the power of the Supreme Court to entertain a Case stated was more flexible and more expansive than decided in Corley -v- Gill and Dolan -v- Corn Exchange; and (vii) accordingly, it was proper for the Supreme Court to hear and determine the question raised in the Case stated.

would be rejected and the Plaintiff's job included sorting out the broken bottles by hand and stacking crates containing sound ^bottles. Whilst carrying a crate the Plaintiff stood on the neck of a bottle and fell causing the bottle to fall out of the crate thereby breaking and causing injury to his forearm. He sued his employers on the express basis that he was not supplied with proper protective clothing such as appropriate gloves with gauntlets. The evidence for the Plaintiff included that of an Engineer who testified as to the need to wear appropriate gloves in the glass manufacturing industry but had been unable, due to refusal of access, to learn what was established practice in commercial dairies. At conclusion of Plaintiff's case, Counsel for the Defendant relying on a statement of law in the case of Bradley -v- C.I.E. [1976] I.R.217 successfully applied to withdraw the case from the Jury on the grounds that the Plaintiff had failed to establish that employers in the same business supplied gloves or if not that his employers were obviously imprudent or unreasonable in not providing the particular gloves and gauntlets. The Plaintiff's Appeal was upheld by majority decision (Hederman J. and McCarthy J. - Finlay C.J. Diss). HELD: There was adequate evidence upon which the Jury might conclude that it was unreasonable on the part of the employers not to provide appropriate protective gloves and gauntlets to employees involved in carrying crates of empty bottles, some of them broken and consequently jagged. The essential question in all actions of negligence is whether or not the party charged has failed to take reasonable care whether by act or omission and (Per McCarthy J): "Bradley's case is not to be construed as laying down for all time two unchanging compartments into one or both of which every Plaintiff claim must be brought if it is to succeed" Finlay C.J. in his minority judgment was of opinion that the Plaintiff must prove in accordance with the principles laid down in Bradley -v- C.I.E. and in this instance the injury might just as easily have been inflicted on the Plaintiff's side, his shoulder or his chest as it was on his arm. It would clearly not be reasonable or practicable for an employer to seek to protect his workmen as to the whole of his body or the upper part of his body from cutting by broken glass whilst carrying out the type of work which the Plaintiff was doing on this occassion. Richard Kennedy -v- Hughes Dairy Ltd. - Supreme Court per McCarthy J. & Hederman J. - (Finlay C. J diss.) 22nd July 1988 - [1989] ILRM 117. FRANKLIN O'SULLiyAN PROCEDURE - CASE STATED The Circuit Court has jurisdiction to state a Cass to the Supreme Court at any time in proceedings pursuant to Section 16 of the Courts Act 1947 although in general all material facts ought to be found first. On the hearing of an application to the Circuit Court for a licence under the Intoxicating Liquor Acts objectors sought to rely on a number of points. One such point involved a contention that the Court was precluded by the Intoxicating Liquor Acts from granting the licence. Having heard evidence on that point alone, and before

"Certificate to be issued by the Medical Bureau of Road Safety under Section 22 of the Road Traffic (Amendment) Act, 1978." It was further contended in the District Court that this heading did not form part of the Certificate. The Respondent was convicted in the District Court and appealed to the High Court by way of case stated. In the High Court it was submitted on behalf of the Respondent that because the "heading" did not form part of the Certificate and because it referred to a Certificate "to be issued" by the Bureau under Section 22, this so called heading was inadequate and the Certificate should have contained a specific statement to the effect that "This Certificate is issued under Section 22 of the Act" or words to that effect. In both Courts the Certificate was contrasted with the one provided for in the Regulations made under the 1968 Road Traffic Act which Certificate had a sentence stating that the Certificate was issued under Paragraph (a) Sub-section 3 of Section 43 of the Road Traffic Act, 1968. It was also pointed out that the insertion of such statement was restored by the draftsman under the 1987 Regulations, the draftsman apparently considering that the wording of Section 23(2) required a statement that the Certificate is issued under the Act. The learned High Court Judge found in favour of the Respondent and his decision was appealed to the Supreme Court. After reviewing the facts and the evidence it was held in the Supreme Court that no reasonable individual receiving the Certificate and reading it could conclude other than that it was issued and was on its face shown to be issued by the Medical Bureau of Road Safety under Section 22 of the Act. The form of words used in the Certificate was unimportant so long as it was clear to the recipient that the Certificate was issued under Section 22 of the Act. The Supreme Court accordingly upheld the Appeal answered question submitted in the case stated in the following manner: - "The document issued by the Medical Bureau of Road Safety dated the 21st of October, 1985 satisfied the requirements of Section 22 and Section 23(2) of the Road Traffic (Amendment) Act, 1978." John Connolly -v- Liam Sweeney - Supreme Court - per Griffin J. and McCarthy J. (Finlay C.J. concurring) - 17 December, 1987. [19881 ILRM 483. GEORGE BRUEN EMPLOYERS' LIABILITY Plaintiff employed in Defendant's dairy injured in fall on broken milk bottle - no protective gloves supplied - no evidence of practice in other dairies or of any common practice - case withdrawn f r om Jury - Plaintiff successfully appealed - injury was foreeeable and there was a question for Jury to determine. The Plaintiff sustained injuries on his forearm near his right wrist whilst working at the Defendant's dairy premises at Rathfarnham, Dublin. His duties involved both getting out crates of bottled milk for delivery and tidying up at the end of a loading session; crates with broken bottles

2. (Per McCarthy J)

(i) the decision when to state a Case was best left to the discretion of the Circuit Court; and

ii