The Gazette 1991

JULY/AUGUST 1991

GAZETTE

his whole case of tools onto the control room roof; but the second defendant as occupier of the factory also had control over the situation and since the plaintiff was doing work for the benefit of the second defendant a duty of care between them also arose; nor could the plaintiff be exonerated completely since he should have realised the danger; and liability at common law would be assessed as being 70% on the second defendant; 20% on the first defendant end 10% on the plaintiff. Mulcare -v- South Eastern Health Board (1988) ILRM 689 and Garrard -v- Southey & Co Ltd [1952] 2 QB 174 applied; (2) the second defendant was also in breach of statutory duty towards the plaintiff under s.37(1) of the 1955 Act, as amended by s.12(1) of the 1980 Act, which required that there shall so far as is reasonably practicable be provided and maintained safe means of access to and egress from every place of work; and in the circumstances the plaintiff could not be shown to have been contributorily negligent under this heading of claim, since that concept in the context of breach of statutory duty required more than mere carelessness or inattention; and thus the plaintiff was entitled to recover in full against the second defendant for breach of statutory duty. Roche -v- Kelly & Co Ltd [1969] IR 100 and Kennedy -v- East Cork Roods Ltd [1973] IR 3M4 eppHad; (3k having regard to the serious injuries sustained by the plaintiff and the evidence as to the future damage to the | plaintiffs foot which would reoure further . aurgary to fuaa the joints, damages tor past itofo and «u f f t r i r^ would be assessed a: £ 5 0 £ 00 and for the future at £75400. anc rtiwre ware agreed apecM d w n ^ e s of I £ 3 4 6 0 4 7. I MC I NTYRE -V- LEWIS A ND ORS SUPREME COURT 17 DECEMBER 1990 TORT - FALSE IMPRISONMENT - MALICIOUS PROSECUTION ALLEGATION THAT GARDAÍ ASSAULTED AND MALICIOUSLY PROSECUTED PLAINTIFF - WHETHER NECESSARY TO PROVE ABSENCE OF REASONABLE AND PROBABLE CAUSE FOR PROSECUTION - WHETHER JUDGE REQUIRED TO TELL JURY THAT THEY MAY DISAGREE ON VERDICT IF NINE OF THEM UNABLE TO AGREE ON VERDICT - WHETHER EXEMPLARY OR PUNITIVE DAMAGES APPROPRIATE - WHETHER EXCESSIVE - WHETHER PROPORTION SHOULD EXIST BETWEEN AWARDS FOR FALSE IMPRISONMENT AND MALICIOUS PROSECUTION The plaintiff alleged that he had been assaulted by two members of the Garda Siochana, the first two defendants. The plaintiff was arrested and brought to a Garda station. The Gardai brought charges against the plaintiff claiming that he had assaulted them in the execution of their duty. The plaintiff was acquitted in the Circuit Criminal Court on these charges. He then instituted proceedings claiming damages or assault, false imprisonment and malicious pro- secution. In the High Court, the jury found that the plaintiff had been assaulted and awarded damages of £5,000. For malicious prosecution, the jury awarded £60,000. On appeal by the defendants HELD by the Supreme Court (Hederman, McCarthy and

O'Flaherty JJ): (1) once the jury had made a finding of assault, they inevitably also had to conclude that there had been a malicious prosecution; so that in the instant case there was no need for the trial judge to make a specific decision as to whether the Gardai had reasonable and probable cause for bringing the prosecution against the plaintiff; (2) the trial judge was not obliged to tell the jury that they could disagree on a verdict if less than nine of them were unable to agree on an isduei nor was any authority cited for this proposition; (3) while a claim for exemplary or punitive damages need not be specifically pleaded, it was desirable that such a claim be indicated so that the defendants would have an opportunity to meet such a claim; but in the instant case counsel for the plaintiff indicated that a claim over and above general damages was being sought; and having regard to the findings made by the jury, they were entitled to award exemplary damages, and to award it for both the assault and malicious prosecution or for one of them; and in this case they had not awarded any exemplary damages for the assault; (4) (Hederman and O'Flaherty JJ: McCarthy J dissenting) the award for the malicious prosecution bore no relation to the award for assault and the Court would substitute a figure of £20,000 for the malicious prosecution; (5) the issue of vicarious liability of the State had not beer contested at the trial and should not oc entertained by the Cour. MURPHY At- GREEN SUPREME COURT 18 DECEMRER IMC MENTAL TREATMENT - LEAVE TO COMMENCE PROCEEDINGS CHALLENG- ING COMMITTAL - SUBSTANTIAL GROUNDS FOR CONTENDING BAD FAITH OR LACK OF REASONABLE CAUSE GROUNDING COMMITTAL - ONUS ON PLAINTIFF - WHETHER HIGHER THAN CIVIL STANDARD OF PROOF - CONSTITUTION - RIGHT OF ACCESS TO THE COURTS - WHETHER REASONABLE RESTRICTION - DOCTOR CERTIFYING PLAINTIFF FOR DETENTION - WHETHER MIS-DIAGNOSIS SUFFICIENT TO GROUND LEAVE TO COMMENCE - Mental Treatment Act 1945, s.260 — Constitution, Article 40.3 The plaintiff had been brought to a Garda station after his wife had made complaints to the Gardai that thti plaintiff had beaten his daughter. The wife had previously obtained a protection order against the plaintiff in the District Court. The wife then contacted the defendant doctor who was on call for another doctor. The defendant had never attended the plaintiff. The wife ex- plained the circumstances in which the plaintiff had been taken to the Garda station and she requested the defendant to certify that the plaintiff be committed to a psychiatric hospital under the 1945 Act The defendant attended the plaintiff in the Garda station, concluded that the plaintiff was intoxicated and certified that he should be committed as an addict under the 1945 Act and that he required 6 months treatment. The plaintiff was escorted by the Gardai in an ambulance to a psychiatric hospital. He was released from the hospital approximately 12 hours later. The plaintiff sought leave under s.260 of the 1945 Act to bring proceedings against the defendant.

Recent Irish Cases

Compiled (by Raymond Syrae, < bj CJ _ >

The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal, with the kind permission of the publishers. DUNNE -V- HONEYWELL CONTROL SYSTEMS LTD AND VIRGINIA MILK PRODUCTS LTD HIGH COURT 20 JULY 1990 TORT - 'EMPLOYER'S LIABILITY - EMPLOYEE WORKING AWAY FROM EMPLOYER'S PREMISES - ACCESS TO AND EGRESS FROM PLACE OF WORK NOT REASONABLY^ SAFE WHETHER PERSON WORKING IN OCCUPIER'S PREMISES FOR'BENEFIT OF OGCUPER — DEGREES OF FAULT ATTRIBUTABLE I D PARTIES - BREACH OFSTOTUTORY DUTY ACCESS TO AND EGRESS FROM PLACE OF WORK - WHETHER DUTY OWED TO EMPLOYEES OR TO ALL PERSONS GAINING ACCESS TO PLACE OF WORK - CONTRIBUTORY NEGLIGENCE ARISING FROM BREACH OF STATUTORY DUTY - Factories Act 1955, 8.37(1) - Safety in Industry Act 1980, s.12.(1). The first defendant had installed control equipment in a factory and also had a service contract for the maintenance of the control equipment. The factory was owned and operated by the second defendant. The plaintiff was an electrial technician employed by the first defendant. In the course of his employment he sustained injuries at the second defendant's premises while carrying out maintenance work on the control equipment. To gain access to the place of work, he climbed a vertical ladder fixed to the wall of the building. As he was descending from the job holding the case containing his tools, he lost balance and sustained severe injuries to his left heel. Evidence was given that the first defendant had previously given its electricians a satchel for their tools which they would have carried over their shoulder, but that cases had been issued to them on the basis that these gave their work a better image. Evidence was also given that the ladder had been built after the factory premises was completed and that the space available at the roof and the narrowness and depth of the steps were not in accordance with the recommendations in a 1985 British Standard for ladders. HELD by Barron J: (1) even though the plaintiff was working away from the first defendant's premises, the first defendant as employer was in breach of its duty of care to the plaintiff by failing to warn him not to carry

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