The Gazette 1991

JULY/AUGUST. 1991

GAZETTE

in creating the danger which led to the fire, he had also erred in law. Ogwo -v- Taylor [1987] 2 All ER 961 referred to; (2) although the Court would normally order a re-trial in such circumstances, the Court in the instant case was in as good a position as a court of trial to assess the issues in the case and would do so having regard also to the fact that the injuries had been sustained over ten years ago; (3) the defendant was negligent in failing to either warn the plaintiffs of the dangers associated with the cleaning work or by providing them with a safe system of work which avoided the use of the cooker as a source of hot water. O'Donoghue -v- Green [1967] IR 40 discussed; (4) the plaintiff husband could not be found guilty of any contributory negligence in the context of the injuries he sustained; but the plaintiff wife could have taken some special precautions having seen the stuttering nature of the cooker flame and the amount of grease in the kitchen; but having regard to the defendant's main culpability the degree of contributory negligence would be assessed at 15%; (5) the level of damages awarded to the plaintiffs was not outside a reasonable assessment and would not be interfered with. F REVENUE - MCOME1AX — SEVERANCE I NORMORRS - WHETHER ARMING FROM t DISABILITY OR REDUNDANCY - EMPLOYER GOING INTO UQUKWION - WHETHER B4YMENTS RECEIVED PRIOR TO TERMINATION OF EMPLOYMENT - Income Tax Act 1967, s.115. The respondents had been employed by Henry Ford & Son Ltd. and each had a degree of disability to one extent or another. In 1984, the company announced the closure of its production plant in Cork. Prior to 1984, the company developed a scheme by which it encouraged disabled employees to take disability retirement thus avoiding compulsory disability retirement. In July 1984, protective dismissal notices were issues to the entire workforce, and in August the company forwarded a list of employees (including the respondents) whose employment was being terminated for disability. The Inspector replied that tax should be deducted from all lump sum payments to employees, and the company did so. On receipt of the payment, each employee signed a statement stating that the payment was in full and final settlement of any rights, claims and demands arising from the closure. Subsequently, the company received 60% of the statutory element of the sums paid to each employee whose employment was terminated. The respondents claimed that no deduction should have been made as the payments were made on account of disability and were thus exempt under s.115 of the 1967 Act. Two of the respondents were production workers whose jobs were to go in the closedown, while the other three respondents' jobs were to continua In the Circuit Court the judge held that each of the payments was exempt under s.115. On appeal HELD by Carroll J: (1) the respondents were not estopped from making their present claim by reason of the documentation used in accepting the pay- CAHILL (MSPECIDR OFTJUCES) *

ment or by the fact that the company recouped 60% of the statutory element of the sums paid to the employees; (2) the three respondents whose jobs were to continue were entitled to the exemption from tax under s.115 of the 1967 Act since the payments were made on account of their disabilities; (3) the two production workers were not entitled to the exemption since, although the payment was made to someoqp suffering from a disability, it had not been made on account of the disability because their jobs were not continuing after protective notice had been served; and since this was a mixed question of fact and law, the Court was entitled to overturn the decision of the Circuit Court judge. Mara -v- Hummingbird Ltd [1982] ILRM 421 applied. IN RE CASEY, A BANKRUPT SUPREME COURT 21 DECEMBER, 1990 BANKRUPTCY - CREDITOR - CONTRACT WITH BANKRUPT - WHETHER ADJUDICATION HAVING EFFECT OF TERMINATING CONTRACT — WHETHER CONTRACT NOVATED BY LAW - WHETHER OFFICIAL ASSIGNEE DISCLAIMING THE CONTRACT - I WHETHER CREDITOR HAVING LIABKJTY IK BANKRUPT'S ESTATE - Bankruptcy | IIreland) (Amendment) Act 1872. a.97. The bankrupt was a beat farmer who the beat to Comhlucht Shiicre EaaomToo (tha.company). The (wins of the contmcta entered into from time' to time between the bankrupt and the company allowed the bankrupt to obtain various goods on credit, and these were set off against the beet to be supplied. In April 1981, a contract was entered into which provided that previous credits would be payable out of sums due from the company, and were a charge against his account with the company. The adjudication in bankruptcy took place in July 1981. The company was informed of the adjudication by letter from the Official Assignee of 12 November 1981. The letter indicated that sums due to the bankrupt should be forwarded to the Official Assignee. The company applied to claim in bankruptcy for the sums owed by the bankrupt. In the High Court, Hamilton P held that the letter from the Official Assignee had terminated the contract between the company and the bankrupt and that the company was not entitled to what would amount to a preference in the bankruptcy: (High Court. 21 July 1986) (1987) 5 ILT Digest 43. On appeal HELD by the Supreme Court (Finlay CJ, Griffin and O'Flaherty JJ) allowing the appeal: (1) the adjudication in bankruptcy could not have the effect of terminating the contract between the company and the bankrupt, but instead it amounted to a novation of the contract so that the Official Assignee became entitled to the bankrupt's rights and obligations under it, unless these were disclaimed; (2) the Official Assignee's letter did not amount to a <*'• -claimer of the contract under s.97 of the 1872 Act, and was precisely to the contrary effect; and therefore, by virtue of the terms of the contract the company had no liability in the bankruptcy and was en .i»led to prove in the bankruptcy as a creditor against the estate for the balance between the value of the beet supplied by the bankrupt and the goods supplied on credit

issue, having regard to the almost unbroken line of decisions on the Supreme Court by which is avoided dealing with a constitu- tional issue where a case could be deter- mined on some other ground; and there were many factors which supported abstaining from making a moot decision, among them being that in a full constitutional action the Court would be required to take into consideration a variety of factors pertaining to the precise effect of a statutory provision on the interests of the citizen impugning it; and accordingly the portion of the High Court judge's decision dealing with the constitutional issue should be deemed to be obiter dictum» and the portion of his Order declaring s.1 of the 1957 Act to be con- stitutionally invalid would be set aside; but the remainder of the High Court Order would be upheld. Cooke -v- Walsh [1984] ILRM 208; [1984] IR710 and Murphy -v- Roche [1987] IR 106 approved. McDonald -v- Bord na gCon [1964] IR 350 not followed. Per McCarthy J (dissenting): in view of the overriding importance to the executive branch of a definitive determination of the constitutional issue in question, the Court should determine that issua PHILLIPS -V- DURGAN SUPREME COURT 14 DECEMBER - WARNING OP DANGER - INVITEES - CLEANING OF EXCEEDMGtY GREASY KITCHEN - FIRE STARTED AND SPREADING RAPIDLY - RESCUE FROM FIRE - WHETHER OCCUPIER OWING DUTY OF CARE TO INVITEES - CONTRIBUTORY NEGLIGENCE PRACTICE - SUPREME COURT - ASSESSMENT OF LIABILITY - NO DISPUTE ON FACTS The plaintiffs, husband and wife, agreed to clean the kitchen in the defendant's house prior to its sale. The plaintiff wife was the defendant's sister. The plaintiffs were given no specific instructions or warning by the defendant prior to beginning the cleaning work. The gas cooker in the kitchen was full of grease from frying and three of the four gas jets were blocked as a result of grease. The plaintiff wife began boiling a kettle (to get some hot water for the cleaning) on the one jet which worked, and that jet was described as 'stutterring'. There was a large number of greasy fish and chip bags around the cooker also and some other paper on the floor. While the water was boiling the plaintiff bent down and began to scrape some grease from the side of the cooker. As she did so, she slipped and a cloth in her left hand caught fire in the flame under the kettle. The cloth dropped on the floor and fire spread rapidly around the room. She was dragged out of the kitchen by her husband, but she sustained severe burns. The plaintiff husband suffered less severe burns in the course of rescuing her. In the High Court, Egan J found for the plaintiffs on the basis of a 'rescue' principle, but without a specific finding of negligence by the defendant. He found no contributory negligence. On appeal HELD by the Supreme Court (Finlay CJ, Griffin and Hederman JJ): (1) the rescue principle is primarily a matter of foresee- ability of injury arising from the creation of a danger, and the trial judge had incorrectly applied the principle; and insofar as he held that the defendant had not been negligent TORT - OCCUPIER'S LIABILITY