The Gazette 1991

decide the case accordingly. Northern Bunk Fi- nance Corp Ltd v Charlton \1979\ IR 149 applied; (2) the essential question was whether, in all the cir- cumstances, the defendant took reasonable care to see that the premises were reasonably safe for the plaintiff, the onus being on the. defendants; (3) having regard to the largely uncontroverted evi- dence for the plaintiff that the plastic bottles were unsuitable and that the stacking system was also unsuitable, and also having regard to the fact that the defendants did not vary the system for cleaning spillages to take account of particular areas of risk such as the area involved in the instant case, the defendants had failed to satisfy the onus on them that they took reasonable precautions for the plaintiff; and accordingly a retrial on damages would be ordered. Per curiam: having regard to the plaintiff's age. the interests of justice would seem to require that damages be agreed or that an application for a very early trial be made to the President of the High Court. Per McCarthy | (concurring): since the parties were requested by the Court to argue the case on the basis of whether reasonable care had been taken, the issue of strict liability in such cases remained for future consideration. Donnelly v Timber Factors Ltd Supreme Court 25 January 1991 PRACTICE — INTERVENTIONS BY TRIAL JUDGE IN COURSE OF DAM- AGES CLAIM — WHETHER EXCESSIVE — COMMENTS BY TRIAL JUDGE ON CONDUCT OF WITNESS —WHETHER AWARD OF DAMAGES SHOULD BE SET ASIDE The plaintiff was involved in a collision with a vehicle driven by an employee of the defendant company. Liability was accepted and the trial of the action was confined to assessment of damages. The plaintiff had had a history of back injury prior to the collision, but her consultant gave evidence that this had cleared up at the time of the collision. He also described the plaintiff as a person who did not exaggerate her condition. The plaintiff stated that she was unable to continue with sporting activities after the collision. The defendant argued that the plaintiff's injuries were not substantial. The defen- dant's consultant had examined the plaintiff on two occasions. It was accepted that the first examination was not satisfactory. The plaintiff described the defendant consultant's attitude as 'hostile' and that he had attempted to minimise her injury. The con- sultant also had in his possession the plaintiff's medical records. The trial judge criticised the con- sultant for his approach to the examination and for his possession of the plaintiff's records. It emerged, however, that the defendant's consultant had been given the medical records by the plaintiff's consult- ant. The trial judge also intervened on a number of occasions during the examination of the defendant's consultant. The trial judge awarded £35,000 in general damages. The defendant appealed the award. HELD by the Supreme Court (Hederman, McCarthy and O'Flaherty ||) dismissing the appeal: (1) the trial judge's criticism of the defendant's consultant was severe, for which there was no sup|x>rt in the Iran- script; and while a judge may lie required on occa- sion to intervene to maintain an even balance lx*- tween the parties, in the instant case the trial judge had, in his criticisms of the defendant's consultant, failed to conduct the trial in a manner which ion- formed to the division of functions between a trial judge and that of counsel; (2) (Hederman and

O'Flaherty ||; McCarthy J dissenting) while the trial judge had been in error in his criticism, there had not otherwise been an excessive degree of intervention by him in the course of the trial; and given the nature of the defence in the instant case where the defen- ' dant was attempting to minimise the plaintiff's inju- ries, it was to be expected that the trial judge would react in a particular way if. as occurred, he accepted thai the plaintiff was a very genuine witness; and taking a commonsense view of the gist of the evi- dence, rather than necessarily the view most favour- able to the defendant, it would be disproportionate to the error made by the trial judge to order a retrial on the assessment of damages, /ones v National Coal Board |1957| Z QB 55 doubted. REVENUE — CASE STATED — WHETHER FINDINGS OF CIRCUIT COURT MAY BE SET ASIDE - WHETHER FINDINGS REASONABLE — BANKING BUSINESS ASSOCIATED WITH CREDIT- FINANCE DIVIDENDS FROM GOVERN* MENT STOCK — WHETHER INCOME IN COURSE OF TRADE — Income Tax Act 1967, s.428(6), Schedule D, Class 1 — Central Bank Act 1971, s. c ) The respondent compuny was engaged in banmr. activities, including the provision ot creait nnan- and leasing, but not the operation oi current - counts. As part of the conditions ot their banxin: licence under the 1971 Act. the company wa required to hold a specified number of government stocks. The Revenue did not accept that the com- pany's business constituted banking business, and applied to have the dividend from the government stock treated as income from trade under Schedule D, Class 1 of the 1967 Act. In theCircuit Court (judge Martin) it was held that the dividend did not arise from the company's trade since it did not deal in investments in the ordinary course of business and the gain did not therefore result from its trade. On case stated the High Court (Blayney I) declined to interfere with the Circuit Court decision: 119871 19 346. On further appeal by the Revenue HELD by the Supreme Court (Griffin, Hederman and McCarthy |J) allowing the appeal: (1) the Coud would only set aside primary findings of fact where there was no evidence whatever to support them, and inferences drawn from primary facts would only be set aside where no reasonable court or Appeal Commi c «ioner would have drawn such conclusions. Mara v Hummingbird Ltd 119821 ILRM 421 applied; (2) Ihe inferences drawn by Ihe Circuit Court judge were not such as could reasonably have been made, and he had erred in concluding that the gains from the government stocks did not form part of the com- pany's trading profits; (3) since the government slix.ks had been bought by the company to comply with the conditions attached to its banking licence under the 1971 Af t, it was necessarily done in the course of its normal trading activities and the real- ised gains made on redemption of such stix ks were profits in the nature of trade arwl were chargeable to lax under Schedule 13. Class I of the 1967 Act. Browne, v Bank of Ireland Finance Ltd Supreme Court 8 February 1991

held that the trustees could not he entitled to a fee simple in respect of the entire premises leased by the rluh since the tennis courts and car park did not constitute 'permanent buildings' under s. 14 of Ihe I «>78 Act. On case stated HELD by the Supreme Court iFinlay CI, Griffin anf O'Flahedy )|); (I) it had been correctly conceded by counsel for the respon- dent that the trustees could not he defeated in their claim for a fee simple merely because their claim under s.4 of the 1967 Act referred to an area greater than that to which they had any potential claim. Corr v Ivers 119491 IR 245 applied; (2) the provisions in s.l 4 of the 1978 Act, concerning applications for enlargements of a lease into a fee simple in respect of parllv-built leases, were only logical or sensible if construed as referring to portions of land held under a lease some area of which is subsidiary and ancil- lary, and some area of which is not; and construed .n that light the trustees were entitled to claim a fee simple in respect of the club house and such ground as is subsidiary and ancillary thereto, the balance of the ground being deemed to be a vacant lease within the meaning of s.14 of the 1978 Act. Mullen v Quinnsworth Ltd (No.2) Su- preme Court 25 February 1991 OCCUPIER'S LIABILITY — INVITEE — SUPERMARKET — CUSTOMER SLIP- PING ON COOKING OIL ON FLOOR - WHETHER SUPERMARKET EXERCIS- REASONABLE CARE ^ SYSTEM f)F CtEATftNCT SPILLAGES -^RESTPSA " LOQUITOR—ON USON DEFENDANT TO DISPROVE LIABILITY — SUPREME COURT— INFERENCES FROM UNDIS- PUTED FACTS FOUND AT COURT OF TRIAL The plaintiff, then aged 74, was a customer in the defendant company's supermarket. Walking towards the cake shelf, she slipped in a ;>ool of cooking oil which was spread over a reasonablv wide area of the floor and she sustained injuries as a result. The oil had come from a plastic bottle df cooking oil which was pad of a large display of cooking oil. The cooking oil was the same colour as that of the floor. The plaintiff instituted proceedings arising from the fall, claiming damages for negligence. At the first trial of the plaintiff's action, Barrington | withdrew the case from the jury. On appeal by the plaintiff the Supreme Coud, holding that the doctrine of res ipsa loquitor applied, directed a retrial of the action: 11990] 1 IR 59. On remittal to the High Court, the defendants argued that their system by which an individual member of staff was designated for mopping up and sweeping the floor amounted to a reasonable system and that accordingly they had discharged their duty of care to the plaintiff as invitee. Evidence was also given that in the region of three breakages of the plastic bottles in question occurred during any given week. An engineer for the plaintiff gave his opinion that the bottles in question were unsuitable, being prone to breakage and that the system of display was also unsuitable. Lynch | dismissed the plaintiff's claim, being satisfied that the defendants had not been negligent in all the circumstances. On appeal by the plaintiff HELD by the Supreme Court (Griffin, Hederman and Mc- Carthy ||) allowing the appeal: (1) where no question arises as to the truthful ness of the witnesses i n a case, as here, the Supreme Court is in as good a position as the trial judge to draw its own conclusions or inferences from facts proved or admitted and to

November 1991

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