The Gazette 1992

SEPTEMBER

1992

GAZETTE

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University. The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal with the kind permission of the publishers.

Dunleavy v Glen Abbey Ltd High Court 9 May 1991 TORT - BREACH OF STATUTORY DUTY - EMPLOYER'S LIABILITY - FACTORY REGULATIONS - MANUAL HAN- DLING - WHETHER A 'PROCESS' WITHIN REGULA- TIONS - WHETHER BREACH OF DUTY ESTABLISHED - WHETHER CAUSATIVE FACTOR IN ACCIDENT - Facto- ries Act 1955 (Manual Labour) (Maximum Weights and Transport) Regulations 1972, Regs.3, 6, 7 The plaintiff was an employee of the defend- ant company, and about half of his duties involved carrying and lifting loads into and in the company's factory premises. On the oc- casion giving rise to the proceedings, nine cartons of metal fasteners arried at the com- pany's premises in a van, the cartons being stored on a pallet in the van. The plaintiff went for the fork-lift truck in the premises to lift the cartons from the van, but its battery was dead. The plaintiff then proceeded to lift the cartons manually from the van with the help of the van driver. Each carton was small, being 57 cm x 24 cm x 23 cm, but weighed between 35 and 42 kilos. They lifted four of the cartons in this way, but with the fifth carton the van driver let go, the plaintiff was jerked by the weight and he suffered a back injury. The plaintiff claimed damages in negligence and breach of statutory duty. It was accepted that the plaintiff had regularly complained that the fork-lift truck was inoperative from time to time and that he not received manual han- dling training. HELD by Barron J finding for the plaintiff: (1) since the plaintiff was em- ployed by the defendant company in activity which normally included the manual trans- port of loads, and was therefore of more than a minimal duration, and since that employ- ment was carried on in a factory, he was engaged in a 'process' within the meaning of Reg.3 of the 1972 Regulations. Nurse v Morganite Crucible Ltd [1989] AC 692 ap- proved; (2) the defendant had not provided the plaintiff with manual handling training, and was thus in breach of Reg.6 of the 1972 Regulations; and, since it was aware that the fork-lift truck was inoperative from time to time, it was also in breach of Reg.7, which required that, so far as is reasonably practica- ble, suitable mechanical devices be used to avoid the necessity for manual transport of loads; (3) as to whether the breaches of statu- tory duty were causative factors in the acci- dent, it was agreed that the plaintiff was using the proper posture for lifting and loading weights, so that the failure to provide training on this point was not a causative factor in the accident; (4) while there might be a tendency to assume that the proper way to perform the task was obvious or involved common sense by the employee, this ignored the need for the Regulations which applied in the instant case; and if the plaintiff had received the training required by the 1972 Regulations he would have learned that, in addition to good pos- ture, in some circumstances it is better to take the entire load than to share it and that a load should sometimes be broken up; and if he had

had such training he would have approached his task in a different manner; and on this basis there was a causative link between the breach of statutory duty and the accident; (5) there was no question of contributory negli- gence, having regard to the plaintiff's good posture and lack of training; (6) while the injury received did not at first appear to be particularly serious, a congenital weakness in the plaintiff's back made him more suscepti- ble to prolonged injury, and the medical evidence indicated that he should not engage in repetitive bending or heavy lifting; and in the circumstances an award of 15,000 gen- eral damages was appropriate. Director of Public Prosecutions v Corbett High Court 24 January 1991 CRIMINAL LAW - PROCEDURE - DELAY - SUMMARY OFFENCE - WHETHER DELAY EXCESSIVE SUMMONS - AMENDMENT IN DISTRICT COURT-WHETHER PREJU- DICIAL TO DEFENDANT - FACTORS TO BE CONSID- ERED - District Court Rules 1948, rr.21, 88 The defendant was charged, inter al ia, with an offence under s.49 of the Road Traffic Act 1961, as amended, the summons originally alleging the offence took place on 19 Septem- ber 1989. The summons was applied for on 9 February 1990, and the hearing was set for 3 May 1990 in the District Court. At the hearing, the defence sought to have the case struck out for prejudice to the defendant arising from the delay involved. No evidence being led on this point, the District Court dismissed the appli- cation. The prosecution then applied, uryder r.88 of the 1948 Rules, to change the da/e of the alleged offence on the summons from 19 September 1989 to 18 September 1989, an<( to change the number ofthe defendant's dwel I- ing on the summons from '27' to '25'. The District Court refused to amend the sum- monses and dismissed the charges. On case stated HELD by Barr J remitting the case to the District Court: (1) although there was delay in applying for the summonses, this was within the appropriate statutory limit and therefore prima facie the summons was good; and since there was no unreasonable delay between application and the trial, the District Court had correctly dismissed the defendant's appli- cation in the absence of evidence as to preju- dice; (2) the District Court had a discretion under rr.21 and 88 of the 1948 Rules as to whether to grant the application to amend the summons; but the District Court should not have taken account of the delay factor since there was no indication that this would preju- dice the defendant, and he should have con- fined himself to considering prejudice from the point of view of the defendant's alibi evidence which he had intended to introduce and also whether the prosecution had taken the relevant blood or urine sample on the date in the summons or on the date sought to be inserted; and in all the circumstances, the matter should be remitted for the District Court to enter continuances. The State (Duggan) v Evans (1978) 112ILTR 61 applied.

Director of Public Prosecutions v Carlton High Court 24 June 1991 CRIMINAL LAW - PROCEDURE - DELAY - SUMMARY OFFENCE - WHETHER DELAY EXCESSIVE OR UNCON- SCIONABLE - WHETHER PREJUDICIAL TO ACCUSED - WHETHER DECISION OF DISTRICT COURT DISMISS- ING CHARGE UNREASONABLE-Courts (No. 3) Act 1986, s.1(7) The defendant had been charged with an offence under s.49 of the Road Traffic Act 1961, as amended, alleged to have taken place on 11 November 1989. The summons was due to be heard on 12 March 1990 but due to an oversight the prosecuting Garda had not been informed about this and the charges were struck out. The Garda applied for a fresh summons and this was issued on 21 June 1990, returnable for 26 July 1990. On the latter date, the defendant sought to have the charges struck out on the basis that the 8 month delay was unfair, and this application was granted. On case stated by the Director HELD by Morris J remitting the case to the District Court: (1) the District Court could strike out charges on the alternative grounds that: (a) there had been excessive or uncon- scionable delay in bringing the case, where the onus is on the State to justify delay; or (b) the defendant would be prejudiced by a delay in bringing the case, where the onus is on the defendant to prove prejudice. The State (Cuddy) v Mangan [1988] ILRM 720 and dicta in Director of Public Prosecutions v Corbett( High Court, 24 January 1991) (supra) applied; (2) in the absence of evidence of prejudice, the District Court must have based its decision on the excessive nature of the delay; but, having regard to the six month time limit permitted in s.1 (7) of the 1986 Act for the making of a complaint, it was unrea- sonable for the District Court to decide that an eight month delay was excessive. O'Keeffe v An Bord Pleanala (Supreme Court, 15 Febru- ary 1991) (1991) 9 ILT Digest 172 applied. Per curiam: the District Court may have been influenced by the previous striking out of the case, but this was not a proper matter to take into account. Director of Public Prosecutions v McKillen High Court 19 December 1991 CRIMINAL LAW - PROCEDURE - SUMMONS - DANGER- OUS DRIVING - SUMMONS APPLIED FOR WITHIN SIX MONTH TIME LIMIT - SUMMONS NOT SERVED - FRESH SUMMONS APPLIED FORWHETHER PROPERLY WITHIN TIME LIMIT - Courts (No.3) Act 1986, s.1 - Petty Sessions (Ireland) Act 1851, s.10 On 3 August 1989, a summons alleging dan- gerous driving by the defendant on 13 March 1989 was applied for under s.1 of the 1986 Act. Due to difficulties in serving the defend- ant, a second summons was issued on 27 September 1989, returnable for 16 Novem- ber 1989. In the District Court, the charge of dangerous driving was dismissed on the ground that the second summons was ap- plied for outside the six month time limit specified in s.1 of the 1986 Act. On case stated HELD by Lavan J remitting the case to

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