The Gazette 1992

APRIL 1992

GAZETT

using the normal multiplier of 4 rather than the multiplier of 2.5 suggested by the plaintiff having regard to the rural location of the plaintiff's home; (4) as to whether the defend- ant should bear the cost, in damages, of future private hospital care, the trial judge had erred in not allowing some amount to take account of private hospital care, having regard to the evidence that the plaintiff's parents had, prior to the accident, taken out private hospital insurance through the VHI scheme; and a sum should be awarded for this; (5) the trial judge had rightly disallowed a figure for re- pair and maintenance of equipment, such as bathing equipment, since such maintenance was part of the running costs of an ordinary household; (6) some figure should be al lowed for initial financial advice as to investing the total award, but not in respect of continuing advice; nor should there be an award for the cost of an accountant in respect of home help, since the plaintiff appeared to be capable of dealing with relevant tax returns; (7) the trial judge had wrongly refused to allow the ex- penses of an expert witness from the United States, since although the trial judge had found that his evidence had been duplicated by other witnesses, his authority had been accepted and he had been cross-examined in great detail on behalf of the defendant; and while the trial judge had a discretion in the matter, he had been wrong to disallow the expenses at the end of a lengthy trial; (8) the defendant should not be required to bear the cost of a daily transcript of the evidence, since there were instructing solicitor and one junior and two senior counsel and there was no detailed scientific evidence in the case. The plaintiffs instituted proceedings claiming that An Bord Altranais (the Board) was not entitled, under the 1985 Act, to alter the basis on which nurses were registered under the 1950 Act. The plaintiffs also claimed that the Board was not entitled to charge a retention fee for registration in 1987 since it had not established a register under the 1985 Act until 1988. HELD by Blayney J: (1) the basis on which nurses had been registered pursuant to s.42 of the 1950 Act was statutory in nature, not contractual, notwithstanding any com- munications to the plaintiffs which might have indicated the contrary; and since the right was statutory in nature and it could not be argued that it was not capable of repeal or amendment by the 1985 Act, the Cou rt would reject the plaintiffs' claim that nurses regis- tered under the 1950 Act had a right not to be removed from the register maintained under the 1950 Act. Dicta in R. v United Kingdom Central Council for Nursing, Midwifery and Health Visiting, ex p. Bailey (1989) Inde- pendent 14 March, (Queen's Bench Division, 13 March 1989) applied; (2) since s.27 of the 1985 Act required the Board to prepare, in accordance with rules made under s.26, a register 'as soon as may be' after its establish- ment under the Act, this indicated a lapse of time for preparation of a register; and since the register adopted in 1988 under new rules Fennessey and Anor v Minister for Health High Court 29 April 1991 HEALTH SERVICES - NURSES - REGISTER OF AN BORD ALTRANAIS - WHETHER REGISTRATION STATUTORY OR CONTRACTUAL IN NATURE - REQUIREMENT TO MAINTAIN REGISTER - WHETHER FORMER REGISTER CARRIED OVER TO NEW STATUTORY REGIME - Nurses Act 1950, s.42 - Nurses Act 1985, ss.7, 26, 27

the 1978 Act. The defendant was presented to a doctor in the Garda station and told he was 'the designated medical practitioner.' In the District Court the doctor was asked: 'I think you are a registered medical practitioner?', to which he replied 'I am.' He was also asked in Court: 'Were you designated by the Gardai on the night in question?', to which he re- plied: 'I was.' The charge was dismissed on the ground that there was no sufficient evi- dence that the doctor was a registered medi- cal practitioner at the time the defendant was requested to supply a blood or urine sample. On case stated HELD by O'Hanlon J affirming the d i smissa I: wh i le the testi mony of a doctor, that he was at the time of the request a registered medical practitioner, was prima facie evidence of that fact, this was a relaxa- tion of the best evidence rule, and the pros- ecution could not ask for a further relaxation of the rule by reference to the maxim omnia praesumuntur rite esse acta; and as the evi- dence in the instant case did not amount to an express confirmation of the necessary formal proof, the charge was correctly dismissed. Martin v Quinn [1980] IR 244 applied. Ward v Walsh Supreme Court 31 July 1991 DAMAGES - AWARD - ROAD TRAFFIC ACCIDENT - LOSS OF EARNINGS - CONVERSION FROM STERLING TO IRISH POUNDS - FUTURE HOSPITAL CARE - WHETHER DEFENDANT REQUIRED TO MEET EXPENSE OF PRIVATE HOSPITAL TREATMENT - VHI COVER PRIOR TO ACCIDENT - FINANCIAL ADVICE - EXTENT OF ALLOWANCE - WITNESS EXPENSES - DISCRETION OF TRIAL JUDGE - CONTRIBUTORY NEGLIGENCE - FAIL- URE TOWEAR SEAT BELT - 20% REDUCTION IN AWARD The plaintiff suffered partial paraplegia and other injuries while a passenger in a car which overturned when being driven by a servant or agent of the defendant, the car's owner. The trial judge (Lardner J) concluded that the car was being driven at between 60 and 70 mph at the time of the accident. The driver was wearing a seat belt but the plaintiff was not. The trial judge found the plaintiff to be 20% contributorily negligent for failing to wear his seat belt. The plaintiff appealed against this finding and both parties appealed various headings of the damages awarded. HELD by the Supreme Court (Finlay CJ, Hederman and Egan JJ) increasing the plain- tiff's award: (1) the finding of 20% contribu- tory negligence was open to the trial judge and would not be disturbed, having regard in particular to evidence that the driver had advised him on previous occasions to wear the seat belt; and although the plaintiff had requested the trial judge to adjourn the hear- ing to enable a specific expert witness to be called on the effects of not wearing a seat belt, the trial judge had correctly exercised his discretion to refuse such an adjournment having regard to the length of the trial and that the plaintiff had an ample opportunity other- wise to address the court on this point; (2) as to loss of earnings, there was a slight error by the judge in failing to convert potential earn- ings in England into Irish pounds, and the award under this heading would accordingly be increased to reflect this conversion; and although the trial judge had correctly de- ducted an amount, taking account of the plaintiff's injuries, in respect of future loss of earnings in the plaintiff's family electrical business, the deduction had been excessive and the sum awarded under this heading should also be increased; (3) as to future home help, the trial judge had been correct in

the District Court: since proceedings pursu- ant to s.10 of the 1851 Act had permitted the re-issue of a summons and that the second summons would be deemed to have been grounded on the first complaint, the provi- sion in s. 1 (7)(a) of the 1986 Act that its parallel procedure was subject to 'any necessary modifications' to the procedure under the 1851 Act must be deemed to include the possibility of seeking a second summons in circumstances such as the present. Ex p. Fielding (1861) 25 JP 759 and Director of Public Prosecutions v Nolan [1989] ILRM 39; [1990] 2 IR 526 applied. Director of Public Prosecutions (Moran) vAyton (Circuit Court, Judge Sheehy, 26 February 1990) overruled. Director of Public Prosecutions v Brady High Court 15 February 1991 CRIMINAL LAW - ROAD TRAFFIC - DRIVING WITH EXCESS OF ALCOHOL - WHETHER GARDA HAD FORMED OPINION THAT VEHICLE DRIVER HAD CON- SUMED ALCOHOL - WHETHER SUCH OPINION RE- QUIRED TO FOUND CONVICTION - Road Traffic Act 1961, s.49 - Road Traffic (Amendment) Act 1978, ss. 10,12 The defendant had been charged with driving a vehicle when his blood-alcohol level was in excess of the limit prescribed by s.49 of the 1961 Act, as inserted by s.10 of the 1978 Act. The defendant had been stopped at a Garda check point. The arresting Garda had noticed that the defendant's eyes were bloodshot, that his speech was slurred and his appear- ance untidy. He asked the defendant to pro- vide him with a breath test, informing him that refusal would be an offence. The breath test proved positive, the Garda formed the opin- ion that the defendant was unfit to drive the vehicle and informed him that he was arrest- ing him on suspicion of drunken driving under s.49 of the 1961 Act. In the District Court, the chargewas d ism issed on the ground that there was no formal proof that the Garda had formed the opinion that the defendant had consumed intoxicating liquor. On case stated HELD by O'Hanlon J remitting the case to the District Court: a charge under s.49 can be dismissed if the result of the breath test formed the sole basis for the Garda's opinion that the person was unfit to drive the vehicle; but in the instant case the Garda had given evidence of an observational nature as to the defendant's condition, and the failure to give formal proof of his opinion that the defendant had consumed intoxicating liquor could not invalidate all the subsequent steps taken by the Garda. Director of Public Prosecutions v Gilmore [1981] ILRM 102 distinguished. Per O'Hanlon J: if the defendant had been charged with the offence of failure to provide a breath test under s.12 of the 1978 Act, it would be a good defence if no evidence had been ad- duced to show that the Garda had formed the necessary opinion that the defendant had consumed intoxicating liquor before requir- ing the defendant to undergo the breath test. Director of Public Prosecutions v O'Donoghue High Court 15 February 1991 CRIMINAL LAW - ROAD TRAFFIC - FAILURE TO PRO- VIDE BLOOD SAMPLE TO REGISTEREDMEDICAL PRAC- TITIONER - WHETHER SUFFICIENT EVIDENCE AD- DUCED THAT PRACTITIONER INTRODUCED TO DE- FENDANT WAS REGISTERED PRACTITIONER - OMNIA PRAESUMUNTUR RITE ESSE ACTA - BEST EVIDENCE RULE - Road Traffic (Amendment) Act 1978, s.13 The defendant was charged with failing to provide a blood or urine sample to a regis- tered medical practitioner, contrary to s.13 of