The Gazette 1992

SEPTEMBER

1992

GAZETTE

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 neg- ligence and breach of statutory duty. It was accepted that the plaintiff had regularly com- plained that the fork-lift truck was inopera- tive from time to time and that he not re- ceived manual handling training. HELD by Barron J finding for the plaintiff: (1) since the plaintiff was employed by the defendant company in activity which normally included the manual transport of loads, and was there- fore of more than a minimal duration, and since that employment was carried on in a factory, he was engaged in a 'process' within the meaning of Reg.3 of the 1972 Regula- tions. Nurse vMorganite Crucible Ltd [ 1989] AC 692 approved; (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 practicable, suitable mechanical devices be used to avoid the necessity for manual trans- port of loads; (3) as to whether the breaches of statutory duty were causative factors in the accident, it was agreed that the plaintiff was using the proper posture for lifting and load- ing 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 re- ceived the training required by the 1972 Regulations he would have learned that, in addition to good posture, in some circum- stances 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 statu- tory duty and the accident; (5) there was no question of contributory negligence, 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 susceptible to prolonged injury, and the medical evidence indicated that he should not engage in repetitive bend- ing or heavy lifting; and in the circumstances an award of 15,000 general damages was appropriate.

- DECLARATION SOUGHT THAT PLANNING PERMIS- SION ULTRA VIRES - WHETHER PLAINTIFFS HAVING LOCUS STANDI - Local Government (Planning and De- velopment) Act 1963, s.82(3)(a) - Local Government (Plan- ning and Development) Act 1976, s.42 The plaintiffs instituted proceedings seeking a declaration that the planning permission granted by the defendant planning board to the second defendant was ultra vires the 1963 Act, as amended. The plaintiffs were residents in the area in which the second defendant proposed to site its pharmaceuti- cal plant in respect of which permission was granted. S.82(3)(a) of the 1963 Act, as in- serted by s.42 of the 1976 Act, provides that proceedings challenging a planning permis- sion must be brought within two months of the grant of permission. The permission in the instant case had been given on 24 July 1990 and the plaintiffs'- action was begun on 21 September 1990. The defendants sought to have the action dismissed on the ground that it was frivolous and vexatious or an abuse of the process of the courts. Blayney J dismissed this application. A preliminary is- suewas then set down for action as towhether the plaintiffs had locus standi to bring the proceedings. The defendants argued, inter alia, that the plaintiffs had no locus standi since they had not participated at the hearing before the defendant planning board and that since the 1963 Act constituted a compre- hensive code the plaintiffs should not be permitted to raise matters in the proceedings which they could have raised, but did not, at the planning hearing. In the High Court, Lavan J held that the plaintiffs had no locus standi. On appeal by the plaintiffs HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allowing the appeal: since the plaintiffs had instituted the proceedings within the statutory time period specified in the 1963 Act, and since they were also aggrieved persons, in the sense that the permission impacted on them personally, they had locus standi to continue the proceedings as part of the constitutional right of access to the courts to litigate justiciable issues. Dicta in The State (Lynch) v Cooney [1983] ILRM 89; |1982] IR 337 applied. The State (Abenglen Properties Ltd) v Dublin Corporation [1982] ILRM 590; [1984] IR 381 distinguished. Semble: the issues raised by the defendants were more appropriate to the substantive proceedings. 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

should not imply such a term, and the plain- tiff's action would therefore be dismissed. Ambiorix Ltd and Ors v Minister for the Environment and Ors Supreme Court 23 July 1991 PRACTICE - DISCOVERY - PRIVILEGE - CLAIM BY GOV- ERNMENT DEPARTMENT FOR PUBLIC INTEREST IM- MUNITY - WHETHER CONSISTENT WITH JUDICIAL POWER - PRECEDENT - WHETHER DECISION OF SU- PREME COURT SHOULD BE RECONSIDERED - Constitu- tion, Article 34 The plaintiff companies, all engaged in prop- erty development in Dublin, instituted pro- ceedings seeking, inter alia, a declaration that the Minister had acted ultra vires the Urban Renewal Act 1986 in determining that a site on George's Quay, Dublin, owned by the fifth defendant Irish Life Assurance pic, was a designated area under the 1986 Act. In connection with the case, the plaintiffs sought discovery of documents from the defendants, including memoranda between civil serv- ants and government Ministers as well as correspondence between Irish Life and the relevant government departments. The Min- ister resisted the motion for discovery on the grounds that discovery of the departmental memoranda would impair the efficient op- eration of the civil service and that the corre- spondence from Irish Life and others, which included financial information, had been treated as confidential. Lardner J ordered discovery. On appeal by the defendants HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismiss- ing the appeal: (1) the suggested claim to privilege in respect of the documents in question ignored the constitutional basis on which discovery is ordered in cases such as the present; and it was for the judicial power, not the executive, to determine whether cer- tain documents be produced in evidence; (2) where there was a conflict alleged between the production of documents and the public interest in confidentiality in the exercise of the executive power, the resolution of the conflict was also a matter for the judicial branch, and thus there cannot be a general class of documents for which any public interest immunity from production can be claimed; and any claim to 'class immunity' would involve an interference with the right of access of the citizen to the courts. Murphy v Dublin Corporation [1972] IR 215 ap- proved and followed. Dicta in O'Keeffe vAn Bord Pleanala (Supreme Court, 15 February 1991) (1991) 9 ILT Digest 172 approved. Conway v Rimmer [1968] AC 910 consid- ered; (3) in the absence of a claim that production of the documents would affect the safety and security of the State, the trial judge had acted correctly in examining the documents in question; (4) any issue of con- fidentiality of financial information supplied to the government departments could be dealt with either by way of deletion of the information under the direction of the court or through restricting access to the legal advisers for the plaintiffs; and in any event the use of the discovered material for any pur- pose extraneous to the proceed i ngs wou Id be a contempt of court. Chambers v An Bord Pleanala and Sandoz (Ringaskiddy) Ltd Supreme Court 23 July 1991 PRACTICE - LOCUS STANDI - PLENARY PROCEEDINGS

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