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.

and medical checks; (5) the actuarial figures had not been questioned and a sum of £65,000 for future loss of earnings, less 30% to take account of diminished I ife expectancy, wouId be awarded, together with the full £7,500 for mental suffering having regard to the trau- matic nature of the deceased's death. Boyhan and Ors v Tribunal of Inquiry Into the Beef Industry High Court 8 October 1991 CONSTITUTION - FAIR PROCEDURES - TRIBUNAL OF INQUIRY - RIGHT TO REPRESENTATION BEFORE TRI- BUNAL OF INQUIRY - LIMITED REPRESENTATION GRANTED - WITNESS BEFORE TRIBUNAL - NO ALLE- GATION MADE AGAINST WITNESS - Tribunal of Inquiry (Evidence) Act 1921, s.2 The plaintiffs were all members of the United Farmers' Association. A Tribunal of Inquiry into the Beef Industry had been established on foot of an order of the Minister for Agricul- ture of 31 May 1991 after resolutions had been passed by the Houses of Oireachtas that such Tribunal be establ ished. The effect of the resolutions was that the Tribunal was vested with the statutory powers conferred by the Tribunals of Inquiry (Evidence) Acts 1921 and 1979. The UFA submitted to the Tribunal that it use the evidence of some of its members in the Inquiry. The Tribunal indicated it would do so. The UFA applied for full legal represen- tation before the Tribunal but this was re- jected. The plaintiffs then sought a declara- tion that they were entitled to full legal repre- sentation. On applying for interlocutory relief HELD by Denham J dismissing the applica- tion: (1) the Attorney General was the appro- priate person to represent the public interest and the UFA had no interest over and above that of any member of the public; and indeed counsel for the Tribunal also represented the public; (2) no allegations had been made against the UFA or its members so that it was in the position of witness before the Tribunal; and since the Tribunal was required to com- ply with fair procedures, as it had indicated it would, the limited representation granted the plaintiffs by the Tribunal was sufficient to protect their interests and good name. Dicta in In re Haughey [1971] IR 217 applied; (3) the plaintiffs were not 'interested' persons within the meaning of s.2 of the 1921 Act, and the Tribunal had acted within its jurisdiction in refusing the plaintiffs full legal representa- tion. Dicta in K Security Ltd v Ireland (High Court, 15 July 1977) and Passages from Ap- pendix 4 of Report of Tribunal of Inquiry Into Whiddy Island Disaster (Prl.8911, 1980) ap- proved; (4) the plaintiffs had misunderstood the purpose of the Tribunal, which was in- quisitorial in nature, and was not adversarial in nature, nor was it a court of law, civil or criminal; and in the circumstances the plain- tiffs' rights were adequately protected by the observance of fair procedures and they had not made out a ground for the exceptional relief of a mandatory injunction against the Tribunal.

[Note: Due to a compositing error, theMarch 1992 Digest contains two identical summariesof Dunleavy v Clen Abbey Ltd. We apologise for any inconvenience this may have caused readers.]

Goodman International and Goodman v Mr Justice Hamilton and Ors High Court, 21 October 1991; Supreme Court, 1 November 1991 CONSTITUTION - SEPARATION OF POWERS - TRIBU- NAL OF INQUIRY - INQUIRY INVOLVING MATTERS SUB)ECT TO POSSIBLE CIVIL AND CRIMINAL PRO- CEEDINGS - INQUIRY CONCERNING PAST CRIMINAL PROSECUTIONS - WHETHER TRIBUNAL CONSTITUT- ING ADMINISTRATION OF JUSTICE - WHETHER CON- STITUTING CRIMINAL TRIAL - WHETHER CONSTITU- TIONALLY VALID - WHETHER FAIR PROCEDURES AP- PLIED - Constitution, Articles 34, 38, 40.3 - Tribunals of Inquiry (Evidence) (Amendment) Act 1979, s.6 The first respondent, President of the High Court, had been appointed the sole member of a Tribunal of Inquiry into the Beef Industry. The appointment was on foot of an order of the Minister for Agriculture of 31 May 1991 establishing the Tribunal of Inquiry after reso- lutions had been passed by the Houses of Oireachtas that such Tribunal be established. The effect of the resolutions was that the Tribunal was vested with the statutory powers conferred by the Tribunals of Inquiry (Evi- dence) Acts 1921 and 1979. The Tribunal was empowered to investigate certain allega- tions made in the Oireachtas and on an ITV 'World in Action' documentary concerning fraud and malpractice in the beef industry in Ireland. These allegations involved references to the activities of the first applicant, a com- pany, and the second applicant, who was the chief executive of the first applicant. The Tribunal of Inquiry prepared a document headed 'Statement of Allegations' which was read out at the first sitting of the Tribunal. The applicants brought a constitutional action claiming that the Tribunal could not validly inquire into allegations which were the sub- ject matter of civil proceedings, or of criminal proceedings which had either been heard or which might be heard in the future. The applicants also claimed relief in relation to the rules of evidence to be employed by the Tribunal. HELD by Costello J dismissing the claim: (1) in carrying out its functions as defined in the order establishing it, and hav- ing regard to the resolutions of the Oireachtas, the Tribunal was entitled to assume that the Oireactas had acted constitutionally; (2) al- though the Tribunal would express an opin- ion on the matters referred to it, such opinion was of no legal effect, and the Tribunal deter- mines no legal rights and imposes no legal obi igations, its conclusions being for the guid- ance of the legislature and the executive, so that the Tribunal could not be regarded as being concerned in the administration of justice within the meaning of Article 34.1, and its establishment did not breach the prin- ciple of separation of powers. McDonald v Bord na gCon [1965] IR 217 and Kennedy v Hearne [1988] ILRM 531; [1988] IR 481 applied; (3) the Tribunal was required to act judicially in the sense of applying the princi- ples of fair procedures; (4) the establishment of a Tribunal of Inquiry does not in any way inhibit the judicial power from dealing with any civil dispute which may be pending, so

Heeney v Dublin Corporation High Court 16 May 1991 TORT - EMPLOYER'S LIABILITY - FIRE SERVICES - FIRE- FIGHTER SUFFERING FROM HYPERTENSION AND CORONARY DIFFICULTIES - FIRE AUTHORITY PRO- VIDING BREATHING APPARATUS TO OTHER FIRE BRI- GADES - LABOUR COURT RECOMMENDING RETIRE- MENT OF FIREFIGHTERS FOR ILL HEALTH - DISPUTE AS TO IMPLEMENTATION OF RECOMMENDATION FIRE- FIGHTER GIVING INDEMNITY - EFFECT The plaintiff's husband had been a firefighter and Station Officer with Dublin Corpora- tion's Balbriggan Fire Brigade. Having been called out to a fire on 12 October 1985, he entered the building in question without breathing apparatus. He emerged after three entries complaining of breathing difficulties and was brought to hospital where he died. A post-mortem indicated a heart attack. The Corporation had trained some brigades under its control in the use of breathing equipment, but at the time of the fire in question the Balbriggan Fire Brigade had not yet been supplied with such equipment as it was pri- marily a part-time (retained) brigade and pri- ority was given to full-time brigades. In addi- tion, in March 1985, the Labour Court had recommended retirement of firefighters for ill-health at 55 and annual medical checks for them. However, because of negotiations with employee representations on the pay and pensions effect of this recommendation, no medical checks had been put in place by October 1985. The plaintiff's husband was over 55 at the time of his death, and suffered from hypertension. The plaintiff claimed dam- ages in negligence arising from her husband's death. HELD by Barron J finding for the plain- tiff: (1) the evidence indicated that the de- ceased's heart attack was due to smoke and gas inhalation in the building, and that this was in turn due to the absence of any breath- ing apparatus; (2) the Corporation was in breach of duty to the deceased in not provid- ing breathing apparatus, and it was no de- fence to argue that the deceased should have waited for a brigade with breathing apparatus to come on the scene before entering the building; (3) the Corporation recognised that firefighters over the age of 55 might- have medical problems, and it was not relevant that there was a dispute as to the full imple- mentation of the March 1985 Labour Court recommendation, as it appeared that medical examinations would not have been resisted and if they had been implemented, and the deceased's coronary artery disease would probably have been discovered; (4) an in- demnity which the deceased gave to the Corporation in October 1984 that he was not aware of any reason which would prevent him from taking part in practical and physical work in the fire service did not absolve it from its liability in relation to breathing apparatus

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