The Gazette 1992

SEPTE M BER

1992

GAZETTE

//?C[1921] 1 KB 64, Revenue Commissioners v Doorley [1933] IR 750 and Inspector of Taxes v Kiernan [1982] ILRM 13; [1981] IR 117 applied. 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 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 d i m i n ished I ife expectancy, wou Id be awarded, together with the full £7,500 for mental suffering having regard to the trau- matic nature of the deceased's death.

under the 1964 Act to prevent the creation or development of dangerous structures; and this required the Corporation to give back support to the plaintiff's premises. The State (McGuinness) v Maguire (1967] IR 348 dis- tinguished; (2) while there is not a separate easement against 'wind and weather', it would be unrealistic in the context of terraced build- ings to confine the support requirement to one of buttressing, since in a short time the buttressed wall, having regard to its age, would become unstable and cease to be a support. Phipps v Pears [1967] 1 QB 76 referred to. Per curiam: having regard to the dangerous condition of the building, the ap- peal to the Court should have been expedited and an early hearing would have been granted on application. NEGLIGENCE - SOLICITOR - CONVEYANCE OF PROP- ERTY - YEARLY RENT - PURCHASERS ASSURED THAT CONVEYANCE AS GOOD AS FREEHOLD - DIFFICULTY IN OBTAINING FREEHOLD AMOUNT REQUIRED TO OBTAIN FREEHOLD - - REQUIREMENT THAT PREMISES BE REVALUED INCREASED LIABILITY TO RATES - Land- lord and Tenant (Ground Rents) (No.2) Act 1978, s.15 The plaintiffs, husband and wife, purchased a licensed premises on a yearly tenancy at a yearly rent of 9.67 and in respect of which the rateable valuation was 9. At the time of sign- ing the contract, for which the purchase price was 43,000, the plaintiffs were assured by the defendant firm's managing clerk, who was experienced in conveyancing matters, that the yearly tenancy was 'as good as freehold.' The plaintiffs subsequently made an offer of 500 for the freehold, but the vendors refused this. The plaintiffs instituted proceedings in negligence claiming the premises were, as a result, virtually unsaleable. HELD by the Su- preme Court (McCarthy, O'Flaherty and Egan JJ) finding for the plaintiffs: (1) since in the instant case, the yearly rent was less than the rateable valuation, a notice for revaluation was required by s.15(1 )(d) of the 1978 Act, and while it was difficult to anticipate the outcome it was likely that any revaluation would result in an increased liability for rates, and the plaintiffs were thus entitled to dam- ages under this head; (2) the plaintiffs must have been aware that buying out the ground rent would involve some expenditure, but they would not have been aware that a figure of £3,500 (estimated by the defendants in the present action) would be involved; that the sum of £500 would appear to have been a reasonable estimate in the circumstances and that the plaintiffs were entitled to damages of £3,000 under this head. Kehoe v C.J. Louth & Son Supreme Court 18 Novem!>er 1991 Quirke (Minor) v O'Shea and CRL Oil Ltd Supreme Court 18 Novemter 1991 PRACTICE - THIRD PARTY - INFANT CLAIM - APPLICA- TION TO JOIN INFANT'S NEXT FRIEND - WHETHER PRIMA FACIE CASE ESTABLISHED - WHETHER COURT HAS DISCRETION TO JOIN - FACTORS TO BE CONSID- ERED - Rules of the Superior Courts 1986, O.I 6, r.1 - Civil Liability Act 1961, s.27 The plaintiff, an infant, through his mother and next friend, claimed damages for per- sonal injuries arising from an accident involv- ing a lorry driven by the first plaintiff and the property of the second defendant. The lorry had delivered oil to the house occupied by the plaintiff and his family. The occurred as the lorry was driving away from the house. The defendants sought to jojn the plaintiff's mother as a third party in the proceedings. In

an affridavit in support, the first defendant stated that the mother had signed the del ivery docket for the oil and was near the plaintiff when he began driving away; that he had assumed that she was in control of the plain- tiff and that on this basis she had not taken reasonable care of the plaintiff. In the High Court, Mackenzie J declined to join the mother as a third party. On appeal HELD by the Supreme Court (Finlay CJ, Hederman and Egan JJ) dismissing the appeal: (1) the defend- ant's affidavithad made out a prima facie case for joining the mother as a third party; (2) although the mother was not a person of great means, this was not in itself sufficient to indicate that the application to join her was. an abuse of the process of the court; (3) if a third party application was refused under O.I 6, this would not be a basis for a court to refuse, under s.27 of the 1961 Act, contribu- tion to the party refused in separate proceed- ings against a concurrent wrongdoer; and thus the court's discretion under O.I 6, r.1 as to whether to join a third party was extremely wide; and the court in entitled to balance the disruption to existing proceedings (where the next friend would have to be substituted if made a third party) against the convenience of trying all the issues in one action; (4) in the instant case, the disruption involved in grant- ing the application would not be justified, having regard in particular to the limited means of the mother. D'Arcy v Roscommon County Council (Supreme Court, 11 January 1991) (1992) 10 ILT Digest 56 referred to. Between 1976 and 1978, the taxpayer com- pany engaged in offshore exploration for pe- troleum, under licence granted pursuant to the Petroleum and Other Minerals Develop- ment Act 1960. The company claimed a capital allowance in respect of the expendi- ture incurred in the scientific testing involved in the exploration, pursuant to s.244 of the 1967 Act, as amended by s.21 of the 1976 Act. This provides for an allowance in respect of capital expenditure on scientific research which is not related to the trade activities of the company involved. S.245 of the 1967 Act provides for capital expenditure in relation to certain mining exploration activities, but off- shore exploration was excluded from s.245. The Appeal Commissioners held that the com- pany was nnot entitled to the allowance under s.244, pointing in particular to the juxtaposition between s.244 and s.245. This view was upheld by Carroll J (High Court, 19 May 1988) (1989) 7 ILT Digest 56. On appeal HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ) allowing the appeal: the principal canon of interpretation was to have regard to the ordinary meaning of words used by the Oireachtas; and while it may be of relevance to look at the overall intention of a statute, this was less the case in a revenue statute; and having regard to the plain meaning of the words in s.244, the company was entitled to the allowance claimed, and the Commissioners had erred in examining the provisions of s.245 in this context. Dicta in Cape Brandy Syndicate v Texaco (Irl) Ltd v Murphy (Inspector ofTaxes) Supreme Court 3 December 1991 REVENUE - CORPORATION TAX - CAPITAL EXPENDI- TURE - RELIEF - SCIENTIFIC RESEARCH PETROLEUM EXPLORATION - INTERPRETATION OF TAXING LEGIS- LATION - Income Tax Act 1967, ss.244,245 - Corporation Tax Act 1976, s.21(1)

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