The Gazette 1992

DECEMBER 1992

GAZETTE

divorce in the United States was not suffi– cient to make the marriage a nullity. On appeal by the petitioner HELD by the Su– preme Court (Finlay CJ, Hederman and McCarthy JJ; O'Flaherty and Egan JJ dissent– ing): the trial judge had not erred in con– cluding, on the evidence presented, that it had not been shown that the petitioner lacked the capacity to enter into a life-long commitment when she went through the marriage ceremony; and a marriage was not inva Iid merely by reason of the fact that the parties to the marriage had knowingly entered into the marriage with mental res– ervations as to whether the marriage would in fact be one for life; and therefore the Supreme Court would not interfere with the conclusions of law at which the trial judge had arrived. Per O'Flaherty and Egan JJ (dissenting): in view of the mental reserva- . tions of the parties to the marriage, the marriage could not be described as a mar– riage in the normal sense of the term, and a decree of nullity should issue. MALICIOUS INJURIES - APPLICANT HAVING CRIMI– NAL RECORD - WHETHER DISENTITLED TO CLAIM UNDER MALICIOUS INJURIES LEGISLATION - PUB– LIC POLICY - WHETHER ESTABLISHED IN EVIDENCE THAT PROPERTY DESTROYED RESULTED FROM CRIMINAL ACTIVITY - Malicious Injuries Act 1981 The applicant claimed under the 1981 Act arising from a fire which occurred in 1984 in the house in which he was tenant and which had resulted in the destruction of furniture in the house. It was agreed thatthe fire had been started maliciously. In the course of the Circuit Court hearing, the appl icant was cross-examined as to whether he had a criminal record, and the applicant accepted that he had been convicted of a number of offences, including larceny. The applicant, who had been unemployed since 1977, produced receipts in respect of all items of furniture in respect of which claims were made and stated that the items had been paid for out of savings, loans from family members and also from part-time work. The Circuit Court judge (Judge Carroll) concluded that the furniture had been pur– chased from the proceeds of criminal activ– ity and that, accordingly, he was disentitled to claim for malicious damage to the furni– ture under the 1981 Act. The case was referred on case stated to the High Court, which in turn stated a case for the Supreme Court. HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy and Egan JJ; 0' Flaherty Jdissenting): (1) while a witness was entitled, in general, to refuse to answer questions which might incriminate him, the applicant had agreed to answer the ques– tions in the instant case and, in any event, questions as to convictions which had al– ready been recorded were admissible; (2) the applicant should not be precluded from claiming under the 1981 Act because (per Finlay CJ and McCarthy J) the conclusion of the Circuit Court judge that the furniture in the instant case had been purchased from the proceeds of crime was not warranted by the evidence proferred; or (per Hederman and Egan JJ) there was no general public policy principle by which a person who Hutch vDublinCorporation SupremeCourt 1 April 1992

suffered damage within the 1981 Actshould not be compensated in full, where that person's criminal activity did not lead di– rectly to the loss complained of. R. v Na– tiona/Insurance Commissioner, ex p Connor [19811 1 All ER 769 distinguished. Semble per Finlay CJ, McCarthy and O'Flaherty JJ: where it was established that proceeds of crime were destroyed maliciously, it would offend against common sense if the wrong– doer could also claim against the commu– nity for malicious damage in respect of the destruction of the proceeds of crime. [Note: the Malicious Injuries (Amendment) Act 1986, which came into effect after the incident in the instant case, severely limited the circumstances in which dama ges can be claimed under the 1981 Act.1 Dunleavy v McDevitt and North Western Health Board Supreme Court 19 February 1992 NEGLIGENCE - MEDICAL - SURGICAL OPERATION– WHETHER PARTICULAR FORM OF SURGERY PER– FORMED WITH DUE CARE - WHETHER ALTERNA– TlVE SURGERY SHOULD HAVE BEEN PERFORMED– WHETHER ALTERNATIVE SURGERY WOULD HAVE AVOIDED INJURY The plaintiff was referred to the first defend– ant, a consultant surgeon, in respect of a lump behind the angle of his left lower jaw, near his left ear. After examination, the first defendant performed an operation to re– move the lump during which the lump was removed. Subsequent to the operation, the plaintiff suffered from damage to the facial nerve on his left side. The plaintiff instituted proceedings for damages on the grounds, inter alia, of the negligence of the first defendant. It was argued that the first de– fendant should have removed the lump in an operation, called a wider operation, in which the facial nerve would have been exposed at all times and that damage to it could have been avoided. In the operation actually performed, called a limited opera– tion, the facial nerve was not exposed dur– ing the operation. It was stated that the first defendant shouId have performed the wider operation in view, in particular, of his initial view on examination of the pia intiff that the lump was malignant. This initial view, in fact, proved unfounded, the lump not being malignant. In the High Court it was held that, having regard to the expert testimony presented, the first defendant had acted with all reasonable care. On appeal by the plaintiff HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the appeal: (1) even if it was established that the wider operation amounted to a reasonable precaution which existed to prevent the spread of malignancy (and this had not been established in the instant case), such alterndtive operation could not be relied on in the instant case since it was a precaution which had no causative relation to the instant case; (2) in relation to the limited operation actually performed by the first defendant, the expert evidence in the instant case indicated that he had conducted the operation in accord– ance with a reasonable standard of care and had exercised proper judgment in the course of that operation.

appeared on the evidence to be well capa– ble of looking after her own affairs, so that she had not discharged the onus on her in this respect; (4) although the trial judge had not, in his ex tempore judgment, explained why the applicant did not come within the exemption in s.38 of the 1989 Act, the Suprpme Court was in as good a position to judge whether the applicant fell within its terms, and it was not therefore necessary to order a re-hearing on this matter; and hav– ing regard to all the evidence, the applicant had not made out a case that she was entitled to the benefit of s.38 of the 1989 Act; (5) an an application for a variation of a maintenance order, the court must not commence de novo to reach a new view on the general question, but must determine whether, from the last effective order, the circumstances have changed which would warrant either an increase or a decrease in the amount of the maintenance; and while the applicant had made some vague and excessive claims as to the increased costs of schooling of the children since the original order was made in 1989, the Court was entitled to take judicial notice of the infla– tionary decrease in the value of money even since 1989 and that the costs of school– ing the children would have increased in that time; and therefore the Court would increase the weekly sum of 225 to 265 to take account of such changes. H.S. v ).5. Supreme Court 3 April 1992 FAMILY LAW - NULLITY - WHETHER PARTY HAD CAPACITY TO ENTER INTO LIFE-LONG COMMITMENT - WHETHER PARTY HAVING MATURITY TO APPRECI– ATE EFFECT OF ENTERING INTO MAR– RIAGE The petitioner, an Irish citizen, met the respondent on holiday in Europe and they had sexual relations. On the petitioner's return to Ireland, she was notified that she had obtained a Donnelly visa, which enti– tled her to work in the United States of America. She contacted the respondent and invited him to Ireland. When he arrived, she told him that she would like him to accompany her to the United States. They were informed that the respondent could do so if he was married to the petitioner. The respondent stated that he was willing to marry the petitioner on the basis that they could obtain a divorce in the United States. The parties were married in the Dublin Registry Office. Some days later, the mar– riage certificate was discovered by the pe– titioner's mother and the instant proceed– ings, seeking a declaration that the mar– riage was a nullity, were instituted shortly thereafter. The petitioner went tothe United States and the respondent returned to his native country. The marriage was never consummated. In the High Court, Carroll J refused to grant a declaration of nullity, holding that there was no evidence that the petitioner lacked the capacity to enter into a life-long commitment and also holding that the petitioner was amature person who understood the nature of the marriage con– tract. She concluded that the petitioner had got what she wanted, but that the mental reservation that the parties could obtain a

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