The Gazette 1993

GAZETTE

JANUARY/FEBRUARY 1993

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.

the Supreme Court does not have the benefit of seeing and hearing the wit- nesses as a trial judge does, the Court must accept the findings of fact made by the trial judge where these are supported by credible evidence, even if there is evidence to support the contrary view; (3) the Supreme Court would not inter- fere with conclusions of law made by a trial judge based on findings of primary fact where it was clear that the trial judge finds that all relevant considerations were taken into account by the defendants; and the court should refrain from at- tempting to substitute its own view for that of those charged with making the decision in question unless the decision- maker failed to inform themselves or to apply appropriate standards. Per curiam: the Court should apply the same ap- proach to appeals from a trial judge as it had applied to appeals from juries prior to the enactment of the Courts Act 1988. Northern Bank Finance Corp Ltd v Charlton [1979J IR 149 and Dunne v National Maternity Hospital [ 1989] ILRM 735; 11989] IR 91 applied. PRACTICE - ACTION - SATISFACTION OF CLAIM - PAYMENT INTO COURT ON FOOT OF AGREEMENT BETWEEN PLAINTIFFS ANDONE DEFENDANT PRIOR TO INSTITUTION OF PROCEEDINGS - WHETHER AMOUNTING TO SATISFACTION OF CLAIM - WHETHER CLAIM AGAINST OTHER DEFENDANTS SUSTAINABLE - Civil Liability Act I961,ss.16, 17 The infant plaintiffs were seriously in- jured from burns sustained when the car they were in went on fire. The car was owned by their father, the fourth-named defendant. The plaintiffs' solicitors noti- fied a number of parties, including the father (who had carried out some work on the car), of their intention to institute proceedings for damages arising from their injuries. The first-named defendant had sold the car to the plaintiff, the sec- ond-named defendant was the importer of the car and the third-named defendant had provided parts for the car which might have been involved in the fire. Prior to the initiation of the proceedings agai nst any of the defendants, the father's insurance company agreed to pay the sum of £815,000 into court to the credit of the plaintiffs in full discharge of the father's liability to the plaintiffs. This pay- ment was approved by Hamilton P in February 1990, and was made a rule of court. The plaintiffs were also made wards of court. Hamilton P was informed at this Murphy v J. Donohoe Ltd and Ors Su- preme Court 11 March 1992

hearing that proceedings would be started against all four defendants, including the father. None of the other three defend- ants were represented at this hearing, nor were they informed about the hearing. After the institution of proceedings, the second-named defendant pleaded in its defence that the payment made in Febru- ary 1990 constituted satisfaction of the plaintiffs' claim against the defendants and that the proceedings should be dis- continued on this ground under ss.16 and 17 of the 1961 Act. At a hearing of this point as a preliminary issue, Hamil- ton P rejected this argument. On appeal by the first and second defendants HELD by the Supreme Court (McCarthy, O'Flaherty and Egan JJ; Finlay CJ and Hederman J dissenting): (1) the order of February 1990 did not constitute the 'sat- isfaction' of the plaintiffs' claim against the first and second defendants within the meaning of ss.16 and 17 of the 1961 Act, since it was not made after any judgment of the Court on the issues be- tween the parties and the payment was made on the basis of an express reserva- tion that the plaintiffs would subsequently institute proceedings against the alleged joint tortfeasors involved in the matter; (2) the terms of the February 1990 order should be honoured in that the sum re- ferred to should be incorporated in any order made in the proceedings; but the proceedings should continue, without any limitation as to damages, against all four defendants. In re Hibernian Transport Cos Ltd Su- preme Court 21 January 1992 PRACTICE - COSTS - APPEAL TO SUPREME COURT - LIQUIDATION OF COMPANY - ISSUE ARISING - WHETHER CREDITORS ENTITLED TO INTEREST - WHETHER SHAREHOLDERS ENITLED TO INDEM- NITY AGAINST COSTS OF APPEAL TO SUPREME COURT The named company and a subsidiary, Palgrave Murphy Ltd, were put into liqui- dation in 1970. At the time both compa- nies were insolvent. However, as a result of complex legal issues which arose for determination in the course of the liqui- dation, it was not possible to pay the creditors until 1983, by which time a substantial sum stood in the company's bank account. The result was that after each of the creditors was paid in full, a surplus still remained and the question thus arose as to whether the creditors were entitled to interest on the sums owing. Parties were nominated to repre- sent the respective interests of the com-

Hay v O'Grady Supreme Court 4 Febru- ary 1992 PRACTICE - SUPREME COURT - APPEAL - REVIEW OF FINDINGS OF FACT BY TRIAL COURT LIMIT TO SUPREME COURT'S FUNCTION - WHETHER FIND- ING THAT DEFENDANTS NOT NEGLIGENT SUP- PORTED BY EVIDENCE - Constitution, Article 34.4.3 - Courts Act 1988 - Rules of the Superior Courts 1986, 0.58 The plaintiff, a nurse, was employed as a community facilitator by a hospital, rep- resented in the proceedings by the de- fendant. The plaintiff's work involved bringing patients with severe mental dis- ability into the ordinary life of the com- munity; in effect acting as house parent for the patient to ensure that the patient could fend for themselves. Patients were selected on the basis of a review of pa- tients by a management group of the hospital. One patient for which the plain- tiff was community facilitator was prone to moods in which she would catch a person's hair or bite somebody. On one outing to a hotel from the home in which she had been placed, the patient had snatched some food and was restrained; she also took a chair from under a hotel guest when he had stood up to lift some- thing off the table. The plaintiff was with the plaintiff at the time. After this inci- dent, it was decided to allow the patient remain in the home under the care of the plaintiff rather than recall her to hospital. Shortly after this incident, the patient assaulted the plaintiff. The plaintiff insti- tuted proceedings for damages claiming that the hospital had been negligent in allowing the patient to continue under the plaintiff's sole control and that the hospital should have recalled the patient to the hospital in the light of the patient's behaviour. In the High Court, Lynch J held that the hospital had acted in a reasonable manner and that it was enti- tled, even in light of the incident in the hotel, to allow the patient continue in the home under the sole control of the plain- tiff. On appeal by the plaintiff HELD by theSupremeCourt(FinlayCJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dis- missing the appeal: (1) although 0.58 of the 1986 Rules provides that appeals to the Supreme Court shall be by way of re- hearing, this was to be interpreted as involving a re-hearing of the legal issues arising in the court of trial and did not extend to a re-hearing of the oral evi- dence given at the trial court, and the Court had, in effect, limited its jurisdic- tion under Article 34.4.3 of the Constitu- tion in the case law on this topic; (2) since

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