The Gazette 1993

APRIL 1993

GAZETTE

ing statement made by the accused, there was a danger of convicting without corrobo- rative evidence, any such warning could involve the implication that the Gardai in- volved in obtaining such a statement were to be treated in the same way as accomplices; and consideration of the introduction of such a warning was a matter for the Oireachtas. The People v Casey (No.2) [1963] IR 33 distinguished. Per McCarthy and Egan JJ (dis- senting): experience with miscarriages of jus- tice in recent years justified a change in the common law so that juries should be warned of the dangers of convicting on an uncor- roborated confession; (10) (per Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ expressing no view) while in the individual circumstances of a particular case, such as where a verbal statement only was in evidence, the trial judge might consider warn- ing the jury of the dangers of convicting without corroborative evidence, this did not arise in the instant case, and the trial judge's charge had adequately protected the appel- lant's right to a fair trial; (11) (Finlay CJ, Hederman and O'Flaherty JJ; McCarthy and Egan JJ dissenting) the trial judge had ad- equately addressed the jury on all the allega- tions of ill-treatment raised by the appellants in their evidence, and it was not the jury's function to assess the voluntariness of the statements (this being for the trial judge on the voir dire), but rather to assess whether the evidence given was truthful, and in the in- stant case the jury had been adequately addressed on the issue. The People v Conroy [1988] ILRM 4; [1986] IR 460 applied; (12) having regard to the death of a witness before the 1989 trial, who had testified in the 1985 trial that the second appellant had been at another location which would have made it impossible to be at the scene of the burglary, the second appellant's trial in 1989 should not have proceeded having regard to the prejudice which arose from the absence of this witness, and his appeal would be al- lowed on this ground. The State (O'Connell) v Fawsitt [1986] ILRM 639; {1986] IR 362 applied. Bates and Ors v Model Bakery Ltd Supreme Court 15 July 1992 EMPLOYMENT - REDUNDANCY - SERVICE OF STRIKE NOTICE-WHETHER STRIKE FRUSTRATEDCONTRACT OF EMPLOYMENT - WHETHER SUBSEQUENT CLO- SURE OF PREMISES EFFECTED REDUNDANCIES - PRAC- TICE - APPEAL FROM EMPLOYMENT APPEALS TRIBU- NAL - LIMITS TO SUCH APPEAL - Redundancy Pay- ments Act 1967, ss.7, 39 - Rules of the Superior Courts 1986, 0.105 The plaintiffs had been employed by the defendant company. In April 1987, the La- bour Court recommended a 5% pay increase for bakery workers, including the plaintiffs, to take effect from 1 April 1987. The defend- ant did not pay the increase immediately, but after a threat of industrial action the increase was implemented from September 1987. The increase was not retrospective, and in No- vember 1987 the plaintiffs' union served strike notice in relation to the retrospection element. In September 1987, a completely separate unofficial dispute had occurred in the bakery, arising from which a grievance procedure was agreed 'for the processing of any dispute which may arise". This agree- ment stipulated that no industrial action would

be taken until after a Labour Court recom- mendation on any such dispute. After the strike notice was served in November 1987 on the retrospection claim, the company issued a letter in January 1988 to all employ- ees stating that it was of the view that this was in breach of the September 1987 grievance procedure and that therefore the employees had frustrated their contract of employment. The bakery was subsequently closed, and the employees sought redundancy pursuant to the 1967 Act. The Employment Appeals Tri- bunal held that no redundancy was payable since the closure resulted form frustration of the contract. On case stated, the High Court reversed this decision. On further appeal HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) affirming the High Court: (1) the Septem- ber 1987 grievance procedure was not rel- evant ot the instant case, since its terms related to any dispute 'which may arise", and this related to future disputes, whereas the dispute in the instant case went back to the Labour Court determination in April 1987; (2) the service of strike notice by the employees cou Id not constitute frustration of the contract of employment with the company, and it was an implied term of every contract of employ- ment that the service of strike notice did not constitute notice of intention to terminate the contract. Becton Dickinson Ltd v Lee [1973] IR 1 applied; (2) the January 1988 letter to the employees constituted a dismissal within s.7 of the 1967 Act, and the employees were accordingly entitled to redundancy payments under the Act. Per curiam: on an appeal on a point of law from the Tribunal under the 1967 Act, the parties were confined to the findings of fact made by the Tribunal and could only raise issues of law. Application of Oshawa Ltd Supreme Court 8 July 1992 LICENSING - INTOXICATING LIQUOR - ADJOINING PREMISES - BOTH PREMISES LICENSED FOR SALE OF INTOXICATING LIQUOR - AMALGAMATION OF PREMISES - WHETHER LICENCE MAY BE GRANTED FOR AMALGAMATED PREMISES - LICENCE IN ONE LOCATION EXTINGUISHED ON DATE ON WHICH LICENCE ACTUALLY GRANTED FOR AMALGAMATED PREMISES - Licensing (Ireland) Act 1902, s.6 - Intoxicat- ing Liquor Act 1960, s.24 The applicant had purchased two adjoining premises, both of which held licences for the sale of intoxicating liquor. The two premises were amalgamated into one premises, and the applicant sought a licence for the amal- gamated premises under s.6 of the 1902 Act, as amended by s.24 of the 1960 Act. In the Circuit Court on 1 December 1987, the ap- plication was granted (over objections from local vintners) and the Circuit Court judge made an order providing for the extinguish- ment of one of the two licences attaching to the formerly separated premises, such extin- guishment taking effect if the Revenue Com- missioners granted the licence on applica- tion by the applicant. At the same time the CircuitCourt judge also made an order grant- ing another applicant (Tennis Village Cork Ltd) a licence; that order being possible on the basis that the licence attaching to the second premises owned by the applicant which had been amalgamated into the new premises would also be extinguished if Ten- nis Village Cork Ltd sought a Iicence from the Revenue Commissioners. Tennis Village Cork Ltd sought such a licence and this was granted 4

by the Revenue Commissioners in Décem- ber 1987. The Revenue Commissioners granted the appl icant its I icence for the amal- gamated premises on 16 February 1988. The objectors argued that a licence could only be granted unders.6of the 1902 Act, as amended by s.24 of the 1960 Act, in respect of amalga- mated premises where one of the premises had been unlicenced, but not in the case of two adjoining licenced premises. On case stated HELD by the Supreme Court (McCarthy, O'Flaherty and Egan JJ) affirming the Circuit Court order: the application in the Circuit Court under s.6 of the 1902 Act, as amended, did not have the effect of creating or of extinguishing any licence, since this was a matter for the Revenue Commissioners; in the instant case, since the Revenue Commis- sioners had granted a licence to Tennis Vil- lage Cork Ltd in December 1987, the licence in the former adjoining premises had been extinguished by the time the appl icant sought the licence from the Revenue Commission- ers for theamalagamated premises, and there- fore the former adjoining premises was unli- censed within s.6 of the 1902 Act at that stage; and it was not therefore necessary for the Court to determine the case on the argu- ment put forward by the objectors. Best v Wellcome Foundation Ltd and Ors Supreme Court 3 June 1992 NEGLIGENCE - MANUFACTURER - VACCINE FOR HUMAN USE - WHOOPING COUGH VACCINE - WHETHER MANUFACTURER NEGLIGENT IN ALLOW- ING BATCH OF VACCINE ONTO MARKET - CAUSA- TION -WHETHER LINK ESTABLISHED BETWEEN NEG- LIGENCE AND INJURY TO PLAINTIFF In 1969, when the plaintiff was 5 months old, he was vaccinated with a whooping cough vaccine manufactured by the first defendant. Subsequently, he developed violent fits and suffered serious brain damage. Proceedings were issued on his behalf claiming that the brain damage was caused by the negligence of the defendant company. In the hearing of the action in the High Court, the plaintiff's mother gave evidence that the fits had oc- curred in the immediate aftermath of the administration of the vaccine. No suggestion was made that the plaintiff's mother in any way attempted to mislead the court, but the doctor who had administered the vaccine did not recollect that any complaints had been made to him concerning the plaintiff in the immediate aftermath of the administra- tion of the vaccine. Detailed scientific evi- dence was also given in the High Court that the batch of vaccine out of which the plaintiff had received his individual injection had not passed certain laboratory tests on mice, but that the company had placed the vaccine on the market on the basis that this test failure did not necessarily indicate a defect in the vaccine batch. Hamilton P held (High Court, 11 January 1991) that the company acted in breach of its duty of care to the plaintiff in allowing the vaccine batch to be placed on the market. However, he dismissed the plain- tiff's claim on the ground that the doctor's evidence was to be preferred to that of the plaintiff's mother; and that it had not, there- fore, been established that the plaintiff's fits and brain damage had been caused by the administration of the vaccine. On appeal HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) allowing the plain- tiff's appeal and finding the defendant com-