The Gazette 1993

APRIL

1993 pumped from a chlorine room through a rigid plastic pipe into a control building to an upstand pipe into which the mixture was discharged. A length of flexible plastic pipe joined the rigid pipe and the upstand pipe in the control room. The control building and chlorine purification plant had been built by Mahon & McPhillips in 1968; in 1972, they entered into a contract to service and main- tain the system three times a year; and in 1981, they had replaced the pipe between the chlorine room and the control building. In January 1986, on the arrival of the plaintiff in the control building, he was hit with a dense cloud of chlorine gas, some of which he inhaled. He suffered some physical inju- ries as a result but was also severely affected mentally by the incident. In the High Court ([1990] 2 IR 1), O'Hanlon J held that the accident was caused by a failure of the joint between the rigid and flexible pipes, result- ing in the release of the chlorine gas. He held that both defendants had been negligent and he apportioned liability equally between them. Damages of 280,727 were awarded. On appeal by the UDC on the issue of apportionment only HELD by the Supreme Court (Finlay CJ, O'Flaherty and Blayney JJ) allowing the appeal: (1) although the UDC were negligent in failing to notice that the joint in question was unsuitable and in failing to acquaint themselves in time with the de- velopment of safety procedures which had come to be regarded as standard, they were also entitled to rely on the greater expertise of Mahon & McPhillips in connection with the construction and maintenance of waterworks; and having designed and erected the water- works, and contracted for the periodical serv- ice and maintenance of the equipment, Mahon & McPhillips owed an obligation to the UDC to keep it informed of changes in standards, and although a recommendation had been made in this regard in August 1985 (which had not been acted on by January 1986), the trial judge had found that Mahon & McPhillips should have reacted sooner in this regard; (2) the trial judge's equal division of liability between the parties failed to have sufficient regard to the greater degree of contribution by Mahon & McPhillips to the injuries sustained by the plaintiff, within the meaning of s.21(2) of the 1961 Act; and bearing in mind Mahon & McPhillips' greater expertise, very much less blame attached to the UDC's engineers for failing to discover the inadequacy of the joint in question; and accordingly the Court would apportion 80% liability to Mahon & McPhillips and 20% to the UDC. Per O'Flaherty (Finlay CJ concur- ring): an employer remains primarily liable in law for, and cannot fully delegate to an indepenedent contractor liability for, the employer's duty to provide a reasonably safe place of work for its employees; but where an independent contractor is solely responsible for causing injury, the employer is entitled to claim a contribution from the contractor which would amount to an indemnity.

GAZETTE judge had been correct to conclude that Curust had established a triable issue that the 1986 agreement was valid under Article 85 of the Treaty of Rome; (2) although Curust had acted in breach of contract by recom- mencing manufacture of the primer without Loewe's consent, this did not disentitle them to interlocutory relief since something in the nature of turpitude would have to be in- volved to disentitle them to equitable relief; (3) although the evidence indicated that there would be a difficulty in ascertaining any damages which might be payable to Curust in the event of their succeeding, this would not be impossible, and having regard to the fact that the damages would be a quantifiable commercial loss and that Loewe would be able to meet any such sum, the plaintiffs had not established that damages would not be an adequate remedy, and so had not made out a case for an interlocutory injunction. Per curiam: a factor in the refusal of interlocutory relief was an estimate that the substantive action could be heard in the High Court in Spring 1993 and the parties should expedite the pleadings on this basis. Gannon v B & I Steampacket Co Ltd, Landliner Travel Ltd and Edenderry Trans- port Ltd High Court, 3 July 1992; Supreme Court, 5 November 1992 JURISDICTION OF COURTS - WHETHER PARTY PROP- ERLY JOINED - BOAT AND COACH TRIP FROM IRE- LAND TO ENGLAND - TRIP BOOKED WITH IRISH SHIPPING COMPANY - COACH PROVIDED BY ENG- LISH COMPANY - TRAFFIC ACCIDENT INVOLVING COACH AND LORRY - WHETHER SHIPPING COM- PANY MAY BE SUED FOR BREACH OF IMPLED TERM OF CONTRACT - WHETHER ENGLISH COMPANIES MAY BE JOINED - ABUSE OF PROCESS OF COURTS - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 - Rules of the Supe- rior Courts 1986, 0.26, r.2 The plaintiff booked a boat and coach trip from Ireland to England through the first defendant, B & I, an Irish company. The coach was provided by the second defend- ant, Landliner, an English company. During the journey, the coach was in collision in England with a lorry owned by the third defendant, Edenderry. The plaintiff sustained personal injuries and instituted proceedings against the defendants. As against B & I, the plaintiff claimed that it was in breach of contract in connection with the choice, op- eration and driving of the coach involved in the case. The claim against Landliner and Edenderry was in tort, and the plaintiff joined them as defendants in reliance on the 1968 Brussels Convention, enacted into Irish law by the 1988 Act. Landliner and Edenderry applied under 0.26, r.2 of the 1986 Rules to have service of notice of the proceedings set aside. In the High Court HELD by Denham J refusing to set aside service: there was a reasonable case for the plaintiff to sue B & I in contract, and although the other defend- ants were being sued in tort there was a connection between all defendants and so Landliner and Edenderry were properly joined. On appeal HELD by the Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) allowing the appeal and setting aside the service of notice: (1) although there were grounds for the plaintiff to sue B & I, the Court was required under the 1968 Convention to inquire further whether a party was joined in proceedings for the purpose of ousting the

jurisdiction of the courts of the State of other parties being joined; and since, from the evidence adduced, it appeared that the col- lision between the coach and the lorry was not due to any defect in the coach or the competence of the driver of the coach and therefore any claim against B & I would be " very difficult to sustain, the Court was driven to the conclusion that the reason for suing B & I appeared to be to oust the jurisdiction of the English courts, and on that basis the court should refuse to allow the plaintiff to join Landliner and Edenderry, under Article 6 of the Convention. KalfelisvBankhausSchroder (Case 189/87) [1988] ECR 5583 applied; (2) si nee the removal of Landl i ner and Edenderry from the proceedings would involve a preju- dice to B & I, as B & I would be unable to join them as third parties, an application by B & I to have the plaintiff's proceedingsdismissed for being an abuse of the processes of the courts would be successful. The respondent claimed that a fire which occurred at his premises on 13 November 1983 was caused maliciously. On 14 No- vember 1982, he served on the applicant Council a preliminary notice of intention to apply for compensation for malicious inju- ries under the 1981 Act. S.23 of the 1981 Act sets out a three year limitation period from the date on which the cause of action ac- crues, which is the date of the service of the preliminary notice. No proceedings were instituted by the end of the limitation period, but the respondent applied to the Circuit Court for an order extending the time for making a claim under the 1981 Act. This was granted by the Circuit Court judge on the ground that s.14 of the 1981 Act permitted such extension. The applicant applied on judicial review for an order quashing the Circuit Court decision. In the High Court, Carroll J granted the order sought. On appeal HELD by the Supreme Court (O'Flaherty, Egan and Blayney JJ) allowing the appeal: there was no inconsistency between s.23 of the 1981 Act, which provided for a three year time limit, and s.14 of the 1981 Act, which perm itted the C i rcu it Cou rt to extend the ti me for any act or proceedings under the Act itself; and having regard to the obligation on a court to give effect to the literal meaning of the words of legislation and that it should avoid an interpretation which would render a provision inoperative, the Circuit Court judge had the jurisdiction to make the order in the instant case. Dublin Corporation v Carroll [1987] IR 410 overruled. Cork County Council v Whillock Supreme Court 3 November 1992 MALICIOUS INJURIES - TIME LIMIT - WHETHER EX- TENSION PERMISSIBLE - STATUTORY INTERPRETA- TION - Malicious Injuries Act 1981, ss.14, 23 Connolly v Dundalk UDC and Mahon & McPhillips Ltd Supreme Court 18 Novem- ber 1992 TORT - EMPLOYER'S LIABILITY - MAINTENANCE OF EQUIPMENT BY INDEPENDENT CONTRACTOR - CONTRIBUTORY NEGLIGENCE - DEGREE OF FAULT - Civil Liability Act 1961, s.21(2) The plaintiff and one other person were employed by the UDC to operate its water- works. As part of the water purification proc- ess, chlorine gas mixed with water was 4