Murphy v Roche

JurisdictionIreland
CourtSupreme Court
JudgeFINLAY C.J.
Date01 January 1987
Docket Number[S.C. No. 51 of 1985]

1986 WJSC-SC 1349

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

51/85
MURPHY v. ROCHE

BETWEEN

DERMOT MURPHY
Plaintiff

and

MARTIN ROCHE, SEAN O MUNAIN and JOHN McCARTHY
Defendants

and

THE ATTORNEY GENERAL
Notice Party

Citations:

CAHILL V SUTTON 1980 IR 269

COOKE V WALSH 1984 IR 710 1984 ILRM 208, 1983 ILRM 429

KILTY V HAYDEN 1969 IR 261

MCDONALD V BORD NA gCON 1965 IR 217, 100 ILTR 89

RSC O.25

TARA MINES V MIN INDUSTRY & COMMERCE 1975 IR 242

Synopsis:

PRACTICE

Point of law

Preliminary issue - Two issues - Issue at common law and contingent constitutional issue - Club - Plaintiff member - Club held a dance on club premises - Plaintiff member was admitted to the dance on payment of entrance fee - Plaintiff fell and was injured on club premises during course of dance - Plaintiff instituted action against defendant trustees of club claiming damages for negligence - In their defence the defendants pleaded that the plaintiff, as a member of the club, was estopped from suing the club for damages - In his reply the plaintiff denied that he was so estopped and pleaded further that, if he were so estopped at common law, such estoppel was repugnant to the Constitution - The plaintiff applied to the High Court, by notice of motion served on the defendants and on the Attorney General, for an order directing that the said points of law be set down for hearing before the trial of the action - The High Court made an order, pursuant to order 25 of the Rules of 1962, directing that the first special issue and, if necessary, the second special issue be tried by a judge before the trial of the action - The Attorney General appealed against the order of the High Court - Held, in varying the order of the High Court, that the issue of estoppel notwithstanding the plaintiff's payment of an entrance fee should be determined by a judge prior to the trial of the action - Held that the court would adjourn, until the final determination of the first issue, the hearing of the appeal in regard to the constitutional issue - Rules of the Superior Courts, 1962, order 25 - (51/85 - Supreme Court - 18/12/86 [1987] IR 106

|Murphy v. Roche|

1

JUDGMENT delivered on the 18th day of December 1986 by FINLAY C.J. [NEM DISS]

2

This is an appeal brought by the Attorney General as Notice Party against an Order made by Hamilton P. in the High Court on the 3rd day of December 1984 directing that a preliminary point of law be disposed of in this action by a Judge, prior to the trial of the action, namely, whether a member of an unincorporated members" club can maintain an action for negligence against the representatives of the club and, if it is part of the law of Ireland that a member is prohibited from suing representatives of such an unincorporated members" club, whether such law is invalid, having regard to the provisions of the Constitution.

3

The Plaintiff is and was at all material times a member of the Wolfe Tone na Sionna GAA Club. On the 2nd August 1980 he attended a dance being organised and run by the said Club on its premises, paying the admission fee of £1.50 for entry to the dance. Whilst on the said premises and attending the dance, the Plaintiff alleges that he was injured as a result of a fall caused by the negligence and breach of duty of the persons who were organising and running the dance.

4

The Plaintiff instituted proceedings against the three Defendants as trustees of the Club, claiming damages for these injuries. The Defendants entered a Defence containing a full denial, including a denial of negligence and breach of duty, and further raising a special defence at paragraph 8 in the following terms:

"Further or alternatively, and without prejudice to anything hereinbefore pleaded, the Plaintiff is and/or was at all material times a member of the Shannon Wolfe Tone Gaelic Athletic Association Club, and was and is thereby estopped from maintaining these proceedings against the said Club or the Defendants as trustees thereof."

5

By way of Special Reply to that Defence, the Plaintiff at paragraph 3 of the Reply pleaded as follows:

"The Plaintiff denies that he is estopped from maintaining these proceedings and will aver that any estoppel alleged by the Defendants is a matter of law repugnant to the Constitution of Ireland."

6

The Plaintiff by Notice of Motion sought an Order pursuant to Order 25 of the Rules of the Superior Courts setting down for hearing, prior to the trial, points of law raised in the Defence and Reply which I have quoted, and served notice of that Motion on not only the Defendants but also on the Attorney General by reason of the issue arising with regard to the Constitutional question. The Defendants" attitude on the hearing of the Motion was to consent to the trial of these as preliminary issues, but the Attorney General objected.

...

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