THE HIGH COURT
RECORD NO. 2819P/2007
Between
CATHERINE MURPHY and
FINIAN McGRATH
Plaintiffs
And
THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL
Defendants
25th April 2007
The proceedings are listed for mention at 9.30 am on 26th April 2007 in Court 1, Distillery, Church St. Dublin 7. (Clarke J.)
For Employers’ duties see HERE
Asthma is not well understood, and occupational asthma is frequently defined in terms of exclusion from other definitions. It consists of a constriction of the airways resulting in shortness
of breath, sometimes accompanied by hay fever-like reactions or a cough or both. These symptoms can be mild or severe in degree. An attack of asthma can be very distressing, on occasions requiring hospitalization and can last up to 2 hours. They vary in frequency, but often occur at night. In the case of some people an attack comes on within minutes of exposure, while in others the attacks occur later. There is usually no attack on the occasion of first exposure to the asthma-causing agent. Typically in occupational asthma there is a relief over a holiday or week end period.
The following is a selection of substances causing occupational asthma:
Substance Occupation
2,4-dinitro-O-cresol : Farming and Horticulture
Acrolein : Chemical workers Diazomethane : Chemical workers
Dinitro-phenols : Printing and Dying
Isocyanates : Paint & Chemical Workers
Toluene di-isocyanate : Plastic & Rubber Workers
Salts of Platinum : Platinum refining
Epoxy resins : Chemicals & Construction
Rosin in soldering flux : Soldering
Small animals : Vets & Lab Workers
Grain and flour and
mould and mites of same : Millers & Bakers
Antibiotics : Farmers & Health Workers
Wood dust : Carpenters
Oysters : Oyster Workers
Tea dust : Tea Workers
Tobacco : Tobacco Workers
Colophony : Electronics Workers
Gum acacia : Printers
Papain : Meat processors
Subtilisins : Detergents Workers
Not every worker will contract asthma on exposure but the estimates of proportions of workers who do varies from 5% to 50% depending on the relative substance. Usually, removal from exposure will relieve symptoms but not in all individuals. In addition these may be sensitized to other substances which will also bring on attacks. In the United Kingdom it has been estimated that 40% of workers in the grain business have occupational asthma and in bakers the level is 5 -10%.
The incidence of asthma in workers in the electronics industry is increasing due to metal soldering
The Irish Times (21st April 2007) has, in the person of a regular columnist, condemned an expression of scepticism about politicians (some) from Ryanair.
The offering from the columnist is an unabashed case of special pleading for (those?) politicians.
The case is flawed.
It misleadingly implies, at least, that âself denyingâ? politicians are at a disadvantage, compared to anyone else in society, in representing themselves and their policies to the public. The âself denialâ? consists, allegedly, in the establishment of legislation limiting expenditure by politicians at elections.
Of the Ryanair âcontributionâ? to the election campaign (in full swing, but undeclared) he claims that it is âdamaging to the democratic processâ?.
In the course of making his case he points to the obligation of âthird partiesâ? to register with the Standards in Public Office Commission if they are in receipt of contributions in excess of a certain limit. That limit is tiny, unlike the spending limits to be adhered to by politicians.
He confesses the purpose of the obligation on them to register with the Standards in Public Office Commission was to limit the expression of views and opinions in opposition (yes, in support of also, but he does not mention that) to politicians. What he fails to say is that the legislation is protective not only of politicians but of specific politicians.
He identified the âthird partiesâ? he or his political friends had had in mind: trade unions, lobby groups, community organisations. He fails to mention that the definition of âthird partiesâ? was much more extensive than that. It covers everbody other than a politician.
âpolitical purposeâ? has been very fully defined in Section 49 of the Electoral (Amendment) Act 2001.
Under the Act of 2001, only âthird partiesâ? pursuing âpolitical purposesâ? are obliged to register with the Standards in Public Office Commission. See HERE for an earlier posting on the topic.
Section 49 reads:
âpolitical purposesâ means any of the following purposes, namely –
(i) (I) to promote or oppose directly or indirectly, the interests of a political party, a political group, a member of either House of the Oireachtas or a representative in the European Parliament, or
(II) to present, directly or indirectly, the policies or a particular policy of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament or a third party, or
(III) to present, directly or indirectly, the comments of a political party, a political group, a member of either House of the Oireachtas, a representative in the European Parliament or a third party with regard to the policy or policies of another political party, political group, a member of either House of the Oireachtas, representative in the European Parliament, third party or candidate at an election or referendum or otherwise, or
(IV) to promote or oppose, directly or indirectly, the interests of a third party in connection with the conduct or management of any campaign conducted with a view to promoting or procuring a particular outcome in relation to a policy or policies or functions of the Government or any public authority;
(ii) to promote or oppose, directly or indirectly, the election of a candidate at a Dáil, Seanad or European election or to solicit votes for or against a candidate or to present the policies or a particular policy of a candidate or the views of a candidate on any matter connected with the election or the comments of a candidate with regard to the policy or policies of a political party or a political group or of another candidate at the election or otherwise;
(iii) otherwise to influence the outcome of the election or a referendum or campaign referred to in paragraph (i)(IV) of this definition;
On this definition an effort, collective or otherwise, to deprecate or oppose the government of Robert Mugabe in Zimbabwe would, if in receipt of more than â¬125 in a year, oblige the recipient to register with the Standards in Public Office Commission. (Mugabe is a “third party” and his government is a “public authority”)
The Irish Times would be better off defending freedom of expression and the right to communicate rather than making special pleading for politicians seeking to protect themselves from accountability to the electorate.
THE HIGH COURT
RECORD NO. 2819P/2007
Between
CATHERINE MURPHY and
FINIAN McGRATH
Plaintiffs
And
THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL
Defendants
23rd April 2007
1. The Plaintiffs’ motion for directions came before the Court.
2. Counsel for the Plaintiffs indicated that the respective counsel for the parties had discussed the issues and the Defendants had indicated that their defence was being drafted and was expected to be completed shortly.
3. Counsel for the Plaintiffs said that the Plaintiffs had written to the Defendants seeking an Appearance from the Defendants and also seeking agreement for an application to get directions from the court. In these circumstances, he said, the Plaintiffs were applying for costs on the motion.
4. Counsel for the Defendants opposed the application for costs and said he was sure the court would have many more important things to consider than the costs on the motion and he would be satisfied to have the costs reserved. He indicated that he believed the parties would need to exchange witness statements and hoped that he might be ready by Thursday in this regard and in regard to the service of a defence.
5. Counsel for the Defendants said, in so many words, it was undesirable that the issue should be left unresolved with an election in the offing.
6. The judge indicated that, without binding anyone, he felt it might be a case where particular matters might be agreed between the parties, with a consequent saving in time; that the outstanding issues might be reduced to legal argument.
7. The parties indicated they would commence the necessary work and hoped to be in a better position by Thursday to say when they would be ready for trial. They said a trial on Thursday of next week might be achievable.
8. The court indicated the matter would be listed again on 26th April 2007 to review the situation. The court reserved the costs on the Motion.
It has been asserted by some in the chattering classes (politicians and their agents) that the Irish electorate is cynical.
The concise Oxford English Dictionary (1964) defines these words as follows:
CYNICAL: Churlish; captious; incredulous of human goodness; sneering
SCEPTICAL: Inclined to suspense of judgement, given to questioning truth of facts & soundness of inferences, critical, incredulous; accepting Pyrrhonism, denying possibility of knowledge; holding, designed to support, inspired by, the ideas of the sceptics
Pyrrhonism is a reference to one of the sceptics of antiquity – Pyrrho of Elis who held that certainty of knowledge is unattainable.
For our purposes it can be taken as a given that the Irish electorate are not debating the ideas of Pyrrho or any other sceptic of antiquity in the pubs, clubs or meeting places of Ireland.
This apart there is a clear difference between a Cynic and a Sceptic.
A voter meeting a politician is reasonable in being “Inclined to suspense of judgement, given to questioning truth of facts & soundness of inferences” as opposed to one “incredulous of human goodness”.
The obverse of this is: A politician who abuses the electorate by claiming they respond to him with denials of the possibility of human goodness, when they do nothing of the sort, being merely “Inclined to suspense of judgement, given to questioning truth of facts & soundness of inferences”, is revealing everything about himself/herself and nothing about the electorate.
What is there to be usefully said about the pollution of the Galway city public drinking water supply?
It is useful to ask:
a) why and how it happened;
b) who, if anyone, is responsible as an executive;
c) who, if anyone, is legally responsible;
WHY AND HOW IT HAPPENED?
Ever since 1832, at least, it has been recognised that the safety of the public drinking water supply cannot be taken for granted and requires executive action to deliver it. That was the occasion of an outbreak of cholera in London, traced to several street pumps, all of which were drawing water from water sources polluted by sewage. The germ theory of disease was unknown, but the clusters of deaths corresponded with use of the pumps. (more…)
THE HIGH COURT
RECORD NO. 2819P/2007
Between
CATHERINE MURPHY and
FINIAN McGRATH
Plaintiffs
And
THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL
Defendants
NOTICE OF MOTION
TAKE NOTICE that on the 23rd day of April 2007 at 11:00 OâClock in the forenoon or the first available opportunity thereafter Counsel on behalf of the Plaintiffs will apply to this Honourable Court sitting at the Four Courts, Inns Quay in the City of Dublin for:
1. An Order abridging the time for the service of this Notice of Motion;
2. Such Directions as to Pleadings as to this Honorable Court deems meet;
3. Such further and other Orders as this Honourable Court deems meet;
4. Costs.
WHICH APPLICATION will be grounded upon the proceedings already had herein, this Notice of Motion and Affidavit of Service thereof, the Affidavit of Edward McGarr sworn the 19th day of April 2007 and the exhibits therein referred to the nature of the case and the reasons to be offered.
Dated 19th day of April 2007
_______________________________________
McGARR Solicitors
Solicitors for the Plaintiff,
34/35 Wicklow Street, Dublin 2
To:
The Chief State Solicitor.
Solicitor for the Defendants
Little Ship St. Dublin 8.
And:
The Registrar
Central Office
Four Courts
Dublin 7
THE HIGH COURT
RECORD NO. 2819P/2007
Between
CATHERINE MURPHY and
FINIAN McGRATH
Plaintiffs
And
THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL
Defendants
AFFIDAVIT OF EDWARD McGARR
Sworn 19th April 2007
I, Edward McGarr, solicitor, of 12 City Gate, Lower Bridge Street, Dublin 8, being aged 18 years and upwards MAKE OATH and say as follows:
1. I am the Principal of McGarr Solicitors of 12 City Gate, Lower Bridge Street, Dublin 8 who are the solicitors on record for the Plaintiffs in the above entitled action and I make this Affidavit for and on behalf of the Plaintiffs from facts within my own knowledge save where otherwise appears and whereso appearing I believe the same to be true and accurate.
2. I beg to refer to the proceedings already had herein when produced.
3. As appears therefrom the Plaintiffsâ claim relates to the failure of the State and the Government to ensure that the Dáil constituencies were redrawn to take account of the changes in population as detailed in the 2006 Census results and the failure to ensure that the constituencies are defined as mandated by the Constitution so that the ratio between the numbers to be elected to Dáil Eireann for each constituency and the population of each constituency as ascertained at the last census are, so far as practicable, the same throughout the country and so as to ensure that the constituencies are drawn by law so as to ensure a ratio of members to population of not less than one member to each 30,000 of population and not more than one member for each 20,000 of population.
4. I say and believe that there is a constitutional obligation on the Government and the State to ensure that the election of members for the formation of the 30th Dáil is democratic and in accordance with the requirements of the Constitution. I say and believe that the minimum required for such democratic elections is prescribed in Bunreacht Na Eireann. The final figures for the 2006 Census as published on the 29th March 2007 clearly show that there are a number of constituencies where the people will be under represented by virtue of the constituencies as drawn as defined in the Schedule to the Electoral (Amendment) Act, 2005 and there are a number of constituencies which will be over represented. I beg to refer to a table of the said figures as published by the Central Statistics Office on that date showing this, upon which marked âEMcG 1â? I have endorsed my name prior to the swearing hereof.
5. I say and believe that the Defendants have been aware since the publication of the preliminary report from the Central Statistics Office on the 15th July 2006, which detailed a major population change in the State from 2002-2006, that if the constituencies as defined in the Schedule to the Electoral (Amendment) Act, 2005 were not redrawn prior to the general election, significant and material inequality in the ratio between the number of members to be elected for each constituency and the population of each constituency will result.
6. I say the proceedings were issued in this case on the 5th April 2007 and were served together with the Statement of Claim, on the Defendants on the 5th April 2007 and I beg to refer to the Affidavit of Service when produced.
7. I say that by letter dated 11th April 2007 and sent by post and facsimile I wrote to the Chief State Solicitorâs Office indicating, inter alia the need for urgent action by the Government and offering the Plaintiffs assistance in terms of urgent applications to Court for directions in an attempt to have the proceedings dealt with quickly. In this regard I beg to refer to a true copy of the said letters upon which marked with the letters âEMcG 2â? I have signed my name prior to the swearing hereof.
8. I say that by letter dated the 12th April 2007 and received on the 13th April 2007 a response was received from the Chief State Solicitorâs Office acknowledging receipt of the letter and stating that they would reply more formally when they had a chance to take their clientâs instructions. In this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 3â? I have signed my name prior to the swearing hereof.
9. I say that the Defendants have not communicated further with your Deponent nor have they entered an Appearance to the proceedings despite the fact that the time for entry of an Appearance has expired and despite the fact that these proceedings are required to be dealt with as a matter of urgency in light of the constitutional requirement to have an election for the formation of the 30th Dáil in early course.
10. I say by letter dated the 16th April 2007 I again wrote to the Chief State Solicitorâs Office indicating that the time for entry of the Memorandum of Appearance had expired and again pointing out that there was now beyond dispute a constitutional obligation on the Government to ensure that the forthcoming elections were democratic and constitutional and that this could not be done on the basis of the Electoral (Amendment) Act, 2005 or on the basis of the constituencies drawn thereby. It was further pointed out that a failure to meet this constitutional obligation would drain the outcome of any elections of democratic and constitutional legitimacy. The Defendants were called upon to introduce the necessary amending legislation to redraw the constituency boundaries for the purposes of the election and to serve their Memorandum of Appearance. In this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 4â? I have signed my name prior to the swearing hereof
11. I say that by further letter of the 18th April 2007 I again wrote to the Defendantsâ solicitors putting them on notice of the present application and in this regard I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 5â? I have signed my name prior to the swearing hereof.
12. I say that the Defendants have failed, refused and neglected to respond to this letter or take any action on foot thereof.
13. Ultimately, by letter dated 17th April 2007, received in my office on 19th April 2007, the Defendants served a copy of a Memorandum of Appearance herein. I beg to refer to a true copy of the said letter upon which marked with the letters âEMcG 6â? I have signed my name prior to the swearing hereof and I beg to refer to a copy of the Memorandum of Appearance when produced.
14. There must be a concern that any delay in these proceedings will ensure that the issues raised thereby will not be dealt with prior to the general election being called. I say and believe that the proceedings raise extremely serious constitutional matters in relation to the constituencies as defined in the Schedule to the Electoral (Amendment) Act, 2005 and in relation to any election held on foot thereof.
15. I therefore pray this Honourable Court for the Orders and directions sought.
SWORN before me,
a Commissioner of Oaths/practicing
solicitor, by the said Edward McGarr
who is personally known to me
at
this 19th day of April 2007.
______________________________
COMMISSIONER FOR OATHS/
PRACTISING SOLICITOR
This Affidavit is filed on 19th day of April 2007 by McGarr Solicitors
12 City Gate, Lower Bridge Street, Dublin 8 Solicitors for Plaintiffs.
For Employers’ duties see HERE
Breathing is the most common avenue for the introduction of poisons or harmful agents into the human system. Whether it involves a dust, gas, fume, vapour, biological agent, fibre, spores or enzymes, the effects can vary from irritation to devastating, permanent, disabilities or death. The mechanisms for these consequences vary with the offending agent and the effects vary with the agent and the circumstances of exposure.
The flow of air into the lungs begins at the nose and mouth and passes into the windpipe and bronchii. There are many bronchii or tubes, of decreasing diameter and these fine tubes extend into every part of the lungs and terminate in the alveoli, small leaf-shaped chambers where the oxygen in the air is passed into the blood stream.
The air breathed in is cleaned by a combination of hairs in the nose and mucus on the walls of the bronchii. The mucus is constantly being ferried up to the nose and mouth with its burden of dirt and particles. With one exception, only a gas, vapour or fume can pass into the system to reach the alveoli.
That exception is respirable dust or fibre, which means the dust or fibre particle must be of a size equal to or smaller than 5 µm (one µm is called a micron). For dust to be visible in the air, it needs to be at least 50 µm in size. Fibres of asbestos can range down in size as small as 0.015 µm in diameter. These can only be seen with an electron microscope. There is no filter available to catch particles of this size.
1 metre = 39.7 inches
1 metre = 100 centimetres (cm)
1 cm = 100 millimetres (mm)
1 mm = 1,000 microns (µ)
A vapour is a suspension of liquid droplets in air or gas. A fume is a suspension of metal droplets in air or gas.
The following are some categories of lung disease, based on the mechanisms of damage:
1. Asthmatic responses
2. Pneumoconioses
3. Irritations
4. Hypersensitive reactions.
5. Non-irritants
Marinetti was the leading Futurist,, a group of Italian intellectuals. The group was launched with the publication of the Futurist Manifesto on 1909. They praised speed but were dubious about women. (It is believed by the writer that the Futurists were men to a man).
In 1932, Marinetti turned his attention to food. The following extract is from âThe Futurist Cookbookâ? translated by Suzanne Brill.
Of pasta he wrote:
We call for the abolition of pastaciutta, an absurd Italian gastronomic religion. It may be that a diet of cod, roast beef and steamed pudding is beneficial to the English, cold cuts and cheese to the Dutch and sauerkraut, smoked pork and sausage to the Germans, but pasta is not beneficial to the Italians. For example, it is completely hostile to the vivacious spirit and passionate, generous, intuitive soul of the Neapolitans. If these people have been heroic fighters, inspired artists, awe-inspiring orators, shrewd lawyers, tenacious farmers it was in spite of their voluminous daily plate of pasta. When they eat it they develop the typical ironic and sentimental scepticism which can often cut short their enthusiasm.
This is something for the Broadcasting Commission of Ireland to, pardon the pun, get their teeth into.
Pasta is political and must therefore, under their policy, not be advertised on commercial radio.
A professional person, be it doctor, lawyer, architect, engineer or quantity surveyor is not an insurer. In short he/she does not assume a risk for the client.
If the client wants that outcome, or relationship, the client should pay a premium to an insurance company, say, and await the future with equanimity.
What does a professional person do for a client, therefore?
In Eckersley v Binnie Partners (1988) 18 Con LR 1, Bingham LJ set it out as follows:
… a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should be alert to the hazards and risks inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members would bring but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.
Many risks are not insurable against by the client, but one of the risks a client should not have to insure against is the negligence of, say a construction professional. Indeed, to do so may be a bad idea; it implies that, as between them, the client is bearing the risk. In addition, if the client and the professional are the named beneficiaries of the policy, the client will no longer have a right of action against the professional (Petrofina (UK) Ltd. v Magnaload Ltd. [1984] QB 127)
NOTE: UK case law is of significant persuasive value in Ireland but is not, of course, conclusive on any legal question here.
NOTE: Bingham L. J. seemingly failed to recognise that professionals can be female.
