The Gazette 1971

spurious votes, and votes of unqualified persons, which may lead to an unqualified return. The American cases indicate that the expressions "secret ballot" and "ballot" as used in the State Consti- tutions refer to a secret method of voting, as opposed to the former open or viva voce voting: they merely emphasise that the secrecy must continue to be pro- tected even after the actual casting of the vote. [McMahon v Attorney-General; Supreme Court; 4th October 1971.]

with the greatest care. While the wearing of a crash helmet would not have prevented or diminished the risk of the collision occurring it would probably have reduced the gravity of his head injuries. Thus while the defendant was solely responsible for the accident the plaintiff's negligence in failing to wear a crash halmet was relevant to the additional injuries and damage which would not have occurred if a crash helmet had been worn. Accordingly the plaintiff's responsibility was 15 per cent of the whole. [O'Connell v Jackson; 115 S.J. 742] CONDITIONAL ORDER FOR MANDAMUS AGAINST CO. COUNCIL MADE ABSOLUTE Application to make absolute a conditional order of mandamus granted by the Supreme Court on 7th Nov. 1970 requiring the respondent County Council to con- sider and determine in accordance with law an appli- cation made to them on 6th February 1970 for their consent to the transfer from the prosecutrix to one James Conway of the plot of ground comprised in Folio 50107 County Cork, where the prosecutrix is named as registered full owner. The prosecutrix is the tenant purchaser of a labourer's cottage and plot of land. By agreement dated 15th April 1969 she agreed to sell to James Conway for £590 the said plot of ground, excluding the labourer's cot- tage. This sale was to be completed after the approval by the County Council of the assignment to the pur- chaser within fourteen days. The draft transfer was sent to the County Council for approval with a local registry map on 6th February 1970 : this should be regarded as a request for consent for sub-division. The County Council, in reply purported to specify the exact location of this plot. In reply, the solicitor for the prosecutrix wished to get an assurance that Section 98 of the Housing Act, 1966, had been complied with. The soli- citor to the County Council, instead of replying cour- teously to this request curtly stated that he would accept service of any proceedings. The unreported Supreme Court decision McGeough v Louth County Council, 1st March 1956, established that a tenant purchaser of a labourer's cottage has a right to a fair and unbiased consideration of any appli- cation for consent to sell, and a consent should not be refused unless the sale would in some way frustrate the policy of the Act. Butler J., who had not been made aware of this deci- sion, refused a conditional order of mandamus against the County Council, but the Supreme Court, following McGeough's decision, held that this conditional order should be granted. Section 98 of the Housing Act, 1966, deals with the condition under which the housing auth- ority may grant consent, and in particular the housing authority must apportion the annuity in the case of an application for sub-division was too low, as he had obtained a valuation for £1,400 : he tried to insist on a larger price. Under Section 99 of the Housing Act, 1966, the annuity could be redeemed with the consent of the County Council; the redemption price should not have exceeded £13, yet the County Council endeavoured to obtain hundreds of pounds. It is obvious that the Co. Council did not consider the request in accordance with law, but introduced into the matter extraneous consid- erations. The application to make the conditional order of mandamus absolute was accordingly granted. [The State (Meade) v Cork County Council; O'Keeffe P.; unreported; May 1971.] 159

INJUNCTION AGAINST BUILDING OPERATIONS

(An Application by Plaintiff that he had Acquired Plot by Adverse Possession, Granted)

Application for an injunction restraining the defen- dants from carrying out building operations at the rere of Kennelsfort Road, Palmerstown, Co. Dublin, and an application that plaintiff had acquired by adverse possession under the Statute of Limitations a title to the plot of ground at the rere of the premises. An interim injunction had been granted on 8th December 1970. By divers assignments, Irish Life Assurance had ultimately acquired the lands compriesed in Folio 539, Co. Dublin. When the plaintiff's house was built, there was a roadway at the rere of it giving access to the garage. Beside this roadway was a plot of ground which was not built on. The plaintiff understood, when his house was built, that his garden would include this plot, but it was now separated from it by a roadway. The plain- tiff nevertheless used this plot as if it were part of his garden. Since November 1955 the plaintiff had used this plot without paying rent. In October 1970 Irish Life assigned to the defendants the plot of ground con- cerned. There was a correspondence between the plain- tiff's solicitor and the defendant's solicitor in Nov. 1970 and it finally transpired that the defendants, claiming they were the owners of the fee simple, stated that they proposed to enter upon the lands on 7th December 1970. On that date the defendants had no title to the lands, as the registration of their freehold was not completed until 17th December 1970. The defendants took a paper title from Irish Life to a leasehold interest for which they had no claim. Their acquisition of the freehold was subsequent to their purported acquisition of the leasehold interest. It seems clear that, unless the fee simple owners become entitled to the whole of the lands comprised in the lease in fee simple, and also to the lessee's interest in the whole of the same land, no mer- ger can take place. Here Irish Life could not assign to the defendants effectively a leasehold interest in lands, the title to which they themselves had lost. The plaintiff is consequently entitled to possession of the said plot. [Perry v Woodfarm Homse Ltd.; O'Keeffe P.; unre- ported; 30th July 1971.] NEGLIGENCE/CONTRIBUTORY NEGLIGENCE The plaintiff while driving a moped collided with the defendant's motor car which emerged from a minor road into a major road. The plaintiff was not wearing a crash helmet. The Court of Appeal held that the plaintiff ought reasonably to have foreseen the possibility of his being involved in an accident even though he himself drove