The Gazette 1971

COND I T I ONAL ORDER FOR CERT I ORARI

GRANTED F OR N OT STAT I NG OF FENCE

WAS C OMM I T T ED ON OPEN ROAD

Application for a conditional order of

certiorari

respect of two conditions on foot of motoring offences

alleged at Achill in May 1970.

The first condition, under Section 109 of the Ro ad

Traffic Act, 1961, makes it an offence for a person

driving a vehicle in a public place not to stop the

vehicle at the request of a Garda. The offence entered

in the Justice's Minute Book does not state that the

offences were committed in a public place, and it was

contended that the conviction was bad on its face. This

contention is valid.

The second conviction, under Section 13 of the Road

Act, 1970, prohibits the use of any vehicle on public

roads in respect of which a licence under the Finance

Act, 1970, is not in force. The Finance Excise Duties

(Vehicles) Act, 1952, is substituted for the Act of 1921,

and Section 1 of the 1952 Act also speaks of user on

public roads. There was also a failure to allege that the

offence was committed on a public road and therefore

the conviction is bad on its face.

Order of O ' Ke e f fe P. refusing conditional order of

certiorari

reversed. Conditional order granted.

[State (Carthew) v District Justice Mc Ga h o n; full

Supreme Court, Judgment of the Chief Justice (con-

curred in by the other members of the C o u r t ); 13th

July 1971.]

On appeal by the plaintiff to the Court of Appeal

(Davies, Edmund Davies and Buckley

L.JJ

.) :

Held,

allowing the appeal, that, even though the traffic lights

at the road junction were green in his favour, the

defendant was under a duty to traffic already lawfully

in the junction prior to the change of lights, which he

could reasonably foresee might still be crossing, not to

enter the junction until it was safe to do so, and,

therefore, he was negligent; and that since the defendant

had not established that even if the plaintiff had seen the

defendant, he could have taken any action to avoid the

'accident, the p'aintiff was not guilty of contributory

negligence, and, accordingly, the defendant was wholly

to blame for the accident.

Decision of Wrangham J. varied. £268.50 substituted

for £96.75 in High Court.

[Radburn v Kemp; C.A. ( 1971 ); 1 W. L . R. 1502.]

Waterford

Law Society

The President of the Waterford Law Society is Mr.

Matthew J. Lardner, Cathedral Square, Waterford, and

the Secretary is Mr. Jeremiah Halley, 5 George's Street,

Waterford.

CONTR I BUTORY NEGL I GENCE AT CROSS-

ROADS—DUTY BY DEFENDANT T O G I VE

WAY T O ENSURE SAFETY

Appeal from Wrangham J. at Nottingham Assizes. The

plaintiff, Leslie Jack Radburn, claimed damages on the

ground of negligence against the defendant, Arthur

William Kemp, for personal injuries which he had sus-

tained as the result of a road accident in a five-way

junction in Derby on 8th October 1968 when there was

a collision between the plaintiff's pedal cycle and the

defendant's motor car. The defendant made a payment

in before trial of £ 3 43 9s in satisfaction of the plain-

tiff's claim. Special damages were agreed at £93.50.

Wrangham J. held that both parties were equally to

blame for the accident and assessed general damages at

£100. He, accordingly, awarded the plaintiff £96.75.

The plaintiff appealed both on contributory negli-

gence and on quantum on the grounds : (1) that the

judge was wrong to find him guilty of contributory

negligence; (2) that the plaintiff had in the circujn-

stances acted reasonably and could not have avoided

the accident by any action on his part, and (3) that the

amount of general damages awarded was too low and

inadequate.

The plaintiff pedal cyclist entered a five-way road

junction when the traffic lights were at green in his

favour. He had crossed two-thirds of the junction when

the traffic lights changed. Th ey were then at green in

favour of the defendant who drove his car into the

junction and collided with the plaintiff who sustained

personal injuries. Neither of the parties saw the other

before the accident, but, even if the plaintiff had

stopped, the collision might still have occurred.

Wrangham J. held that both parties were equally to

blame for the accident in failing to keep a proper

look out.

160

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