558 / 736
from
the Divisional Court's dismissal of their
appeal against conviction for having indicated at
their Northwich shop that they were offering to
supply washing powder at a price less than that at
which it was in fact offered, contrary to Section
11 (2) of the Trade Descriptions Act, 1968.
[Tesco Supermarkets Ltd. v Nettress;
The
Times,
21 July 1970.]
Defendant motorist who knocks down and kills or
injures pedestrians as a result of a black-out is not
guilty of negligence
The plaintiff was standing on the right hand
footpath on an afternoon in June 1965 in Exche
quer Street, Dublin, talking to a friend, when a
car, driven by the defendant, mounted the foot
path, drove the two men through the plate-glass
windows of a shop, seriously injured the plaintiff,
and killed his friend. The plaintiff, in the action
before Butler J. and a jury, did not call any wit
nesses, relying on the principle of
res ipsa loquitur.
The jury awarded the plaintiff £7,200 damages
in May 1969. The defendant appealed.
Held by a majority of the Supreme Court (Budd,
Fitzgerald and McLoughlin J.J.; 6 Dalaigh C.J.
and Walsh J. dissenting) that the appeal should
be allowed on the following grounds.
(1) The evidence of the witnesses clearly estab
lishes that the defendant's car, after nearly stop
ping at Dame Court, went diagonally across the
road with
the engine accelerating and finally
crashing into Nicholl's window. There was no
emergency created by any traffic or pedestrian
problem for this wholly abnormal occurrence. The
defendant was slumped over the wheel, and this
condition is consistent with a sudden attack. There
was no evidence to contradict this.
(2) The defendant, although sixty-eight years of
age, had not suffered from blackouts or fainting
fits before. The medical evidence established that
the defendant's collapse was caused by some dis
turbance of the arteries associated with high blood
pressure which caused the cutting off of the blood
supply to the brain resulting in unconsciousnesj.
This
incapacity could not have occurred
in
George's Street. The attack was sudden and dis
abling, and such as to leave the defendant with
no capacity for considered action.
[Kelly v Gilmore; Supreme Court; Unreported;
28 July 1970.]
Note—
This decision has given rise
to much
criticism on the ground that a plaintiff may be
killed, or suffer severe injuries in similar circum
stances and be unable to recover anything.
PLANNING
Purposes for which permitted structures to be
erected are to be used may be implied in planning
permission
Plaintiffs in June 1969 acquired an option to
purchase from James McGuirk for an
initial
deposit of £2,000 about threequarters or an acre
at Newtownpark, Blackrock,
to cost altogether
£20,000. There was no reference to planning
permission, but an advertisement to that effect
appeared on June 28 and an application for
planning permission was received by defendant
county council on July 2. The application, though
signed by McGurk, was drafted by an engineer
employed by plaintiffs; it was accompanied by
three plans. The council required further parti
culars of drainage. Finally on 29 August 1969 the
council's permission for the proposed replacement
of existing concrete plant, subject to the condition
that the Minister was to decide whether the pro
posed use by the plaintiffs was exempted develop
ment within the Local Government (Town Plan
ning) Act, 1963, was granted. Permission to comply
with trie plans was given by the council on 9
October 1969. By agreement of October 24 the
plaintiffs agreed to purchase the land from Mr.
McGurk and by a conveyance of December 12 the
lands were conveyed to the plaintiff.
On 20 January 1970 the Planning Department
informed the plaintiff that the operations they had
in mind for the site constituted a change of devel
opment, which had to be decided by the Minister
under Section 5 of the Act and were duly so
notified by the Minister. The plaintiffs thereupon
issued proceedings on February 12, claiming a
declaration that the permission of 9 October 1969
was a valid and unalterable permission, which the
council could not derogate from. There was no
suggestion, however, that the plaintiffs have in
any way infringed the relevant permission. Much
evidence was given to the question as to whether
the use which the plaintiffs intended to make of
the premises amounted to a material change of
use.
The question to be answered was :
Did the
grant of permission specify the purposes for which
the structure thereby permitted
to be erected
might be used? The plans submitted clearly
showed a ready-mix concrete plant: clearly then,
an inspection of the plans lodged should have
disclosed to the county council that the new struc
tures were intended to be used for the production
of ready-mix concrete, and not as formerly for
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