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vailing in this case the jury were not justified in hold-
ing that the plaintiff did not contribute to the
accident by want of reasonable care, as he had
culpably failed to read the warning notices. In his
view, the plaintiff was guilty of contributory
negligence.
As regards the damages, the jury were clearly
entitled to award the plaintiff substantial compensa-
tion for the physical and psychological trauma he
suffered. As the accident ultimately resulted in the
amputation of both arms, a fact so rare as to be
almost unique, there is no proper yardstick to
measure the correctness of the jury's award. Despite
his suffering, the plaintiff is not in as bad a condition
as a paraplegic who will have to live out his Hfe help-
lessly in a whcelchair. Consequently the sum of
£40,000 for general damages is unreasonable. Henchy
J. consequently held that "there should be a new trial
on the same issues as those considered by the jury
in the trial in the High Court".
Griffin J. said that, by reason of the harshness of
the Addie rule, the Courts found means to circum-
vent it. Child trespassers were frequently converted
into licensees. Dixon C.J. in Commissioner for Rail-
Ways for New South Wales v. Cardie has stated the
modern principle thus: "In principlé a duty of care
should rest on a man to safeguard others from a grave
danger of serious harm if knowingly he has created
the danger or is responsible for its continued
existence and is aware of the likelihood of others
coming into proximity of the danger and has the
means of preventing it or of averting the danger or of
bringing it to their knowledge".
In Vidcan v. British Transport Commission—(1963)
2Q.B. 650 — the Court of Appeal decided that the
duty of an occupier of land towards trespassers was
the duty to take care not to injure trespassers whose
presence was foreseeable. In Herrington v. British
Railways Board — (1972) A.C. 877 — Lord Pearson
said that Addie's case had been rendered obsolete by
changes in physical and social conditions. There is
now less playing space for children and a greater
temptation to trespass. There are also more dangers
by reason of the advance of technology. Griffin J.
agreed, and said that Addie no longer could reason-
ably have foreseen that child trespassers were likely
to climb fcnces at their sub-station. There was
enough evidence for the jury to find that there was
negligence by the defendants, but the jury should
have also found contributory negligence on the part
°f the plaintiffs. As regards damages, the plaintiff
sustained severe burns to both arms and the left side
°f his chest; it was eventually necessary to amputate
both arms; he might get employment as a book-
keeper. As the serious injuries of the plaintiff do not
compare with those of a paraplegic, the £40,000
awarded for general damages is excessive. Accordingly
Griffin J„ with whom Fitzgerald C.J. concurred, would
direct a re-trial on all isues.The appeal was allowed.
(McNamara v. Electricity Supply Board — Full
Supreme Court — Separate judgments bv Walsh,
Hench and Griffin JJ.—unreported—30 July, 1974).
Application that questions of law be tried on a
preliminary issue before trial refused.
This was an application under Order 34, Rule 2,
by the defendant Minister that certain questions ol
law be tried before any evidence is given in the
action. In order that Order 34, Rule 2, should come
into operation, the following conditions should exist:
(1) The Court in any action may require a question
of law for its opinion normally to be "special
case".
(2) A question of law must be identified amongst the
questions in issue.
(3) This question of law should be of such impor-
tance that it must be decided before any evidence
is given.
(4) If special facts have to be provided, or if facts
are in dispute, the rule does not apply.
(5) This procedure is very rarely availed of.
Five specific questions relating to the construction
of the Minerals Development Act, 1940, has been
pressed by the defendant Minister for preliminary
decision.' Kenny J. refused the application, and his
decision was affirmed unanimously by the Supreme
Court.
(Tara Exploration and Mining Co. v Minister for
Industry & Commerce — Full Supreme Court per
O'Higgins C.J.—unreported—4 February, 1975.)
Plaintiff's injunction to restrain defendant from
dumping manure on part of his lands dismissed.
The plaintiff claims to be the owner of lands at
Forth Mountain, Co. Wexford, containing less than
two acres. He sues for an injunction to restrain the
defendant from dumping manure on the said lands.
The defendant denies that the plaintiff is owner of
the lands, and counterclaims for a declaration
that he has acquired an easement over them, in order
to spread lime and manure. The lands in question
are not arable and are common lands. The plaintiff
obtained a conveyance in fee simple to the lands in
June, 1973, but the vendor had been a squatter who
had no documents of title. The vendor was an un-
satisfactory witness who took little interest in these
lands and never went there. The lands owned by the
defendant were duly conveyed to him in 1966. Satis-
factory evidence established that the defendant's
predecessors in title had already deposited large
quantities of manure on the plaintiff's land, particu-
larly as the defendant's farm covered 65 acres, and
the defendant continued to do so. The area used for
the dumping of manure was half an acre, and an ease-
ment undoubtedly existed for this purpose alone. The
defendant is entitled to £60 for loss of manure. The
plaintiff's claim for an injunction is dismissed. The
defendant's counterclaim for a declaration that he
has acquired an easement over the specific half acre is
allowed.
(Redmond v. Hayes—Kenny J.,—unreported—7th
October, 1974).