The Gazette 1991

GAZETTE

JULY/AUGUST 1991

The plaintiff averred that he was not an

alcoholic, that the defendant did not conduct

a proper examination of him in the Garda

station and that a second opinion should

have been obtained by him. In the High

Court, Mackenzie J granted leave under

s.260. HELD by the Supreme Court (Finlay

CJ, Griffin, Hederman, McCarthy and

O'Flaherty JJ) allowing the defendant's

appeal: (1) the requirement in s.260 of the

1945 Act that the Court must be satisfied

that there are substantial grounds for

contending that there was bad faith or want

of reasonable care is a restriction on the

constitutional right of access to the courts

under Article '40.3, and such restriction must

be stricly construed in the sense that the

restriction must not be availed of except

where it is essential to do so.

In re. fí. Ltd.

[1989] ILRM 757; [1989] IR 126 applied; (2)

the restriction on the right of access to the

courts in s.260 was reasonable and it was

not necessary for the plaintiff to establish the

grounds for proceeding on any standard

greater than that in ordinary civil proceedings,

but nor was it sufficient that the plaintiff

merely bring forward a prima facie case since

this would not be consistent with the re-

quirement to serve notice under s.260 on any

intended defendant; Dicta in

O'Dowd

-v-

North WesternHealth Board

[1983] ILRM 186

discussed; (3) the plaintiff had failed to bring

forward evidence whjch satisfied the Court

of substantial grounds of want of reasonable

care, since a mis-diagnosis did not necessarily

signify want of reasonable care, nor was a

second opinion required, and in the circum-

stances leave under s.260 of the 1945 Act

would not be granted.

Per curiam:

the

plaintiff's brief affidavit, in which he averred

that the facts in his notice of motion were

correct, was not in the appropriate form.

1UINN AMD O M * MULWOMI I

CORPORATION SUPREME COURT 27 I

lOVEMBER 1990

ELECTIONS -

REGISTRATION

STUDENTS IN THIRD LEVEL COLLEGE -

WHETHER ORDINARILY RESIDENT IN THE

CONSTITUENCY IN WHICH COLLEGE

SITUATED - STUDENTS REGISTERED IN

HOME CONSTITUENCY - WHETHER

REGISTRAR ENTITLED TO REFUSE

REGISTRATION FOR FEAR OF DOUBLE

EXERCISE OF VOTE - Registration of

Electoral and Juries Acts (Specification of

Dates) Regulations 1963, Art. 12 - Electoral

Act 1963, s.5 - Constitution, Article 16.1.4.

The appellants were students at the

Waterford Regional Technical College None

of the students' homes was in Waterford,

but for the academic year they resided

within the County Borough of Waterford.

They were all on the Register of Electors for

their 'home' constituency. They applied for

registration on the Register of Electors for

Waterford County Borough for 1988/1989.

The County Registrar refused their

application. This decision was upheld on

appeal to the Circuit Court on the grounds

that the students were not 'ordinarily

resident' in the Borough within the meaning

of s.5 of the 1963 Act, and that the Registrar

was entitled to take account of the risk of

double voting having regard to the fact that

the appellants were also registered to vote

in their home constituency. On case stated

HELD by the Supreme Court (Finlay CJ,

Hederman and McCarthy JJ): (1) the appel-

lants were 'ordinarily resident' in the

Waterford County Borough for at least the

period of the academic year, within the

meaning of 8.5 of the 1963 Act.

Fox -v- Stirk

and Bristol Electoral Registration Officer

[1970] 2 QB 463 discussed, tor curiam: the

appellants might also be ordinarily resident

in Waterford for the full calendar year, since

s.5(4) of the 1963 Act appeared to envisage

ordinary residence in more than one

constituency; (2) while the Registrar was

entitled under Art. 12 of the 1963

Regulations to require information in carrying

out his duties, he was restricted to matters

that lie within his constituency, and it was

irrelevant that registration might result in

double registration within a larger European

torliament constituency since Article 16.1.4

of the Constitution prohibited double voting

and not double registration.

SM I TH -V- CORAS IOMPAIR EIREANN

SUPREME COURT 29 NOVEMBER

1990

TORT - OCCUPIER'S LIABILITY -

FORESEEABILITY

INJURY

TRESPASSER - ACCESS TO LAND -

WHETHER ESTABLISHED THAT OCCUPIER

KNEW OF PATTERN OF ACCESS -

TRESPASSER CHASING OTHER PERSONS

ON RAILWAY LINE - WHETHER FORE-

SEEABLE - CONSIDERATION OF ENTIRE

CIRCUMSTANCES

The plaintiff, then aged 20, lost both legs

when in collision with a train on a railway

line owned by the defendant company. The

plaintiff had aean two youdwtiding háehorae

in a field neentie raflwpyfine, end when they

ran onto the ralwyfM he foflowed them.

The youlhs and the plaintiff gained access

which hedbean broken-down! and e-wmgh-

path which lad down to an embankment

toaaide the tine. The plaintiff stated that ha

ran 'flat out' after the youths along the side

the railway line, .ant that he feN and got

up a couple of times to continue the chase.

He also stated that he saw the train with

which he collided coming through a tunnel,

but did not actually remember the collision

itself. The plaintiff claimed damages arising

from the collision on the ground of negli-

gence Evidence was given at the trial of the

action that local people used the embank-

ment down which the plaintiff had run as

a short-cut to a local public house and other

shops on the far side of the line. The

defendant denied that a duty of care arose

in the case on the ground that the events

were not foreseeable The defendant did not

rest any argument on the plaintiff being a

trespasser. In the High Court, Egan J dis-

missed the plaintiff's claim at the conclusion

of the evidence for the plaintiff. On appeal

HELD by the Supreme Court (Finlay CJ,

Griffin, Hederman, McCarthy and O'Flaherty

JJ) dismissing the appeal: (1) the test of an

occupier's liability even in the case of an

intruder was whether what occurred was

reasonably foreseeable and in relation to a

person who was proximate to the occupier;

and the court must take account of the

entire circumstances surrounding the

incident under discussion, including the

nature of the danger involved, the age and

knowledge of the person likply to be injured,

the time and place of the incident and the

conduct of the person who came onto the

premises.

Purtill -v- Athlone UDC

[1968] IR

205 and

McNamara -v- ESB

[1975] IR 1

followed; (2) in the instant case there was no

evidence that the defendant knew that

persons used the railway as a short-cut; but

even if the defendant had been shown to

tolerate such crossings it was not reasonably

foreseeable that an adult would run along the

line in the circumstances of the instant case,

taking account in particular that the plaintiff

had fallen a couple of times and had seen the

train approaching but had not stepped aside

to avoid it; and accordingly the claim had

been properly dismissed.

Par curiam:

since

the defendant had not relied on the plaintiff's

position as trespasser, it was not necessary

for the Court to consider whether an occupier

owes different duties of care to different

categories of entrants and the question

should be reserved for another case

McDAID -V- SHEEHY SUPREME COURT

5 DECEMBER 1990

REVENUE - IMPOSITION OF DUTIES -

POWER TO IMPOSE DUTIES BY STATUTORY

ORDER - WHETHER SUBSEQUENT

CONFIRMATION BY ACT VAUDATES ORDER

- CONSTITUTION - CASE CAPABLE OF

DECISION WITHOUT NEED TO ADDRESS

CONSTITUTIONAL ISSUE - CONSTITU-

TIONAL ISSUE NOT ADDRESSED BY

SUPREME COURT ALTHOUGH DEALT WITH

IN HIGH COURT - Imposition of Duties Act

1957, s.1 - Imposition of Duties (No. 221)

(Excise Duties) Order 1975 — Finance Act

1976, s.46.

The applicant was convicted in the District

Court of the offence of keeping in his vehicle

oertain l i y t u m b o n oil changeable will) en

dutyion which a rebate of duty had

under the .1975Older, contrary

| to s.21 o l t h e Finance

Act

1939, as

erafia.hy

tfta 1975Order. The

had been upheld by the

reepondem Circuit Court judge. The 1975

i Order was mode oumuanttes.l of the 1957

Act. toy wh i ch the' government are

empowered t o enpoee cuetwne duties, by

statutory order, with or without limitations

'of such amount as they think proper on any

particular description of goods imported into

the State'. S.2 of the 1957 Act provides that

any such excise Order shall have effect only

until the end of the calendar year in which

it is made, unless it is confirmed by the Act

of the Oireachtas. The 1975 Order had been

confirmed by s.46 of the 1976 Act and the

applicant had been convicted in respect of

an offence alleged to have been committed

in 1984. The applicant sought judicial review

of his conviction. In the High Court ([1989]

ILRM 342) Blayney J held that the 1975

Order was invalid as an impermissible

delegation of the law-making power of the

Oireachtas under Article 15.2.1 of the

Constitution, but he declined to quash the

applicant's conviction on the basis that the

confirmation of the Order by the 1976 Act

could be interpreted as an intention to

validate the order without intending to

breach Article 15.2.1. On appeal HELD by

the Supreme Court (Finlay CJ, Griffin,

Hederman, McCarthy and O'Flaherty JJ)

dismissing the appeal: (1) the High Court

judge was correct in concluding that s.46

of the 1976 Act was a valid confirmation of

the 1975 Order and that the applicant's

conviction should therefore stand; (2) (Finlay

CJ, Griffin, Hederman and O'Flaherty JJ:

McCarthy J dissenting) the High Court judge

should not have dealt with the constitutional