326 / 346
GAZETTE
JULY/AUGUST
at the meeting and voted in the absence
of the Defendant.
4. Failure to pay expenses of Mr.
Moneley for a trip to Cork, of which
the Defendant did not receive proper
notice. The complaint was made in this
instance by Mr. Moneley who was
affected by the outcome and should not
have been allowed to remain at the
meeting after the expulsion of the
Defendant. The procedure followed
did not accord to the Defendant
natural justice and his purported
dismissal was therefore null and void,
and consequently the Defendant
retained and had at all materials times
retained his office. The Appeal was
therefore dismissed.
The National Engineering and Electrical
Trade Union, Eustace Connelly, Joseph
Carter and Sylvester Sheridan v. Kevin M.
P. McCormell.
Supreme Court Nem. Diss,
(per Griffin J) 17 December 1982 —
unreported.
Michael J. Kennedy
TORT
Duty of Care —Damage on roadway
due to works in progress by con-
tractor engaged by property
developers — Liability of Corpora-
tion as Planning Authority and
Highway Authority.
The Plaintiff an elderly lady was
crossing the road in the company of her
husband at Marine Road, Dun Laoghaire,
from Dun Laoghaire church towards the
new shopping centre. As she neared the
side to which she was proceeding she
tripped and fell sustaining injury. Her fall
was caused by a difference in road levels of
, approximately two inches along a line
where a new lay-by for buses was being
constructed. The roadway which was all
tarmacadam appeared uniform and no
warning of the difference in level was
given.
Construction of the lay-by was
'carried out by a firm of contractors who
were engaged by a development company
who in turn had obtained planning per-
mission from the Defendants for the
development of the site in which the
shopping centre now stood and which
planning permission was granted subject
to a condition that a bus lay-by be
provided by the developers.
The layout of this bus lay-by (which
involved considerable interference with
the roadway) was agreed with the
Defendant.
The High Court was satisfied that
because the developers of the shopping
centre obtained planning permission for
the development including construction
of a bus lay-by, the layout of which had in
advance been agreed with the Defendants
and because the Defendants were aware
that work was being carried out by the
contractors engaged by the developers the
work being carried out had been
"authorised" by the Defendants and that
they were as such liable for any negligence
of the contractors in carrying out the work
and in particular in failing to warn of or
guard against the danger on the highway
on the occasion of the accident and the
Court ruled accordingly.
The Defendants rested their appeal on
two submissions:—
Firstly that the case ought to have been
withdrawn from the jury because there
was no evidence that the interference with
the roadway was authorised or permitted
by them and secondly that the case ought
to have been withdrawn from the jury
because there was no evidence of
negligence.
Held (per O'Higgins C. J. Hederman
J. concurring and Griffin J. dissenting)
that on the facts surrounding the circum-
stances of the Plaintiffs accident it was
proper that the case should have gone to
the jury on the issue of negligence and the
jury having found negligence, such finding
could not be disturbed and so the grounds
of the Defendants appeal on the evidence
of negligence failed.
On the Defendants other ground of
appeal it was held further that from the
facts surrounding the obtaining of
planning permission by the developers,
the condition of provision of a bus lay-by
by the Planning Authority, the construc-
tion of the bus lay-by by the contractors
involving considerable interference with
the roadway, the agreement of the layout
of the bus lay-by with the Defendants and
the fact that it was known to the Defen-
dants that such works were being carried
out, it could be fairly inferred that the pro-
vision of a bus lay-by had been required
by the Defendants as Planning Authority.
It could be inferred further that the work
was carried out by the contractors on
behalf of the developers and with the
knowledge and approval of the Defen-
dants as Planning Authority.
The Defendants contention that as
Highway Authority under the Local
Government Act of 1925 they are not to be
fixed with knowledge or made liable in
respect of any licence or approval which
they might or may have given as Planning
Authority was rejected and it was held that
the Defendants must be held to have
known and to have approved of the work
undertaken by the contractors.
It was held further that even if the work
was authorised originally by the Defen-
dants solely as Planning Authority this in
itself did not mean that as Highway
Authority they could not be regarded as
having knowledge thereof. Whatever was
t done was done clearly with the knowledge
of the Defendants and theyhad a responsi-
bility to look to the safety of those using
the roadway.
It was held by Griffin J. in allowing the
appeal that the work complained of was
not carried out nor was the danger
created by the Defendants. It is well
settled that the highway authority are not
liable to the user of a highway for injuries
suffered or caused by want of repair (non-
feasance) but are liable in damages for
injuries suffered by such use if they or
their servants or those for whose acts they
are responsible have been negligent in
doing repairs to or in interfering with the
highway (misfeasance). In the instant case
the Plaintiff sought to expand the liability
of a highway authority to include respon-
sibility for the acts of a contractor engaged
by a developer in doing work for which the
latter had obtained planning permission
and to equate this liability with that of the
authority for acts of a contractor engaged
by them which — in his view was
warranted neither by principle nor
authority. All cases cited in the High
Court were cases where work was carried
out by the highway authority. Counsel
were unable to refer to nor was Griffin J.
able to find any case in which liability
attached to a highway authority by reason
of the granting of planning permission for
the work being carried out and he
accordingly allowed the appeal.
Weir v. Corporation of Dun Laoghaire.
Supreme Court (per O'Higgins C. J.,
Hederman J. concurring and Griffin J.
Dissenting) 20 December 1982 —
unreported.
Maurice Leahy
COMPANY LAW
Companies — Winding up by Court
— Application for Directions —
Whether Capital Gains Tax an
'Expense' or a 'Necessary Disburse-
ment' under Order 77, Rule 129, Rules
of the Superior Court (S.I. No. 72 of
1962).
In the course of the liquidation ol Win
Hool McArdle Limited the Respondent,
who was Official Liquidator of that
Company, sold certain properties which
were subject to incumbrances. A liability
was thereby incurred for corporation tax
on chargeable gains accrued on that sale
under the Capital Gains Tax Act 1976.
The Respondent thereupon brought a
Motion in the High Court before Carroll
J., seeking certain directions which
included the following: —
(1) Whether or not capital gains tax
payable in relation to the sale is an
"expense" incurred in the realisation
of an asset within the meaning Rule
129 of Order 77 of the Rules of the
Superior Courts which relate to
winding-up.
(2) If it is, can it be deducted from the
proceeds of sale payable to the
mortgagees?
(3) Is the tax "a necessary disburse-
ment" of the liquidator under the
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