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GAZETTE
MARCH 1978
BOOK REVIEWS
CRIMINAL INJURIES
KENNEDY, A. (Barrister-at-Law), and McWILLIAM,
H. R. (Judge of the High Court):
The Law of
Compensationfor Criminal Injuries in the Republic of
Ireland.
Published by Criminal Injuries Publications,
Westmanstown Lodge, Luttrellstown Castle, Clonsilla,
Co. Dublin. 1977. Price £7.50 (postage 20p).
In this book the law relating to compensation for criminal
injuries is expounded in twelve short chapters. The
contents are brief, clear and accurate and all the relevant
cases are cited. The printing, layout and general presen-
tation are excellent and there is a good index.
The authors have succeeded in mentioning all the
important general principles and a great deal of associ-
ated detail and minutiae. It is not widely known that a
rate to pay compensation for criminal injuries may be
raised at any time under Section 20 of the Damage to
Property (Compensation) Act, 1923, but this recondite
provision is duly noted in its proper place. The treatment
of liability for damage caused by children, in about
twenty lines on page 31, is admirable — succinct,
accurate and securely related to the numerous authorities
cited.
It would have been helpful to cite
Hollington v
Hewthorn & Company Limited
(1943) 2 All E.R. 35, to
illustrate the inadmissibility of the conviction of the
culprit as evidence of malice in a criminal injuries appli-
cation but the appropriate Irish authorities are duly
noticed.
There is a chapter on compensation for personal
injuries and an account of the ex gratia scheme for
compensation introduced in February 1974. Specimen
forms of application and appeal with extracts from the
relevant Rules of Court and Statutory provisions are
included. This book can be recommended as a compre-
hensive and reliable guide to the whole field of criminal
injuries and a worthy successor of the invaluable
Moloney and Lee.
William Dundon
NEGLIGENCE
Charlesworth on Negligence.
6th edition by R. A. Percy.
London: Sweet & Maxwell, 1977. Hardback, £25.00.
Charlesworth on Negligence
has for many years occupied
a prominent position on the bookshelves of most Irish
lawyers, and the sixth edition published at the end of
1977, will be no exception.
In his Preface, the Editor explains that he has
attempted to bring the law up to date as at 1st September
1977. The lengthy Tables of Statutes and of Statutory
Regulations, however, will remind Irish practitioners that
much of the law stated in the text has no application in
Ireland or has merely persuasive value. Nevertheless, the
many new cases to which reference is made will be of
interest to Irish lawyers and their possible effect on
decisions in our own courts will be watched with interest.
Meanwhile, I would propose briefly to refer to a few of
them.
Perhaps the most interesting is that of
British Railways
Board v Herrington
(1972) All E.R. 749, in which the
House of Lords found the Board negligent and liable to a
child trespasser aged six who strayed onto railway lines
and fell on to the live electric rail and was severely
burned, the boundary fence having been allowed to
become and remain in a dilapidated condition despite the
fact that the Board knew children were in the habit of
climbing through a gap to take a shortcut to a meadow to
play. It was held greater care needs to be taken in respect
of a child than an adult trespasser. The degree of severity
of the danger likely to be met by a trespasser is an impor-
tant consideration in each case. The test is the duty of
ordinary humanity. At the same time, the non-liability of
the occupier for damage flowing from steps taken to keep
out trespassers where these are of a deterrent (as distinct
from a retributive) nature, is not likely to change as a
result of this decision. This case would seem to further
reduce the difference between the duty by the occupier to
a lawful visitor on the one hand and to a trespasser on the
other.
In the case of
Rose
v
Plenty
(1976) 1 W.L.R. 141, a
milkman, contrary to express instructions forbidding him
either to give lifts to children or employ them to assist
him, did so. As a result of his negligent driving, the infant
plaintiff, aged thirteen, fell from the milk-float and
received personal injuries for which the milkman's
employer was held vicariously liable. The conduct prohi-
bited was held to have been for the purposes of the
employers, thereby distinguishing it from the earlier cases
of
Twine v Bean's Express Co.
(1946) 175 L.T. 131, and
Conway v George Wimpey & Co. Ltd.
(1951) 2 All E.R.
363, where the employers were held not liable.
The Court of Appeal in
Dutton v Bognor Regis U.D.C.
(1972) 1 All E.R. 462, had held the local authority
(which was neither the builder nor the vendor) liable for
the negligence of its building inspector who negligently
carried out inspections of a dwellinghouse under the
course of construction which later turned out to be a seri-
ously defective building. Inter alia, it was held that the
plaintiff came within the definition of the person described
in
Donoghue v Stevenson
as a person so closely and
directly affected by the surveyor's act that he ought to
have had her in mind as likely to be injured if he made his
inspection negligently. This decision has now been
approved of by the House of Lords in
Anns v Merton
London Borough Council
(1977) 2 W.L.R. 1024.
In the case of
Esso Petroleum Co. Ltd. v. Marsdon
(1976) 2 All E.R. 5, it was held that a mis-statement
made carelessly by the plaintiffs to the defendant about
the through-put potential of a new petrol-filling station
during pre-contract negotiations which resulted in the
defendant taking a tenancy of the station from the plain-
tiffs to his disadvantage, was not only a negligent mis-
representation but also a collateral warranty and the
plaintiffs were liable both in tort and for breach of
warranty on the defendant's counterclaim. This decision
overruled the earlier decision in
Mutual Life and Citizens
Assurance Co. Ltd. v Evatt,
the minority judgements in
that case being now preferred.
The decisions finding contributory negligence on the
part of road users who fail to wear safety devices or appli-
ances which would probably have reduced the nature and
degree of severity of their injuries are well known. Less
common is the case of the passenger who rides in a motor
vehicle well knowing the driver probably had consumed
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