179 / 338
he had done. On the evidence he was satisfied
that in no way should Dr. R be regarded as guilty
of professional negligence as distinct from having
made a pardonably erroneous diagnosis.
Willmer, L.J., also for allowing the appeal, said
that the material question was whether Dr. R,
when he sent the patient home, ought to have
appreciated that it was so vitally important to inform
Dr. M of the cutting of the deep fascia, and to have
contemplated
the possibility
that without
that
information the latter was likely to be misled. That
question must be answered in the light of the situation
as it presented itself to Dr. R at the same time. In the
light of everything that was now known it would
have been better if he had sent a letter to Dr. M,
but that was not the kind of precaution which in
practice was regularly adopted between general
practitioners. If Dr. R was to be held negligent for
not having taken sufficient precautions to guard
against the possible risk of penetration, why was
not Dr. M in like case ? The fact was that Dr. M's
action was to a large extent conditioned by an
unfortunate misapprehension as to the nature of the
hospital and the status of Dr. R. That was something
for which Dr. R could not be blamed and which he
could not be expected to have foreseen.
The
finding of negligence could not be supported on
the evidence. Appeal allowed.
(Chapman
v.
Rix—103 S.J., 940.—27 November,
I 959)-
An ordinary witness is qualified to give evidence as to
drunkenness.
A complaint was brought against the defendant
under section 30 of the Road Traffic Act; 1933,
which provides that for the purposes of the section,
a person shall be deemed to have been drunk while
driving or attempting to drive a mechanically
propelled vehicle, if the Court is satisfied, that by
reason of the consumption by him of intoxicating
liquor or of drugs, such a person is incapable of
exercising effective control over
the vehicle in
motion. The incident occurred in March, 1957 in
Morehampton Road. A Guard purported to give
an opinion as to the condition of the defendant,
i.e., that he was not capable of driving at the time.
The defendant's solicitor objected and on 26th April,
1957 District Justice Farrell stated a consultative
case for the opinion of the High Court as to whether
evidence by a Guard of his opinion that the defendant
driver, by reason of his being drunk, was unfit to
drive a mechanically propelled vehicle could be given.
Davitt P. answered the question in the affirmative
on the 15th January, 1958, but referred it to the
Supreme Court on a question of law. The Supreme
Court (Lavery and O'Daly J.J., Kingsmill-Moore J.
dissenting) having heard arguments in July, 1958,
delivered judgment on 29th June, 1959 and affirmed
Davitt P. Kingsmill-Moore J., dissenting, held that
drunkenness was a vague term to indicate the various
phases of insobriety.
It is more satisfactory to get
the witness to describe the appearance, behaviour,
movements, reactions and utterances of the person
alleged to be drunk and leave it to the Justice to
draw his own conclusions. Lavery J. adopted the
judgment of Davitt P., who held that evidence as to
drunkenness or sobriety need not necessarily be that
of a doctor or similar witness, but that any ordinary
witness would be qualified to give evidence on such
matters for it would be impossible to administer
the criminal code if the fact of drunkenness could
only be established by an expert witness. O'Daly J.
stated that the offence under section 30 of the Road
Traffic Act could be proved simply if the defendant
had consumed intoxicating liquor, and that, by
reason thereof, he was incapable of exercising control
over the mechanically propelled vehicle. An expert
need not diagnose drunkenness, for the clear purpose
of section 30 is to safeguard the public against the
drunken driver. Accordingly it is compatible for
any witness, apart from a Guard, to give his opinion
as to the state of drunkenness of an alleged driver.
(The State (Ruddy)
v.
Kenny)—unreported.
OBITUARY
MR. CECIL H. EXHAM, Solicitor, died on the 24th
December, 1959, at his residence, 5 Aha Terrace,
Monkstown, Co. Cork.
Mr. Exham served his apprenticeship with the
late Mr. Alfred H. Exham, Cork, was admitted in
Hilary Sittings, 1913 and practised as senior partner
in the firm .of Messrs. Thomas Exham & Sons,
10 South Mall, Cork.
MR. THOMAS O'NEILL, Solicitor, died on the 28th
December, 1959, at his residence, Craobh Ruadh,
Castleisland, Co. Kerry.
Mr. O'Neill served his apprenticeship with the
late Mr. Richard C. Meredith, Castleisland, was
admitted in Trinity Sittings, 1922, and practised
as partner in the firm of Messrs. O'Neill and Twomey,
Castleisland, Co. Kerry.
MR. JOHN D. T. RODNEY, Solicitor, died on the
28th December, 1959, at his residence, 12 Prince
Edward Terrace, Blackrock, Co. Dublin.
Mr. Rooney served his apprenticeship with the