The Gazette 1977

GAZETTE

APRIL 1977

habitable. Although expensive

furniture, carpets and equipment

were installed by the plaintiff, there is

no evidence that she tried to let the

premises. There is however no proper

basis under the rule in

Hadley

Baxendale

in which to award for

proper compensation for the long

delays to which the plaintiff has been

subjected. Accordingly a total sum of

£2,305 will be allowed, as well as the

declaration sought

Fitzpatrick

McGivern Ltd. —

Parke J. — unreported — 10

February 1977.

MUNICIPAL RATES

Port and Docks Board not liable for

municipal rates allegedly due on

transit sheds in the Port of Dublin.

The plaintiffs, Dublin Corporation,

sued the defendants, the Dublin Port

and Docks Board, for £22,221 for

arrears of municipal rates on transit

sheds in the Port of Dublin. O'Keeffe

P. dismissed this claim.

The defendants have resisted the

Corporation's appeal on the grounds:

(1) That they were not in rateable

occupation of these transit sheds;

(2) That they were not liable for

poor rate in respect of the transit

sheds prior to the Local Government

(Dublin) Act, 1930;

(3) That consequently they were

still not liable for this rate under the

1930 Act

Transit sheds were first mentioned

in S. 69 of the Dublin Port Act

1867, for the general use of persons

requiring the same. S. 20 of the

Dublin Port Act 1902, reinforced

the notion that the primary purpose

of the transit sheds was to act as

temporary repositories for goods

landed from ships, until the goods

had been cleared by the Customs

Authorities, and are thus a

convenience for shippers of goods. It

is the Harbour Master who assigns a

particular shed to a particular ship

when the ship arrives.

The statutory intent under S. 71 of

the Poor Relief (Ireland) Act, 1838,

was that the poor rate would be paid

by an actual, rather than a notional

or constructive occupier. But the

Board

neither

used

nor

enjoyed these transit sheds, and did

not derive any financial or other

benefit from them. The only persons

who have used them have been the

shippers of the goods into the port

The Board was consequently not in

immediate use or enjoyment of the

sheds. It was consequently not

possible to put a valuation on them,

so that the poor rate could fall on the

Board as occupier.

Quays as such have never been

rated, because on the authority of

Belfast Harbour Commissioners v.

Commissioner of Valuation

(1897) 2

I.R. 516, they were exempt from

rateability for the poor rate, as being

"dedicated or used for public

purposes" under S. 63 of the Poor

Relief (Ireland) Act, 1838. Transit

sheds are self-contained heredi-

taments, and the Board was never in

rateable occupation of them. Transit

sheds were marked exempt in the

valuation lists, under S. 2 of the

Valuation (Ireland) Act, 1854,

because they were "of a public

nature". The statutory application of

the poor rate law to the municipal

rate under the Local Government

(Dublin) Act, 1930, means that, if a

person is rated who is not an

occupier, the rate is void as having

been made without jurisdiction.

Consequently the assessing of the

municipal rate on the Board in this

case was void. The appeal is

consequently dismissed unanimously.

Dublin Corporation v. Dublin Port

and Docks Board —

Supreme Court

(Henchy, Griffin and Parke JJ.) per

Henchy J. — unreported — 16

February 1977.

NEGLIGENCE - NUISANCE

Third party liable to contribution to

defendant in respect of plaintiff's

death as a result of a road accident

caused by icy surface due to potholes

on road caused by heavy lorries

owned by third party.

Rain was falling heavily on 21

January 1973 and this was followed

by a heavy frost. The late Jonathan

Wade, a well-known artist, while

travelling on his motor cycle along

Monastery Road, Clondalkin, fell

from it and was run into and killed by

a motor car owned and driven by the

defendant. His fall occurred

immediately opposite to the South of

Ireland Asphalt Co. factory. At this

place, the roadway was broken into

several potholes and was covered by

ice. When the plaintiff, the widow of

Wade, had taken proceedings in the

High Court for damages for his

death, a compromise was reached

between the parties on terms that the

deceased had been guilty of contri-

butory negligence. The defendant

agreed to pay the plaintiff damages of

£25,000 for herself and four young

children. The defendant then claimed

contribution against the Asphalt Co.

but Murnaghan J. decided that the

defendant was not entitled to

contribution. The defendant has

appealed, relying on S. 21 (1) of the

Civil Liability Act, 1961. The

question to be decided is whether the

third party, the Asphalt Co., is "liable

in respect of the same damage" as the

defendant, in other words, whether

the widow could have successfully

sued the third party instead of the

defendant The third party's business

entailed the constant use of large

lorries which travelled to their

premises through this entrance and

along the road, which caused these

seven potholes; there was also a sheet

of ice there on the night of the

accident which was particularly

dangerous for cyclists and motor-

cyclists. Murnaghan J. rightly found

that Wade was caused to over-

balance and to fall on the road as a

result of coming into contact with the

ice. While Wade was picking himself

up and recovering his bicycle, he was

killed by defendant's vehicle

approaching from the same direction.

Murnaghan J. also found that the

defendant was not keeping a proper

look-out for other hazards in the

circumstances. Although Wade and

the defendant were negligent, this

negligence was essentially due to the

dangerous conditions prevailing that

night Because of their weight and

their number, the lorries belonging to

the Asphalt Co. could not be

supported by the road surface, and

this caused potholes. This company

was not entitled to exercise rights

without regard to whether damage

was caused to the public road. This

damage undoubtedly constituted a

danger to a motor cyclist on that

road at night time. As the Asphalt

Co. had so damaged the surface of its

own entrance and the adjoining road

to create a danger on it, it had

certainly created a public nuisance.

The widow could have sued the

Asphalt Co. instead of the defendant.

As regards negligence, a serious

road hazard had been created by the

pressure of the lorry traffic on the

road surface, yet nothing had been

done to remedy it. The Asphalt Co.

was negligent in causing the roadway

to break, and in failing to repair it.

What happened was clearly

foreseeable to the Asphalt Co. The

defendant is accordingly entitled to

contribution against the third party,

and the appeal against Murnaghan