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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
v.
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
v.
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