269 / 364
was a
finding of
fact
that
the flagstone was
dangerous and there had been no appeal from
that finding the authority were, irrespective of
negligence, absolutely liable to the plaintiff unless
they proved, under section 1
(2) of the Highway
(Miscellaneous Provisions) Act, 1961,
that they
had taken "such care as in all the circumstances
was reasonably required to secure that the part
of the highway to which the action relates was not
dangerous to traffic". The authority had not to
prove that they had taken all steps "reasonably
necessary to secure" that result but that they had
taken such steps as were "reasonably required of
them as the highway authority" and, although the
number of skilled tradesmen available was a factor
to be taken into consideration, the authority, who
could have employed a larger number of unskilled
labourers, had failed to prove that a
labourer
would not have detected the danger and either
repaired the flagstone or fenced it off [Per Salmon,
L. J.].
Sellers, L. J., Section
1
(2) and
(3) of the
Highways (Miscellaneous Provisions) Act, 1961,
made negligence the essential and ultimate basis
of a claim against a highway authority for non-
feasance, as it has always been and still is in the
case of mis-feasance, and on the highway author
ity is placed the burden of proving that it has
taken reasonable care to maintain. The statute
does not set up an artificial and unattainable
standard of care and it recognises the different
circumstances of highway authorities throughout
the country, the particular character of the high
way and its normal user and the state of repair
in which a reasonable person would expect to
find the highway. "In all the circumstances", in
section
1
(2) of the Act, embraces all the facts
in a specific case and includes the capacity of a
highway authority acting reasonably to remove
the danger. The judge expressly or impliedly held
that in all circumstances the authority had taken
reasonable care and, accordingly,
the authority
had discharged
their burden and
the appeal
should be allowed.
Per Diplock, L. J., The common law duty to
maintain a highway was not based in negligence
but in nuisance and it was an absolute duty to
maintain the highway and the statutory duty,
which supersedes the common law duty, is also an
absolute duty. The statutory defence under section
1
(2)
is not available to a highway authority
unless it proves that it has taken reasonable care.
[Griffiths v. Liverpool Corporation;
The Weekly
Law Reports
(1966), 3 W.L.R., p. 467.]
Section 60 of the Civil Liability Act, 1961, in
this country was originally intended to be brought
"ol
into operation not before the 1st April 1967. It
proposed that absolute liability be placed on local
authorities for all accidents arising out of the non-
maintenance of roads and footpaths. The section
was the subject of discussion in the Dail on 17th
February 1966. In reply to a question from Deputy
Richard Ryan
(F.G.),
the Minister
for Local
Government, Mr. Blayney, stated "I would not
like to be very dogmatic as to whether it will
ever be brought in at all."
CORRESPONDENCE
Re/Land Commission Sales
Dear Sir,
I have read the statement in the
Gazetts
about
the references by the Minister for Lands to a
member of the society.
I am prompted to suggest that it might be
opportune for a serious effort to be made by the
society with a view to forcing a change of atti
tude by the Land Commission examiners to their
Estate Duty requirements, which in every case be
come a matter of course, irrespective of the date
of death of any deceased, who may have had a
remote interest in the title, whether that interest
may not have been already declared barred by a
Section 52 Order on the same title. I have had
numerous such instances and it is my understand
ing that this particular form of requisition by the
examiners arises solely as a result of a direction
from the Department of Finance, so much so that
on one occasion, it had occurred to me to question
by litigation the propriety at all of such a requisi
tion, especially
in cases of deaths over twelve
years.
It
is quite obvious
that
the examiner,
through no fault whatever of his, has become
converted into a tax gatherer and I cannot under
stand why a title, acceptable to an ordinary pur
chaser for value finds himself precluded from
going back to deaths beyond twelve years should
not be equally acceptable to the Land Commission,
but the reason is, of course, obvious.
I feel rather strongly that something should he
done in that particular regard, and if the exam
iner will not be allowed to relax that form of
requisition altogether, it occurs to me that the
Society might well consider recommending to all
its members that in no case should we agree to
Land Commission Acquisition, other than for cash
and by a contract which would preclude any
such requisition. Indeed apart altogether from the
aspect to which I have referred, I am now more
or less declining to consider Land Commission
acquisition, save for cash, by reason of the Land
Bond value problem. In compulsory cases, how-