The Gazette 1975

Application that questions of law be tried on a preliminary issue before trial refused. This was an application under Order 34, Rule 2, by the defendant Minister that certain questions ol law be tried before any evidence is given in the action. In order that Order 34, Rule 2, should come into operation, the following conditions should exist: (1) The Court in any action may require a question of law for its opinion normally to be "special case". (2) A question of law must be identified amongst the questions in issue. (3) This question of law should be of such impor- tance that it must be decided before any evidence is given. (4) If special facts have to be provided, or if facts are in dispute, the rule does not apply. (5) This procedure is very rarely availed of. Five specific questions relating to the construction of the Minerals Development Act, 1940, has been pressed by the defendant Minister for preliminary decision.' Kenny J. refused the application, and his decision was affirmed unanimously by the Supreme Court. (Tara Exploration and Mining Co. v Minister for Industry & Commerce — Full Supreme Court per O'Higgins C.J.—unreported—4 February, 1975.) Plaintiff's injunction to restrain defendant from dumping manure on part of his lands dismissed. The plaintiff claims to be the owner of lands at Forth Mountain, Co. Wexford, containing less than two acres. He sues for an injunction to restrain the defendant from dumping manure on the said lands. The defendant denies that the plaintiff is owner of the lands, and counterclaims for a declaration that he has acquired an easement over them, in order to spread lime and manure. The lands in question are not arable and are common lands. The plaintiff obtained a conveyance in fee simple to the lands in June, 1973, but the vendor had been a squatter who had no documents of title. The vendor was an un- satisfactory witness who took little interest in these lands and never went there. The lands owned by the defendant were duly conveyed to him in 1966. Satis- factory evidence established that the defendant's predecessors in title had already deposited large quantities of manure on the plaintiff's land, particu- larly as the defendant's farm covered 65 acres, and the defendant continued to do so. The area used for the dumping of manure was half an acre, and an ease- ment undoubtedly existed for this purpose alone. The defendant is entitled to £60 for loss of manure. The plaintiff's claim for an injunction is dismissed. The defendant's counterclaim for a declaration that he has acquired an easement over the specific half acre is allowed. (Redmond v. Hayes—Kenny J.,—unreported—7th October, 1974).

vailing in this case the jury were not justified in hold- ing that the plaintiff did not contribute to the accident by want of reasonable care, as he had culpably failed to read the warning notices. In his view, the plaintiff was guilty of contributory negligence. As regards the damages, the jury were clearly entitled to award the plaintiff substantial compensa- tion for the physical and psychological trauma he suffered. As the accident ultimately resulted in the amputation of both arms, a fact so rare as to be almost unique, there is no proper yardstick to measure the correctness of the jury's award. Despite his suffering, the plaintiff is not in as bad a condition as a paraplegic who will have to live out his Hfe help- lessly in a whcelchair. Consequently the sum of £40,000 for general damages is unreasonable. Henchy J. consequently held that "there should be a new trial on the same issues as those considered by the jury in the trial in the High Court". Griffin J. said that, by reason of the harshness of the Addie rule, the Courts found means to circum- vent it. Child trespassers were frequently converted into licensees. Dixon C.J. in Commissioner for Rail- Ways for New South Wales v. Cardie has stated the modern principle thus: "In principlé a duty of care should rest on a man to safeguard others from a grave danger of serious harm if knowingly he has created the danger or is responsible for its continued existence and is aware of the likelihood of others coming into proximity of the danger and has the means of preventing it or of averting the danger or of bringing it to their knowledge". In Vidcan v. British Transport Commission—(1963) 2Q.B. 650 — the Court of Appeal decided that the duty of an occupier of land towards trespassers was the duty to take care not to injure trespassers whose presence was foreseeable. In Herrington v. British Railways Board — (1972) A.C. 877 — Lord Pearson said that Addie's case had been rendered obsolete by changes in physical and social conditions. There is now less playing space for children and a greater temptation to trespass. There are also more dangers by reason of the advance of technology. Griffin J. agreed, and said that Addie no longer could reason- ably have foreseen that child trespassers were likely to climb fcnces at their sub-station. There was enough evidence for the jury to find that there was negligence by the defendants, but the jury should have also found contributory negligence on the part °f the plaintiffs. As regards damages, the plaintiff sustained severe burns to both arms and the left side °f his chest; it was eventually necessary to amputate both arms; he might get employment as a book- keeper. As the serious injuries of the plaintiff do not compare with those of a paraplegic, the £40,000 awarded for general damages is excessive. Accordingly Griffin J„ with whom Fitzgerald C.J. concurred, would direct a re-trial on all isues.The appeal was allowed. (McNamara v. Electricity Supply Board — Full Supreme Court — Separate judgments bv Walsh, Hench and Griffin JJ.—unreported—30 July, 1974).