The Gazette 1958-61

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)- 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 An ordinary witness is qualified to give evidence as to drunkenness.

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