The Gazette 1977

GAZETTE

APRIL 1977

£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

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

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