The Gazette 1964/67

Held by Davitt, P., (1) that the onus was on the prosecution to establish by proper evidence that the offences were committed in a public place as defined by section 3 of the Road Traffic Act, 1961, and (2) that the prosecution had not proved that the place in question was one to which the public had access and thus failed to prove an essential element of each offence. [The Attorney General (at the suit of Supt. Patrick G. McLoughlin) v. Thomas Rhatigan; I.L.T.R. (Vol. C), 1966, p. 37.] Duty of Local Authority to Maintain Highway In January or February 1965 when a highway authority inspected the pavement of a busy road, all the flagstones were in a good, sound, level condition. In June 1965 the plaintiff fell over a ridge of a flagstone which projected half an inch above the adjoining flagstone. The time when the defect occurred and its cause were unknown. The plaintiff brought an action against the authority for damages for personal injruies, alleg ing, inter alia, non feasance. There was evidence that the flagstone was potentially dangerous, that three-monthly inspections of the highway were desirable but that no such systematic inspection was carried out because, although the authority could employ more labourers who might be trained to carry out such inspections, they could not obtain the necessary skilled tradesmen to do the repairs and that a labourer could have repaired the flagstone. The County Court Judge found that the flagstone was a potential danger and that, although a system of inspection could have been devised, it would in fact have resulted in no practical improvement of the condition of the roads in the area and that it was pure speculation whether the defect existed in March 1965 and, therefore, whether a systematic inspection would have disclosed it. He considered that in order to establish their defence under section 1 (2) of the Highways (Miscellaneous Provisions) Act, 1961, the authority had to prove that they had em ployed the standard of care reasonably required of all highway authorities and, since they had merely proved that they could not comply with that standard, their defence failed. He awarded the plaintiff £75 damages. The authority appealed on the ground, inter alia, that the judge had mis directed himself in that he considered that he should not take into account their inability to obtain an adequate labour force, but they did not appeal against the finding that the flagstone was dangerous. The Court of Appeal, dismissing the appeal (Sellers, L. J., dissenting), held that since there 50

posed upon him the court assigned to him counsel and solicitor. [The People (at the suit of the Attorney Gen eral) v. Thomas Anthony Morrissey; I.L.T.R. and S.J. (Vol. G), 1966, p. 128.] Mental Distress—Death of Son The provisions of the Civil Liability Act, 1961 (No. 41 of 1961) s. 49 were considered in a case which came before Lavery, J., in Glaway in Oc tober of 1965. The plaintiff was the mother of John Gubbard who was a worker employed by the second named defendant, who was killed while discharging cargo from a ship, the property of the first named defendants at Galway. The deceased was aged fifty-five and a bachelor and he lived with the plaintiff, a sister Margaret, a brother Patrick, and a niece Mary V. McMahon, to whom he was in loco parentis. Other members of the family were three brothers and one sister, Sarah McMahon, who did not live in the family home. Held (1) the Act did not intend to provide large compensation for every member of the fam ily. (2) Compensation should be awarded only to those who have some real intense feeling or have been grieviously affected by the death. [Mary Cubbard v. Rederij Viribus Unitis and Glaway Stevedores Ltd.; I.L.T.R. (Vol. C), 1966, p. 40.] Meaning of Public Place—Onus of Proof R. was charged in the District Court with offences under sections 49 and 52 of the Road Traffic Act, 1961, in connection with the driving of a motor car. The essence of each offence was that it should have happened or been committed in a "public place" as defined in section 3 (1) of the Road Traffic Act, 1961, as meaning "in a street, road or other place to which the public have access with vehicles whether of right or by permission or whether subject to or free of charge". The only evidence deduced by the State as to the place where the said offences were alleged to have happened or been committed was that it was described by one of the witnesses for the prose cution as a private car park : that it was situate near licensed premises known as Mill House : and that near the defendant's motor car there was situate a motor taxi and at least one other motor car. At the close of the State case, a direction having been applied for on behalf of the defen dant on the grounds that no evidence had been deduced to show that the offences had been com mitted in a public place, the District Justice sub mitted a case with questions of law to the High Court.