The Gazette 1964/67

was a 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 finding of fact that

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-