The Gazette 1967/71

PRECIS OF UNREPORTED IRISH CASES With a view to facilitating easy reference and consultation by members, it is hoped to publish a separate eight page leaflet supplement of precis of recent unreported Irish decisions with the February issue of the Gazette. APPRENTICES' FORUM Absolute Liability in Running Down Actions The Apprentices' Debating Society recently sponsored a debate on the motion " That the theory of absolute liability in running down actions should be implemented in Irish Law ". The six guest speakers, all ex-auditors of the Society, covered the practical aspects of the debate quite extensively. There was almost unanimous criticism of the unreliability of the civil hearing as it is practised at present. Mr. Bruce St. John Blake described its effect as being " nothing more than a lottery ". Referring to the question of evidence, Mr. John Buckley said the existing system needed modern isation and suggested that evidence taken at a criminal trial as to who was responsible for an accident should be admitted at the civil hearing as a time saving measure. Mr. Blake and Mr. Patrick Kilroy urged that absolute liability be introduced here as a matter of social justice. Mr. Kilroy said that by permit ting the use of vehicles on the roads, society thereby had an obligation to compensate its own members who were injured as a result. He stated that this principle is finding increasing favour in most European countries. Opposition speakers emphasised the problem of insurance presented by the application of the theory. Mr. Michael O'Mahony remarked that the report of the New South Wales Commission pin pointed but could not seem to overcome the difficulty of ensuring that compensation should not be so high as to make it easy for a claimant not to have to return to work. A suggestion was made that the system at pre sent in operation under the German Civil Code might suitably be adopted here This scheme per mits claims to be made on insurance companies up to a limited amount without production of a Court order, while any additional sum can be recouped by instituting proceedings (see Gazette August-September 1966). In his summing up, the Chairman, Senator Professor John M, Kelly, doubted whether the principle of social justice on which the theory is based overrides the priciple of natural justice that a motorist should not be obliged to contri bute, through increased insurance, to the cost of 79

process before anyone could be arrested should depend on a positive reading from a scientific device. " I don't think it intended that the arrest should be made as a result of a test in circumstances, when, accord ing to the manufacturers, the device might not give an accurate reading ". Director of Public Prosecutions v. Carey—(1969) 3 All ER 1662. BREATH TESTS OFF ROAD VALID 20. If a breath test could not be required of a motorist who had turned a few feet off the highway, it would open up the chances of a new form of " cops and robbers " chases, Lord Justice Sachs stated, when the Court of Appeal (Lord Justice Sachs, Mr. Justice Hinchcliffe and Mr. Justice James) gave reasons for having allowed an appeal against conviction of Edward Mervyn Jones, of Wells, for driving contrary to section I (l) of the Road Safety Act, 1967, with a proportion of 99 milligrames of alcohol in 100 millimetres of his blood. " It is not the law that a motorist merely by turning a few feet off a highway can stultify police action and escape being required to give a breath test, when that action would otherwise be proper under the statute ". The appellant had been convicted in April in Brecon Quarter Sessions. His Lordship said that there were no merits in favour of the appellant, who, just before stopping in the drive of his house, had manifestly been driving with an excess proportion of alcohol in his blood. The only issue was whehther a constable in uniform was entitled to require the appellant to provide a specimen of breath for a breath test under section 2 (i), which had to be fully considered. The appellant had been driving excessively fast on a winding road, followed by a police car. He stopped in his drive with the bumpers two or three feet in from the road and, as the officer approached, the appellant switched off the engine. The ignition key was still in the dashboard. As the appellant started to get out the officer noticed that his breath smelt of alcohol and, although he agreed to take a breath test, he failed to do so and was arrested. The sole defence point raised at trial was that he was no longer a person driving. The issue of whether an accused was driving at a relevant time was one of the facts that had to be left to the jury unless an admission had been made—with a proper direction, if there was evidence fit to go to them. The deputy chairman had been misled by counsel into error in decidng the question was one of aw. His Lordship said that there was no reason for apply ing a less degree of reasonableness to the 1967 Act provisions than to those of other statutes. Both as a matter of reasonable approach and on well-established authority a " requirement" under section 2 (i) could be made off the road so long as it was made in the course of a chain of action following sufficiently closely on an observed driving on the road. A motorist merely by turning a few feet off a highway could not stultify police action and escape being required to give a breath test, when the action could otherwise be proper. " The contrary view would result in absurdities; for it would entail that any driver who sees himself followed by the police has only to drive fast enough to get off the road and on to the nearst piece of private property to escape the consequences which the Act intended ". (Regina v. Jones, Times, 5th December 1969).