The Gazette 1978

GAZETTE

MARCH 1978

BOOK REVIEWS

Perhaps the most interesting is that of British Railways Board v Herrington (1972) All E.R. 749, in which the House of Lords found the Board negligent and liable to a child trespasser aged six who strayed onto railway lines and fell on to the live electric rail and was severely burned, the boundary fence having been allowed to become and remain in a dilapidated condition despite the fact that the Board knew children were in the habit of climbing through a gap to take a shortcut to a meadow to play. It was held greater care needs to be taken in respect of a child than an adult trespasser. The degree of severity of the danger likely to be met by a trespasser is an impor- tant consideration in each case. The test is the duty of ordinary humanity. At the same time, the non-liability of the occupier for damage flowing from steps taken to keep out trespassers where these are of a deterrent (as distinct from a retributive) nature, is not likely to change as a result of this decision. This case would seem to further reduce the difference between the duty by the occupier to a lawful visitor on the one hand and to a trespasser on the other. In the case of Rose v Plenty (1976) 1 W.L.R. 141, a milkman, contrary to express instructions forbidding him either to give lifts to children or employ them to assist him, did so. As a result of his negligent driving, the infant plaintiff, aged thirteen, fell from the milk-float and received personal injuries for which the milkman's employer was held vicariously liable. The conduct prohi- bited was held to have been for the purposes of the employers, thereby distinguishing it from the earlier cases of Twine v Bean's Express Co. (1946) 175 L.T. 131, and Conway v George Wimpey & Co. Ltd. (1951) 2 All E.R. 363, where the employers were held not liable. The Court of Appeal in Dutton v Bognor Regis U.D.C. (1972) 1 All E.R. 462, had held the local authority (which was neither the builder nor the vendor) liable for the negligence of its building inspector who negligently carried out inspections of a dwellinghouse under the course of construction which later turned out to be a seri- ously defective building. Inter alia, it was held that the plaintiff came within the definition of the person described in Donoghue v Stevenson as a person so closely and directly affected by the surveyor's act that he ought to have had her in mind as likely to be injured if he made his inspection negligently. This decision has now been approved of by the House of Lords in Anns v Merton London Borough Council (1977) 2 W.L.R. 1024. In the case of Esso Petroleum Co. Ltd. v. Marsdon (1976) 2 All E.R. 5, it was held that a mis-statement made carelessly by the plaintiffs to the defendant about the through-put potential of a new petrol-filling station during pre-contract negotiations which resulted in the defendant taking a tenancy of the station from the plain- tiffs to his disadvantage, was not only a negligent mis- representation but also a collateral warranty and the plaintiffs were liable both in tort and for breach of warranty on the defendant's counterclaim. This decision overruled the earlier decision in Mutual Life and Citizens Assurance Co. Ltd. v Evatt, the minority judgements in that case being now preferred. The decisions finding contributory negligence on the part of road users who fail to wear safety devices or appli- ances which would probably have reduced the nature and degree of severity of their injuries are well known. Less common is the case of the passenger who rides in a motor vehicle well knowing the driver probably had consumed

CRIMINAL INJURIES KENNEDY, A. (Barrister-at-Law), and McWILLIAM, H. R. (Judge of the High Court): The Law of Compensationfor Criminal Injuries in the Republic of Ireland. Published by Criminal Injuries Publications, Westmanstown Lodge, Luttrellstown Castle, Clonsilla, Co. Dublin. 1977. Price £7.50 (postage 20p). In this book the law relating to compensation for criminal injuries is expounded in twelve short chapters. The contents are brief, clear and accurate and all the relevant cases are cited. The printing, layout and general presen- tation are excellent and there is a good index. The authors have succeeded in mentioning all the important general principles and a great deal of associ- ated detail and minutiae. It is not widely known that a rate to pay compensation for criminal injuries may be raised at any time under Section 20 of the Damage to Property (Compensation) Act, 1923, but this recondite provision is duly noted in its proper place. The treatment of liability for damage caused by children, in about twenty lines on page 31, is admirable — succinct, accurate and securely related to the numerous authorities cited. It would have been helpful to cite Hollington v Hewthorn & Company Limited (1943) 2 All E.R. 35, to illustrate the inadmissibility of the conviction of the culprit as evidence of malice in a criminal injuries appli- cation but the appropriate Irish authorities are duly noticed. There is a chapter on compensation for personal injuries and an account of the ex gratia scheme for compensation introduced in February 1974. Specimen forms of application and appeal with extracts from the relevant Rules of Court and Statutory provisions are included. This book can be recommended as a compre- hensive and reliable guide to the whole field of criminal injuries and a worthy successor of the invaluable Moloney and Lee. William Dundon NEGLIGENCE Charlesworth on Negligence. 6th edition by R. A. Percy. London: Sweet & Maxwell, 1977. Hardback, £25.00. Charlesworth on Negligence has for many years occupied a prominent position on the bookshelves of most Irish lawyers, and the sixth edition published at the end of 1977, will be no exception. In his Preface, the Editor explains that he has attempted to bring the law up to date as at 1st September 1977. The lengthy Tables of Statutes and of Statutory Regulations, however, will remind Irish practitioners that much of the law stated in the text has no application in Ireland or has merely persuasive value. Nevertheless, the many new cases to which reference is made will be of interest to Irish lawyers and their possible effect on decisions in our own courts will be watched with interest. Meanwhile, I would propose briefly to refer to a few of them.

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