The Gazette 1983

GAZETTE

JULY/AUGUST

at the meeting and voted in the absence of the Defendant. 4. Failure to pay expenses of Mr. Moneley for a trip to Cork, of which the Defendant did not receive proper notice. The complaint was made in this instance by Mr. Moneley who was affected by the outcome and should not have been allowed to remain at the meeting after the expulsion of the Defendant. The procedure followed did not accord to the Defendant natural justice and his purported dismissal was therefore null and void, and consequently the Defendant retained and had at all materials times retained his office. The Appeal was therefore dismissed. The National Engineering and Electrical Trade Union, Eustace Connelly, Joseph Carter and Sylvester Sheridan v. Kevin M. P. McCormell. Supreme Court Nem. Diss, (per Griffin J) 17 December 1982 — unreported. Michael J. Kennedy TORT Duty of Care —Damage on roadway due to works in progress by con- tractor engaged by property developers — Liability of Corpora- tion as Planning Authority and Highway Authority. The Plaintiff an elderly lady was crossing the road in the company of her husband at Marine Road, Dun Laoghaire, from Dun Laoghaire church towards the new shopping centre. As she neared the side to which she was proceeding she tripped and fell sustaining injury. Her fall was caused by a difference in road levels of , approximately two inches along a line where a new lay-by for buses was being constructed. The roadway which was all tarmacadam appeared uniform and no warning of the difference in level was given. Construction of the lay-by was 'carried out by a firm of contractors who were engaged by a development company who in turn had obtained planning per- mission from the Defendants for the development of the site in which the shopping centre now stood and which planning permission was granted subject to a condition that a bus lay-by be provided by the developers. The layout of this bus lay-by (which involved considerable interference with the roadway) was agreed with the Defendant. The High Court was satisfied that because the developers of the shopping centre obtained planning permission for the development including construction of a bus lay-by, the layout of which had in advance been agreed with the Defendants and because the Defendants were aware that work was being carried out by the

contractors engaged by the developers the work being carried out had been "authorised" by the Defendants and that they were as such liable for any negligence of the contractors in carrying out the work and in particular in failing to warn of or guard against the danger on the highway on the occasion of the accident and the Court ruled accordingly. The Defendants rested their appeal on two submissions:— Firstly that the case ought to have been withdrawn from the jury because there was no evidence that the interference with the roadway was authorised or permitted by them and secondly that the case ought to have been withdrawn from the jury because there was no evidence of negligence. Held (per O'Higgins C. J. Hederman J. concurring and Griffin J. dissenting) that on the facts surrounding the circum- stances of the Plaintiffs accident it was proper that the case should have gone to the jury on the issue of negligence and the jury having found negligence, such finding could not be disturbed and so the grounds of the Defendants appeal on the evidence of negligence failed. On the Defendants other ground of appeal it was held further that from the facts surrounding the obtaining of planning permission by the developers, the condition of provision of a bus lay-by by the Planning Authority, the construc- tion of the bus lay-by by the contractors involving considerable interference with the roadway, the agreement of the layout of the bus lay-by with the Defendants and the fact that it was known to the Defen- dants that such works were being carried out, it could be fairly inferred that the pro- vision of a bus lay-by had been required by the Defendants as Planning Authority. It could be inferred further that the work was carried out by the contractors on behalf of the developers and with the knowledge and approval of the Defen- dants as Planning Authority. The Defendants contention that as Highway Authority under the Local Government Act of 1925 they are not to be fixed with knowledge or made liable in respect of any licence or approval which they might or may have given as Planning Authority was rejected and it was held that the Defendants must be held to have known and to have approved of the work undertaken by the contractors. It was held further that even if the work was authorised originally by the Defen- dants solely as Planning Authority this in itself did not mean that as Highway Authority they could not be regarded as having knowledge thereof. Whatever was t done was done clearly with the knowledge of the Defendants and theyhad a responsi- bility to look to the safety of those using the roadway. It was held by Griffin J. in allowing the appeal that the work complained of was

not carried out nor was the danger created by the Defendants. It is well settled that the highway authority are not liable to the user of a highway for injuries suffered or caused by want of repair (non- feasance) but are liable in damages for injuries suffered by such use if they or their servants or those for whose acts they are responsible have been negligent in doing repairs to or in interfering with the highway (misfeasance). In the instant case the Plaintiff sought to expand the liability of a highway authority to include respon- sibility for the acts of a contractor engaged by a developer in doing work for which the latter had obtained planning permission and to equate this liability with that of the authority for acts of a contractor engaged by them which — in his view was warranted neither by principle nor authority. All cases cited in the High Court were cases where work was carried out by the highway authority. Counsel were unable to refer to nor was Griffin J. able to find any case in which liability attached to a highway authority by reason of the granting of planning permission for the work being carried out and he accordingly allowed the appeal. Weir v. Corporation of Dun Laoghaire. Supreme Court (per O'Higgins C. J., Hederman J. concurring and Griffin J. Dissenting) 20 December 1982 — unreported. Maurice Leahy COMPANY LAW Companies — Winding up by Court — Application for Directions — Whether Capital Gains Tax an 'Expense' or a 'Necessary Disburse- ment' under Order 77, Rule 129, Rules of the Superior Court (S.I. No. 72 of 1962). In the course of the liquidation ol Win Hool McArdle Limited the Respondent, who was Official Liquidator of that Company, sold certain properties which were subject to incumbrances. A liability was thereby incurred for corporation tax on chargeable gains accrued on that sale under the Capital Gains Tax Act 1976. The Respondent thereupon brought a Motion in the High Court before Carroll J., seeking certain directions which included the following: — (1) Whether or not capital gains tax payable in relation to the sale is an "expense" incurred in the realisation of an asset within the meaning Rule 129 of Order 77 of the Rules of the Superior Courts which relate to winding-up. (2) If it is, can it be deducted from the proceeds of sale payable to the mortgagees? (3) Is the tax "a necessary disburse- ment" of the liquidator under the

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