The Gazette 1991

\ JULY/AUGUST 1991

GAZETTE

lants were 'ordinarily resident' in the Waterford County Borough for at least the period of the academic year, within the meaning of 8.5 of the 1963 Act. Fox -v- Stirk and Bristol Electoral Registration Officer [1970] 2 QB 463 discussed, tor curiam: the appellants might also be ordinarily resident in Waterford for the full calendar year, since s.5(4) of the 1963 Act appeared to envisage ordinary residence in more than one constituency; (2) while the Registrar was entitled under Art. 12 of the 1963 Regulations to require information in carrying out his duties, he was restricted to matters that lie within his constituency, and it was irrelevant that registration might result in double registration within a larger European torliament constituency since Article 16.1.4 of the Constitution prohibited double voting and not double registration. SM I TH -V- CORAS IOMPAIR EIREANN SUPREME COURT 29 NOVEMBER 1990 TORT - OCCUPIER'S LIABILITY - FORESEEABILITY OF INJURY - TRESPASSER - ACCESS TO LAND - WHETHER ESTABLISHED THAT OCCUPIER KNEW OF PATTERN OF ACCESS - TRESPASSER CHASING OTHER PERSONS ON RAILWAY LINE - WHETHER FORE- SEEABLE - CONSIDERATION OF ENTIRE CIRCUMSTANCES The plaintiff, then aged 20, lost both legs when in collision with a train on a railway line owned by the defendant company. The plaintiff had aean two youdwtiding háehorae in a field neentie raflwpyfine, end when they ran onto the ralwyfM he foflowed them. The youlhs and the plaintiff gained access which hedbean broken-down! and e-wmgh- path which lad down to an embankment toaaide the tine. The plaintiff stated that ha ran 'flat out' after the youths along the side of the railway line, .ant that he feN and got up a couple of times to continue the chase. He also stated that he saw the train with which he collided coming through a tunnel, but did not actually remember the collision itself. The plaintiff claimed damages arising from the collision on the ground of negli- gence Evidence was given at the trial of the action that local people used the embank- ment down which the plaintiff had run as a short-cut to a local public house and other shops on the far side of the line. The defendant denied that a duty of care arose in the case on the ground that the events were not foreseeable The defendant did not rest any argument on the plaintiff being a trespasser. In the High Court, Egan J dis- missed the plaintiff's claim at the conclusion of the evidence for the plaintiff. On appeal HELD by the Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) dismissing the appeal: (1) the test of an occupier's liability even in the case of an intruder was whether what occurred was reasonably foreseeable and in relation to a person who was proximate to the occupier; and the court must take account of the entire circumstances surrounding the incident under discussion, including the nature of the danger involved, the age and knowledge of the person likply to be injured, the time and place of the incident and the conduct of the person who came onto the premises. Purtill -v- Athlone UDC [1968] IR

205 and McNamara -v- ESB [1975] IR 1 followed; (2) in the instant case there was no evidence that the defendant knew that persons used the railway as a short-cut; but even if the defendant had been shown to tolerate such crossings it was not reasonably foreseeable that an adult would run along the line in the circumstances of the instant case, taking account in particular that the plaintiff had fallen a couple of times and had seen the train approaching but had not stepped aside to avoid it; and accordingly the claim had been properly dismissed. Par curiam: since the defendant had not relied on the plaintiff's position as trespasser, it was not necessary for the Court to consider whether an occupier owes different duties of care to different categories of entrants and the question should be reserved for another case REVENUE - IMPOSITION OF DUTIES - POWER TO IMPOSE DUTIES BY STATUTORY ORDER - WHETHER SUBSEQUENT CONFIRMATION BY ACT VAUDATES ORDER - CONSTITUTION - CASE CAPABLE OF DECISION WITHOUT NEED TO ADDRESS CONSTITUTIONAL ISSUE - CONSTITU- TIONAL ISSUE NOT ADDRESSED BY SUPREME COURT ALTHOUGH DEALT WITH IN HIGH COURT - Imposition of Duties Act 1957, s.1 - Imposition of Duties (No. 221) (Excise Duties) Order 1975 — Finance Act 1976, s.46. The applicant was convicted in the District Court of the offence of keeping in his vehicle oertain l i y t u m b o n oil changeable will) en dutyion which a rebate of duty had under the .1975Older, contrary | to s.21 o l t h e Finance Act 1939, as reepondem Circuit Court judge. The 1975 i Order was mode oumuanttes.l of the 1957 Act. toy wh i ch the' government are empowered t o enpoee cuetwne duties, by statutory order, with or without limitations 'of such amount as they think proper on any particular description of goods imported into the State'. S.2 of the 1957 Act provides that any such excise Order shall have effect only until the end of the calendar year in which it is made, unless it is confirmed by the Act of the Oireachtas. The 1975 Order had been confirmed by s.46 of the 1976 Act and the applicant had been convicted in respect of an offence alleged to have been committed in 1984. The applicant sought judicial review of his conviction. In the High Court ([1989] ILRM 342) Blayney J held that the 1975 Order was invalid as an impermissible delegation of the law-making power of the Oireachtas under Article 15.2.1 of the Constitution, but he declined to quash the applicant's conviction on the basis that the confirmation of the Order by the 1976 Act could be interpreted as an intention to validate the order without intending to breach Article 15.2.1. On appeal HELD by the Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) dismissing the appeal: (1) the High Court judge was correct in concluding that s.46 of the 1976 Act was a valid confirmation of the 1975 Order and that the applicant's conviction should therefore stand; (2) (Finlay CJ, Griffin, Hederman and O'Flaherty JJ: McCarthy J dissenting) the High Court judge should not have dealt with the constitutional McDAID -V- SHEEHY SUPREME COURT 5 DECEMBER 1990 erafia.hy tfta 1975Order. The had been upheld by the

The plaintiff averred that he was not an alcoholic, that the defendant did not conduct a proper examination of him in the Garda station and that a second opinion should have been obtained by him. In the High Court, Mackenzie J granted leave under s.260. HELD by the Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) allowing the defendant's appeal: (1) the requirement in s.260 of the 1945 Act that the Court must be satisfied that there are substantial grounds for contending that there was bad faith or want of reasonable care is a restriction on the constitutional right of access to the courts under Article '40.3, and such restriction must be stricly construed in the sense that the restriction must not be availed of except where it is essential to do so. In re. fí. Ltd. [1989] ILRM 757; [1989] IR 126 applied; (2) the restriction on the right of access to the courts in s.260 was reasonable and it was not necessary for the plaintiff to establish the grounds for proceeding on any standard greater than that in ordinary civil proceedings, but nor was it sufficient that the plaintiff merely bring forward a prima facie case since this would not be consistent with the re- quirement to serve notice under s.260 on any intended defendant; Dicta in O'Dowd -v- North WesternHealth Board [1983] ILRM 186 discussed; (3) the plaintiff had failed to bring forward evidence whjch satisfied the Court of substantial grounds of want of reasonable care, since a mis-diagnosis did not necessarily signify want of reasonable care, nor was a second opinion required, and in the circum- stances leave under s.260 of the 1945 Act would not be granted. Per curiam: the plaintiff's brief affidavit, in which he averred that the facts in his notice of motion were correct, was not in the appropriate form. STUDENTS IN THIRD LEVEL COLLEGE - WHETHER ORDINARILY RESIDENT IN THE CONSTITUENCY IN WHICH COLLEGE SITUATED - STUDENTS REGISTERED IN HOME CONSTITUENCY - WHETHER REGISTRAR ENTITLED TO REFUSE REGISTRATION FOR FEAR OF DOUBLE EXERCISE OF VOTE - Registration of Electoral and Juries Acts (Specification of Dates) Regulations 1963, Art. 12 - Electoral Act 1963, s.5 - Constitution, Article 16.1.4. The appellants were students at the Waterford Regional Technical College None of the students' homes was in Waterford, but for the academic year they resided within the County Borough of Waterford. They were all on the Register of Electors for their 'home' constituency. They applied for registration on the Register of Electors for Waterford County Borough for 1988/1989. The County Registrar refused their application. This decision was upheld on appeal to the Circuit Court on the grounds that the students were not 'ordinarily resident' in the Borough within the meaning of s.5 of the 1963 Act, and that the Registrar was entitled to take account of the risk of double voting having regard to the fact that the appellants were also registered to vote in their home constituency. On case stated HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ): (1) the appel- 1UINN AMD O M * MULWOMI I CORPORATION SUPREME COURT 27 I lOVEMBER 1990 I ELECTIONS - REGISTRATION -

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