The King (at the prosecution of John Jackson) v The County Council of The County of Cork

• Jurisdiction: Ireland
• Judgment Date: 24 February 1910
• Date: 24 February 1910
• Court: King's Bench Division (Ireland)

The King (at the Prosecution of John Jackson)

and

The County Council of the County of Cork (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1911.

Practice — Mandamus — Civil proceedings on Crown side — Variation between writ and order — Amendment — Order XXVIII., Rr. 6, 12; Order LXXXIV., R. 253.

Where the command in a writ of mandamus varies from that contained in the order allowing the issue of such writ, it is a matter of course to quash the writ so varying.

There is no jurisdiction to amend a writ of mandamus that varies as aforesaid, unless the order giving leave to issue it is similarly amended either prior to or contemporaneously with the amendment of the writ.

Where a mandamus commands several things, the prosecutor must show that he is entitled to enforce every one of such commands; and, if he fails to establish a right to enforce any one of such commands, a peremptory mandamus cannot go.

Motion on behalf of the Crown for an order that judgment be entered for the prosecutor on the findings in the trial of the writ of mandamus herein, and that a peremptory writ of mandamus be awarded in that behalf.

The prosecutor, John Jackson, Inspector of Factories, on April 22nd, 1908, obtained a conditional order for mandamus “directed to the County Council of the county of Cork, commanding them, according to their duty and statutory authority as having the general management and control of the dock, wharf, and quay, at Courtmacsherry, to put in force the regulations contained in Part I of the Regulations dated the 24th day of October, 1904, made by the Secretary of State in pursuance of the Factory and Workshop Act, viz.:—

“(1.) To provide secure fencing for the breaks, dangerous corners, and other dangerous parts of edges of the dock, wharf,

or quay of Courtmacsherry, so that the height of the fence shall be in no place less than 2 feet 6 inches, and the fencing shall be maintained in good condition ready for use.

“(2.) To provide, for the rescue from drowning of persons employed, a reasonably adequate supply of life-saving appliances, to be kept in readiness on the wharf or quay at Courtmacsherry; and to provide means, at or near the surface of the water, for enabling a person immersed to support himself or escape from the water.

“(3.) To provide efficient lighting for the dangerous parts of the regular road or way over the dock, wharf, or quay at Courtmacsherry, forming the approach from the nearest highway.”

This conditional order was made absolute, and the writ issued, its mandatory part following the terms of the order giving leave to issue, as set out above. The County Council filed an answer to the writ, and the trial of the action came on before Lord O'Brien, L.C.J., and a special jury of the city of Dublin, on April 19, 23, 24, and 26, 1910.

At the trial, it transpired that there was no regulation under the Factory Act, 1901, requiring the dangerous parts of the regular road or way, over a dock, wharf, or quay, “forming the approach from the nearest highway,” to be efficiently lighted, as was sought to be enforced in paragraph (3) of the absolute order. The regulation relied on by the prosecution was Regulation 3 of Part I of the Regulations, No. 1617, dated October 24th, 1904, made by the Secretary of State, in pursuance of the Factory and Workshop Act, 1901, and was in fact in the following terms:—

“All places in which persons employed are employed at night, and any dangerous parts of the regular road or way over a dock, wharf, or quay, forming the approach to any such place from the nearest highway, shall be efficiently lighted,”

The defendants' counsel early in the trial objected to the admission of any evidence of necessity for lighting on the ground that there was no such duty cast on the defendants as was set forth in the terms of the writ; and, at the conclusion of the case for the prosecutor, they asked for a direction on the ground that where a writ of mandamus was bad in part it was bad in toto. Counsel for the prosecutor thereupon asked for leave to amend the writ by striking out the claim for lighting as it stood in the writ and substituting therefor a claim stated in the actual words contained in the regulations. The Lord Chief Justice granted the application, and ordered that the plaintiff be at liberty “at his own risk” to amend the writ of mandamus in the manner stated, whereupon counsel for the defendants moved his Lordship sitting as a Judge of the King's Bench Division for an order quashing the writ of mandamus as so amended, upon the ground that it varied from the terms of the order giving leave to issue. This application was refused. The defendants' counsel then further asked for leave to put in a new return to enable them to traverse any demand and refusal. The Lord Chief Justice declined to allow any traverse of demand and refusal, except such as might arise out of any new matter introduced by the amendment. No return was filed by the defendants to the writ as amended.

The questions submitted to the jury, and their answers thereto, were as follows:—

“(1.) Are there any breaks on the quay, wharf, or dock, at Courtmacsherry; if so, where? Answer.—No, except steps.

“(2.) Are there any dangerous corners on the said quay, wharf, or dock; if so, where? Answer.—No.

“(3.) Are there any dangerous parts of the edges of the said quay, wharf, or dock; if so, where? Answer.—No.

“(4.) Are there places on the Courtmacsherry quay, dock, or wharf, in which persons employed are employed in the dark; if so, where? Answer.—No.

“(5.) Are there places on the Courtmacsherry quay, dock, or wharf, in which persons employed are employed between 9 p.m...