Wheeler v Commissioners of Public Works in Ireland

• Jurisdiction: Ireland
• Judgment Date: 24 June 1901
• Date: 24 June 1901
• Court: Court of Appeal (Ireland)

WHEELER

and

COMMISSIONERS OF PUBLIC WORKS IN IRELAND

Appeal.

Negligence — Liability — Corporation performing public duties — Servants of the Crown — Commissioners of Public Works — Public park — Maintenance out of funds voted by Parliament — No power to levy tolls or rates —

See pages 206-213, infra.

Bray v. Lancaster JusticesELR 22 Q. B. D. 484.

Burrell v. TuohyIR [1898] 2 I. R. 271.

Campbell v. HornsbyUNKUNKIR I. R. 6 C. L. 37; 7 C. L. 82,

Campbell v. HornsbyUNKIR I. R. 6 C. L. 37; per Fitzgerald, B., at p. 51.

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Coe v. WiseENRELR 7 B. & S. 831; L. R. 1 Q. B. 711.

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Commissioner of Valuation v. The Sligo Harbour CommissionersIR [1899] 2 I. R. 214.

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Duncan v. FindlaterUNK 6 C. & F. 894.

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Gilbert v. The Corporation of Trinity HouseELR 17 Q. B. D. 795.

Gilbert v. Trinity HouseELR 17 Q. B. D. 795.

Graham & Son v. Commissioners of Works and Public BuildingsUNKELR 17 T. L. R. 540; [1901] 2 K. B. 781.

Graham v. Commissioners of WorksUNKELR 17 T. L. R. 540; [1901] 2 K. B. 781.

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Murphy v. Soady Ante, p. 213 n.

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202 THE IRISH REPORTS. [1903. Appeal. WHEELER v. COMMISSIONERS OF PUBLIC WORKS 1901. June 24. Negligence—Liability—Corporation performing public duties—Servants of the Crown—Commissioners of Public Works—Public park—Maintenance out of funds voted by Parliament—No power to levy tolls or rates—St. Stephen's Green Act, 1877 (40 4- 41 Viet. c. cxxxiv). By the St. Stephen's Green Act, 1877, the square, which previously had been vested in Commissioners as a private square, was vested in the CommisÂsioners of Public Works, who were, by the Act, charged with the duty of maintaining the same, to be used as a public park, with power to accept private subscriptions from persons willing to contribute towards carrying into execution the purposes of the Act, but with no power to levy rates or tolls, though authorized to defray such of the expenses incurred in carrying the Act into execution as could not be defrayed out of moneys received by them under the Act out of moneys to be provided by Parliament. The plaintiff in this action sought damages for injuries received by him while lawfully using the square, by coming in contact with an iron railing, which the statement of claim alleged was erected therein by the Commissioners of Public Works in a negligent and dangerous manner : Held (Palles, C.B., dissentiente), that the Commissioners of Public Works in Ireland were not, by virtue of the Act, constituted servants of the Crown. Held, also, that it was no defence to an action of negligence that the defendants had received no money under the Act applicable to the purposes of the Act, and that the expenses incurred by them in carrying the Act into execution were solely defrayed out of moneys provided by Parliament for such purpose, and that Parliament had not provided moneys for payment to the plaintiff, or out of which he could be paid any damages in case such should be recovered against the defendants. Held, also, that it was no defence to an action of negligence that the defendants had no power to levy tolls, nor were any moneys other than moneys voted by Parliament, received by them in respect thereof, and the defendants had no property or moneys for payment to plaintiff, or out of which the plaintiff could be paid any damages. APPEAL from an order of the King's Bench Division, made the 28th day of February, 1901, allowing certain points of law raised VOL. II.] KING'S BENCH DIVISION. 203 by the plaintiff in his reply by way of demurrer to the 6th, 7th, Appeal. and 9th paragraphs of the defendants' statement of defence, and 1901. WHEELER WH directing that these paragraphs should be struck out as being bad v. in substance, and disclosing no answer in law to the plaintiff's COMMRS. OF YETB. WORKS. action. The statement of claim was as follows :— 1. Prior to the passing of the St. Stephen's Green (Dublin) Act, 1877 (1), the square and grounds of St. Stephen's Green, Dublin, were vested in certain Commissioners, and the said Act, after reciting among other things that there was within the municipal boundaries of the city of Dublin no public park, and. that it would be of great public advantage and conduce to the health and enjoyment of the inhabitants of the said city if the said square were opened for their recreation, and were for that purpose discharged from all estates, claims, rights, and incumbrances affecting it, and were vested in and mainÂtained and managed by the Commissioners of Public Works in Ireland, proÂvided for the discharge of all debts of the said Commissioners of St. Stephen's Green, and the rendering of the said square and. grounds suitable for use as a public and ornamental park. 2. Under and by virtue of the said. Act and the Order of the Lord LieuÂtenant of Ireland, dated 22nd July, 1880, and. published.in the Dublin Gazette of 27th July, 1880, said square St. Stephen's Green, and all the grounds enclosed within the posts and chains of St. Stephen's Green (in the said Act referred to as St. Stephen's Green), and all property of whatsoever description belonging to the then existing Commissioners of St. Stephen's Green in their capacity as such Commissioners, were transferred to and vested. in the defenÂdants, the Commissioners of Public Works in Ireland, as incorporated by the Act 32 & 33 Viet. c. 74, to be by them held for the purposes in the said. Act mentioned. 3. The said. Act further provided. that the defendants, after the transfer to them of the said premises, should maintain the same as an ornamental park or pleasure-ground. for the recreation of the public, and might make from time to time such alterations in the arrangement, laying out, and fencing of the same as they should. think fit, and that the defendants should. at all times maintain and keep the said St. Stephen's Green and. the erections thereon and all other things thereto belonging in good and. sufficient repair, and in a proper and ornamental condition, and. allow the same to be used and enjoyed as a public park, and that for effecting any of the purposes of the Act it should be lawful for the defendants to accept private subscriptions from persons willing to contribute towards carrying into execution the objects of the Act. 4. The defendants, being possessed of the said St. Stephen's Green under and by virtue of the Act and. Order aforesaid, and subject to the provisions of (1) See pages 206-213, infra. 204 THE IRISH REPORTS. [1903. Appeal. the said Act, wrongfully erected and maintained certain iron structures of 1901. varying heights, and with sharp spikes projecting horizontally from the top of WHEELER such structures, around the trees on the ground enclosed within the posts and v. chains aforesaid in such a manner as to be dangerous to persons lawfully using COMMIS. OF Pun. WORKS. the said ground, whereby the plaintiff lawfully using the said ground came into contact with and was pierced through the right eye by one of the said sharp spikes, and was so severely injured that his eye has had to be removed, and that he has suffered great pain and has been prevented from pursuing his studies as a medical student, and has incurred heavy expenses, and has been permanently injured in his career in life. 5. The defendants being possessed of the said St. Stephen's Green under and by virtue of the Act and Order aforesaid, and subject to the provisions of the said Act, did not maintain and keep the same and the erections thereon in proper condition, but negligently maintained and kept the said iron structures in an improper condition aforesaid so as to be dangerous to persons lawfully using the said ground, whereby the plaintiff lawfully using the said ground was pierced through the right eye by one of the spikes as aforesaid, and was so severely injured that his eye has had to be removed, and that he has been and still is prevented from pursuing his studies as a medical...