An Arbitration Between Smith and The Belfast Corporation

• Jurisdiction: Ireland
• Judgment Date: 07 December 1909
• Date: 07 December 1909
• Court: King's Bench Division (Ireland)

In The Matter of an Arbitration Between Smith and The Belfast Corporation (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.

1910.

Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), s. 274 — Condemnation and destruction of unsound food — Consequential trade loss — Arbitration — “Full compensation” — Meaning of — Award — Ambiguity — Finding that owner of food was not himself in default — No finding as to soundness or unsoundness of food when seized — Duty of arbitrators — Refusal to segregate items composing sum awarded — Jurisdiction of Court to send back award.

The Public Health (Ireland) Act, 1878, s. 274, enacts that “where any person sustains any damage by reason of the exercise of any of the powers of this Act, in relation to any matter as to which he is not himself in default, full compensation shall be made to such person by the sanitary authority exercising such powers; and any dispute as to the fact of damage or amount of compensation shall be settled by arbitration in the manner provided by this Act.”

Held, that the expressions “damage” and “full compensation” in this enactment do not include trade loss caused to the owner of an article intended for the food of man by reason of the publicity of proceedings brought by a sanitary authority under s. 133 of the Act to have such article of food condemned as unsound; and where there is evidence that an amount awarded as compensation under the section includes such trade loss, although the award does not so state, the Court has jurisdiction, on a motion to set aside the award, to remit it to the arbitrators to state the amount awarded as compensation for trade loss.

The carcase of a pig having been seized and condemned under a magistrate's order as unsound under the Public Health (Ir.) Act, 1878, ss. 132 and 133, a dispute between the owner of the carcase and the sanitary authority, as to the fact of damage and amount of compensation, was referred to arbitration under section 274 of the said Act. At the arbitration evidence was received, subject to objection, as to the trade loss sustained by the owner by reason of the publicity of the condemnation. The arbitrators were requested by counsel for the sanitary authority to state in their award what amount (if any) of the compensation represented such trade loss; and also whether they found that the carcase was sound when seized or not. The award did not state either of these facts.

The sum awarded as compensation exceeded the amount previously claimed in writing by the owner in respect of items other than loss of trade, but this “claim” was not referred to in the award, nor was it shown to have been before the arbitrators.

On a motion by the sanitary authority to set aside the award, held (1) that trade loss could not be recovered as damages; (2) that the arbitrators ought to have complied with the requisition to state their findings specifically; (3) that the owner's claim for compensation was receivable in evidence upon the motion; (4) that on the evidence the Court was at liberty to infer that compensation had been awarded beyond the jurisdiction of the arbitrators (1); (5) that the Court had jurisdiction to remit the award to be corrected by stating specifically the findings as to soundness and as to trade loss.

Walshaw v. Brighouse Corporation ([1899] 2 Q. B. 286) and Brierley Hill Local Board v. Pearsall (9 A. C. 595) discussed.

Quaere as to the jurisdiction of the arbitrators to determine the question upon which the liability of the sanitary authority depended, viz., the soundness or unsoundness of the carcase when it was seized?

Motion to set aside an award made in an arbitration held in pursuance of sections 216, 217, and 274 of the Public Health (Ir.) Act, 1878.

On the 2nd March, 1909, one of the officials of the Belfast Corporation, acting under the powers conferred on the said Corporation and its officers by the Public Health (Ir.) Act, 1878, seized the carcase of a pig, the property of William Smith, on the ground that it was unsound and unfit for human food. On the 4th March the said carcase was, at the instance of the said Corporation, condemned as unsound by a Justice of the Peace, and an order was made for its destruction. On the 5th March William Smith sent to the Town Clerk of Belfast a claim for £225 16s. 9d. compensation for the seizure and destruction of the said carcase. The amount thus claimed was composed of the following items:—

Price of pig	£5	13	4
Expenses on same	0	3	5
Loss of trade through publicity of Police Court proceedings	200	0	0
Costs and expenses of experts	20	0	0
	£225	16	9

On the 25th March the Town Clerk replied that, as the Corporation were satisfied from the report of their officers that the carcase in question was unsound and unfit for food, the Corporation refused to entertain any claim for compensation in reference to it.

On the 31st March, 1909, William Smith, by writing, appointed Robert N. Boyd to act as arbitrator on his behalf to ascertain the fact of damage done him, and to assess the amount of compensation payable to him under sections 216, 217, and 274 of the Public Health (Ir.) Act, 1878, by the Corporation for the seizure and destruction of the said pig, “which said pig was, as to its flesh, sound and fit for the food of man, and it being a matter in regard to the said pig and the possession thereof in which he himself” (i.e., William Smith) “was not in default.”

On the 15th April the Corporation, under its seal, appointed John M'Caw an arbitrator to act on their behalf in the matter. This appointment was made “under protest and without admission of any liability whatsoever.”

The arbitration was held on the 21st, 22nd, and 24th May, an umpire having been previously appointed by the arbitrators. The following account of the proceeding before the arbitrators is taken from an affidavit sworn by the solicitor for the Belfast Corporation:— “Counsel for the Corporation appeared and denied liability. After hearing evidence as to the seizure of the said carcase, and as to its soundness or unsoundness, and as to its value, counsel for William Smith tendered a newspaper as evidence as to the publication of a report of the proceedings before the Justice when the order for destruction was made; and tendered evidence as to loss sustained by William Smith in his business by reason of such publication. Counsel for the Corporation objected to the arbitrators receiving such evidence, and submitted that the arbitrators had no power to award damages for loss of trade caused by such publication … The arbitrators admitted the evidence. Counsel for the Corporation requested the arbitrators to find specifically whether the carcase in question was sound or not, and to set forth such finding in their award; and also to segregate the amount of any damage they might award for loss caused to William Smith's trade from the remainder of the damage claimed.”

On the 14th June the arbitrators made and published their award, which, after reciting the various steps in the proceedings (with the exception of the claim for compensation made on the 5th March by William Smith, to which no reference was made), concluded as follows:— “We, John M'Caw and Robert N. Boyd, having taken upon ourselves the burden of the said arbitration, and having duly weighed and considered the several allegations of the said parties and their witnesses, and the proofs, vouchers, and documents laid before us, do hereby make and publish this our award in writing, of and concerning the said matters so referred to us as aforesaid as follows, that is to say:—We award and find that the said William Smith, by reason of the exercise of the powers of the Corporation under the Public Health (Ir.) Act, 1878, in seizing and destroying the carcase of the said pig, and in obtaining the order of the magistrate as aforesaid, has sustained damage without being himself in default, and that the sum of £32 is the amount of compensation in respect of such damage, and we direct and order that the Corporation do pay to the said William Smith his costs and charges, of and consequent upon, this reference and award, and that the Corporation do abide their own costs.”

The award also directed the Corporation to pay the fees and charges of the arbitrators and umpire, and £12 12s., the costs of the award.

On the 19th November, 1909, the submission to arbitration was, on motion by the Corporation, received and made a rule of Court.

The claim made by William Smith on the 5th March was not referred to in any of the affidavits filed on behalf of either of the parties; and there was no evidence to show that it had been put in evidence at the arbitration.

On the 11th November, 1909, William Smith commenced an action upon the award, and on the 22nd November the Belfast Corporation entered an appearance in the action, but no further steps were taken therein pending the result of the motion to set aeide the award.

On the 26th November, 1909, the Corporation served notice of motion to have the award set aside on the following grounds:—

“1. That the said award is uncertain in that it does not find whether the carcase mentioned therein was or was not sound or fit for human food at the time when it was seized; and does not state whether the sum awarded thereunder was assessed on the basis of its soundness or unsoundness at such time.

“2. That the arbitrators had no power to award any damages in respect of the said carcase until they found as a fact that the said carcase was sound when seized; and that the said award contains no such finding.

“3. That the said arbitrators have acted ultra vires in awarding damages in respect of matters which were not legally the subject of compensation, to wit, loss caused to the complainant's trade by reason of...