Artificial Coal Company and Hamon v Minister for Finance

• Jurisdiction: Ireland
• Judgment Date: 06 February 1928
• Date: 06 February 1928
• Court: Supreme Court (Irish Free State)

Supreme Court.

Artificial Coal Co. and Hamon v. Minister for Finance

THE ARTIFICIAL COAL CO. (Count Hamon Process, Ltd.) and HAMON

Applicants

and

THE MINISTER FOR FINANCE, Respondent (1)

Malicious injury - Property destroyed by fire - Claim for compensation - Proof of malice - Burden of proof - Principles applicable - Indirect evidence - Appeals from the Circuit Court to the High Court - Procedure - Grand Jury (Ir.) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 135 -Local Government (Ir.) Act, 1898 (61 & 62 Vict. c. 37), sect. 5 - Courts of Justice Act, 1924 (No. 10 of 1924), sect. 61.

Appeal from an order of the High Court (Sullivan P. and O'Byrne J.), dated the 9th February, 1927, dismissing the appeal brought by the Minister for Finance from the award of compensation for malicious injury made by the Judge of the Circuit Court for the Midland District (Circuit No. 5).

Proceedings were instituted in the Circuit Court by the applicants for compensation under the Criminal Injuries (Ir.) Acts and the Damage to Property (Compensation) Act, 1923, for the malicious destruction of their property. The property consisted of buildings, plant, machinery, tools, and stock-in-trade, alleged to have been maliciously destroyed on the 15th August, 1922, and a quantity of peat, alleged to have been maliciously burned on the 1st April, 1923. The Judge of the Circuit Court awarded £7,089 compensation, whereof £4,389 was

made subject to a full reinstatement condition under sect. 10 of the Damage to Property (Compensation) Act, 1923. The respondent in the application for compensation, the Minister for Finance, appealed to the High Court from the award of the Circuit Court Judge, but that Court, consisting of Sullivan P. and O'Byrne J., were divided in opinion: Sullivan P. holding that the appeal should be allowed, as the applicant had not discharged the onus that lay on him of proving that the destruction of the property was malicious, and accordingly that the award of the Circuit Court Judge could not be sustained; O'Byrne J. holding that the appeal should be dismissed, and the award allowed to stand. Accordingly, as the Court was divided, the award of the Circuit Court Judge was affirmed, pursuant to the provisions of sect. 61 of the Courts of Justice Act, 1924 (No. 10 of 1924). From the order of the High Court the present appeal was brought by the Minister for Finance to the Supreme Court. The further facts are fully set out in the judgment of the Chief Justice.

A claimant for compensation for malicious injury to property must, in the absence of direct evidence that the injury was malicious, adduce other legal evidence from which the Judge, acting in the capacity of a jury, may legitimately draw the inference, and, as a matter of strength and weight of the evidence adduced, ought to draw the inference, that the damage for which compensation is claimed has been done of malice; or, in other words, such evidence as to convince the Judge that the claimant has satisfactorily rebutted the ordinary presumption against crime, which it lies upon him to rebut.

So held by the Supreme Court.

The principles governing the proof of malice in claims for compensation under the Criminal Injuries Acts laid down by the Supreme Court.

The Supreme Court approved the decision in Lewin v. Minister for Finance, [1925] 2 I.R. 240, that, when hearing a malicious injury appeal, the High Court ought to act on the principles applicable to an appeal from the decision of a Judge in an action tried without a jury.

Claimants for compensation for the destruction of their property, which they alleged had been maliciously burned, were awarded compensation by the Circuit Court Judge, and, on appeal to the High Court (Sullivan P. and O'Byrne J.), that Court being divided in opinion, the award was affirmed. On appeal to the Supreme Court:

Held, on the facts, that the applicants had not proved their case, either by direct or circumstantial evidence, and that the award must therefore be set aside.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal by the respondent, the Minister for Finance, from the affirmance of a decree of the Circuit Judge for the County of Offaly, made on the 24th April, 1926. The proceeding was instituted in the Circuit Court by an applicant, who styled himself "Count Louis Hamon." He claimed the sum of £34,673 15s. 5d. compensation under the Criminal Injuries Acts and the Damage to Property Act, 1923, in respect of certain property, consisting of buildings, plant, machinery, tools, and stock-in-trade, alleged to have been maliciously destroyed on the 15th of August, 1922, and of a quantity of peat alleged to have been maliciously burned and destroyed on the 1st day of April, 1923. The Circuit Judge made an award in favour of the applicant and of the company, which was added as applicant, by order of the Circuit Judge. The total amount of the award was £7,089, whereof £4,389 was made subject to a full reinstatement condition under sect. 10 of the Act of 1923. The Minister for Finance appealed to the High Court, but as the members of the Court (the President of the High Court and O'Byrne J.) who heard the appeal under sect. 61 of the Courts of Justice Act, 1924, differed in their opinion, the award and decree of the Circuit Judge were, under the provisions of the section, affirmed with costs. In the circumstances, the respondent, the Minister for Finance, has taken the present further appeal.

This appeal, which was very fully argued on both sides, raises important questions of law and difficult questions of fact. Some of the questions of law which have been discussed are now, after many years, raised for the first time upon an appeal, in which they can be finally settled, affecting as they do the exercise of the important jurisdiction of the Circuit Courts under the Criminal Injuries Acts. I think it well to deal first with the questions of legal principle applicable to the facts, which have been argued upon the present appeal, and which have been raised again in other appeals before us.

The first matter to which I shall address myself is the question of the burden of proof, and the manner in which it is to be discharged. We have had it stated to us that the reported decisions on this matter exhibit divergence of view, and that in recent times there has been, in consequence of one of the more

recent decisions, a change in the course of proof in these cases in the former County Courts, and more recently in the Circuit Courts. I have thought it proper to take the present opportunity of reviewing carefully all the reported cases on the point with a view to enunciating the principles which, in my opinion, are correctly applicable to the facts. All the decisions in question are decisions of Judges sitting at Assizes, and none of them is reported in the official Reports of the Incorporated Council of Law Reporting.

Under sect. 135 of the Grand Jury (Ireland) Act, 1836, as amended by sect. 5 of the Local Government (Ireland) Act, 1898, "in all cases of maliciously or wantonly setting fire to, burning, or destroying any house, outhouse, or other building, or any haggard, corn, hay, straw, or turf" (I quote only the provision within which the present case is laid), the person injured has a statutory right to apply to the Court (now the Circuit Court) for compensation, and the Court may make a decree for such sum or sums of money as he ought to receive for such injury or damage, to be levied off the county or area mentioned in the Acts.

The applicant who prefers a claim for compensation under this enactment undertakes the burden of proving that his house, building, turf, or as the case may be, has been maliciously or wantonly set fire to, burned, or destroyed, and that he has thereby suffered injury or damage, for which he ought to receive a money compensation.

To establish that the act of setting fire to, burning, or destroying his property was "malicious," he must prove that the act was "malicious" in the legal sense—that is to say, he must prove that the act was a wrongful act, done intentionally, without just cause or excuse. He is not, however, required to prove that the author of the damage was actuated by, or even entertained sentiments of, personal ill-will, antipathy, or spite, towards him (the claimant)—i.e., "malice in fact," as it has been called in well-known judgments, or "malice in personam,"as others might prefer to say. In short, the applicant must prove "malice in law" in the doing, but need not show "malice in fact" in the doer, of the injurious act in respect of which compensation is claimed: M'Dowell v. Corporation of Dublin(1);Kennedy v. Minister for Finance(2); Bromage v. Prosser(3);Mogul Steamship Co. v. M'Gregor, Gow, and Co.(4); Midland Great Western Railway Co. v. Roscommon County Council(5).

Notwithstanding the arguments derived (in my opinion, erroneously) from the Assize decisions to which I have referred, there can be no doubt that the burden of proving not only that

his property has been burned or destroyed, but also that the setting fire to, burning, or destroying of the property was malicious (in the legal sense), lies upon the applicant for compensation. As it was concisely and accurately stated by Dodd J. in Malcolmson v. Down County Council(1): "An applicant in a claim for malicious injury must prove his case, and he must, as part of his case, prove malice" (by which, of course, he meant malice in law); also by FitzGibbon L.J. in Laffan v. Cashel U.D.C.(2): "In a case of this kind, the applicant must first prove that the fire was malicious or wanton"; and repeatedly by Palles C.B.: Connor v. Antrim County Council(3); M'Auleyv. Antrim County Council(4); Midland Great Western Railway Co. v. Roscommon County Council(5); M'Cormack v. Longford County Council(6). That learned Judge expressed the same principle by saying that the County Council are not insurers, and that the burden of...