Belton v Carlow County Council

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 25 February 1997
• Neutral Citation: 1998 WJSC-SC 397
• Court: Supreme Court
• Docket Number: [S.C. No. 283/94],283/94
• Date: 25 February 1997

BELTON v. CARLOW CO COUNCIL & PRENDERGAST

IN THE MATTER OF THE MALICIOUS INJURIES ACT 1981

SECTION 21

IN THE MATTER OF AN APPLICATION

BETWEEN

CHRISTOPHER BELTON

Applicant

AND

CARLOW COUNTY COUNCIL

Respondent

AND

WILLIAM PRENDERGAST AND CHRISTOPHER PRENDERGAST

Third Parities

1998 WJSC-SC 397

O'Flaherty, J.

Keane, J.

Murphy, J.

283/94

THE SUPREME COURT

Synopsis:

[1997] 1 IR 172- [1997] 2 ILRM 405

Citations:

MALICIOUS INJURIES ACT 1981 S12(3)(a)

PRENDERGAST (WJ) & SON LTD V CARLOW CO COUNCIL 1990 2 IR 482

CIVIL LIABILITY ACT 1961 S29(6)(a)

MCILKENNY V CHIEF CONSTABLE OF THE WEST MIDLANDS & ORS 1980 QB 283

HUNTER V CHIEF CONSTABLE OF THE WEST MIDLANDS POLICE & ORS 1980 AC 529

KELLY V IRELAND 1986 ILRM 318

SALOMON V SALOMON & CO 1897 AC 22

TAYLOR V SMYTH & ORS 1991 1 IR 142

MALICIOUS INJURIES ACT 1981 S21(1)

MALICIOUS INJURIES ACT 1981 S12(3)

ARTIFICIAL COAL CO & HARMON V MIN FOR FINANCE 1928 IR 238

CRIMINAL INJURIES ACT 1956 S4(3) (NI)

BLAIR V CURRAN 62 CLR 464

HOYSTED V TAXATION COMMISSIONER 1921 29 CLR 537

HOYSTED V TAXATION COMMISSIONER 1926 AC 155

SHAW V SLOAN 1982 NI 393

LAWLESS V BUS EIREANN 1994 1 IR 475

FREDERICK INNS LTD, IN RE 1991 ILRM 582

REICHEL V MCGRATH 1889 14 AC 665

BREATHNACH V IRELAND 1989 IR 489

1 25th day of February, 1997 by Keane J.

Keane J.

2 In January 1986 a factory in Leighlinbridge, County Carlow, together with its contents was destroyed by fire. The factory was owned by W. J. Prendergast & Son Limited (hereafter "the company") the proprietors of which were the third parties in the present proceedings. An application was made to the Circuit Court on behalf of the company under the Malicious Injuries Act 1981(hereafter "the 1981 Act"), claiming compensation from the Respondent (hereafter "the local authority") for the loss sustained by the company as a result of the fire. The amount claimed was in excess of 1 million pounds. The application was resisted by the local authority on two grounds, only one of which is material, i.e. that the fire was not caused by any other party. Since there was clear evidence, apparently accepted by the local authority, that the fire had been deliberately started, that amounted to an assertion on behalf of the local authority that the fire had been caused deliberately by the third parties. The learned Circuit Court judge found in favour of the company, but his judgment was reversed on appeal by the High Court on Circuit (O'Hanlon J.). After the determination of the case in the High Court, the company applied to O'Hanlon J. to state a case for the opinion of this court on a matter of law. That application was refused by the learned High Court judge and this court declined to entertain an appeal from that refusal, since it had no jurisdiction in the matter once the appeal to the High Court had been determined. (See Prendergast (WJ) & Son Ltd v. Carlow Co. Council, [1990] 2 IR 482).

3 As a result of the fire, damage was also caused to an adjoining premises owned by the Applicant. The learned Circuit Court judge (Judge Sheridan) gave a decree in favour of the Applicant in the sum of £4,500, liability not being in issue as between the Applicant and the County Council. The County Council, however, claimed to be entitled to be indemnified by the third parties under the provisions of the 1981 Act in respect of the entire of that sum. A preliminary issue was tried in the Circuit Court as to whether the third parties were estopped by the judgment and order of O'Hanlon J. from litigating the issue as to whether they had deliberately started the fire. That issue having been resolved in favour of the third parties by the learned Circuit Court judge, an appeal was taken from his decision to the High Court on Circuit (Johnson J.). At the request of both the local authority and the third parties, Johnson J. stated a case for the opinion of this court.

4 The question of law for the determination of this court posed by the Case Stated is as follows:-

"Are the third parties estopped from adducing facts in these proceedings to establish the cause of the said fire on the premises of (the company) on the grounds that the determination of those issues of fact are res judicata and subject to estoppel pursuant to the provisions of s.29 (6) (a) of the Civil Liability Act 1961that is to say the judgment of O'Hanlon J. delivered the 3rd day of June of 1988 in proceedings entitled The High Court, Eastern Circuit, County of Carlow, Between (the Company) and (the County Council)?"

5 Section 29(6)(a) of the Civil Liability Act 1961precludes the third parties from contending that the local authority were not liable to pay the Applicant compensation but otherwise preserves the rights of the local authorities and the third parties to rely on the general law of estoppel.

6 The facts as found by O'Hanlon J. on the hearing of the original application under the 1981 Act can be shortly summarised. The third parties (William J. Prendergast and his son Christopher) were at the time of the fire living in the vicinity of the town of Carlow and about ten or eleven miles from the factory premises. One or other of them locked up and secured the factory premises each evening at the end of the day's work: William J. Prendergast attended to this on the day of the fire. The factory was situated in what the learned trial judge described as "a type of compound" and, while some strands of wire had been tampered with or severed, the impression left on him was of a "quite substantial fortification against intruders". The factory was also fitted with a fairly sophisticated burglary alarm involving an electronic beam which, if breached anywhere inside, would set off alarms inside and outside the factory and flashing lights on the exterior. It would also register with the firm in Dublin who installed the system and they in turn were required to notify Mr. Prendergast at his home and (apparently) the Garda Siochana in Carlow. The control panel in the main office of the factory (where the alarm system could be switched on and off) contained a plan which lit up so as to indicate the precise area of the premises in which the alarm had been activated.

7 Mr. Prendergast, Senior, having locked up the premises and set the alarm on the evening of the fire, went home and had an evening meal. He then went to a hotel in Carlow as a blood donor and returned home at about 8.55 pm. On his arrival, he was told by his wife that the alarm had gone off in the factory and that she, in turn, had telephoned Christopher to ask him to call out and find what was happening.

8 Mr. Prendergast, Senior said that he decided to wait at home until he was contacted by his son. He accordingly sat watching the news on television until about 9.30. Not having heard from Christopher, he telephoned the factory and spoke to him but was told by him that the only suspicious evidence was a van from which the petrol cap had been removed: a length of hose had been inserted into the petrol tank. He decided to go out and said he arrived at the factory shortly before 10 pm. He was met by Christopher and the two men went to look at the van, which was parked near a window along the side wall of the factory. Mr. Prendergast, Senior said that he noticed that the window was partly open and on looking in he saw a "shining glow" in the knitting room, about four yards in from the window on his left, as he put his head in the window, and between some stacks of materials.

9 He and Christopher went down to the office at the front of the factory and went through the building to the knitting room. They said that, when they opened the door, smoke came rolling out and it was impossible for them to advance any further into the room. They made a "999" call and in due course the gardai and the fire brigade arrived.

10 There was evidence from a fire consultant that kerosene vapours were present in at least three locations within the building, one area being the office at the front of the building where Christopher Prendergast had been sitting for half an hour and upwards awaiting the arrival of his father.

11 There was no suggestion of any manifestations of ill-will on the part of any third party towards Mr. Prendergast and his son prior to the fire. The business was said to be extremely successful and gave a lot of employment in the locality. The suggestion made on behalf of the third parties was that what took place on the night of the fire was, in all probability, a wanton act of vandalism on the part of some arsonist, who broke in and set the place on fire without any motive other than the desire to cause damage and destruction, or an accidental fire caused by an intruder. It was common case that an electrical fault was not the cause and there was evidence that all the normal precautions had been taken to prevent an outbreak of fire.

12 Having summarised this evidence, O'Hanlon J. went on to refer to what he described as "certain difficulties" involved in accepting the hypothesis advanced on behalf of the third parties as the probable explanation for the fire. Having referred to aspects of the evidence given by the third parties which he found strange or incomprehensible, he concluded thus:-

"One of the most extraordinary features of the case is to find the co-director of the applicant company sitting in the factory office for half an hour or more reading a magazine, while the fire in a knitting room full of highly inflammable materials is smouldering gently in the background. The suggestion is that by some form of delayed action the major outbreak was held back for about one and a half hours from the time the burglary alarm was set off and only took hold when the internal door was opened after the arrival of Mr. Prendergast, Senior. This, notwithstanding that the window to the knitting room was partly open at all times. A previous fire...