Sean Dillon Ltd v Dublin Corporation
| Jurisdiction | Ireland |
| Judge | Mr. Justice Blayney |
| Judgment Date | 01 January 1989 |
| Neutral Citation | 1987 WJSC-HC 1462 |
| Court | High Court |
| Docket Number | D5920 |
| Date | 01 January 1989 |
1987 WJSC-HC 1462
THE HIGH COURT
BETWEEN
AND
Citations:
WEXFORD TIMBER CO V WEXFORD CORPORATION 88 ILTR 137
MIDLAND RAILWAY CO, IN RE 38 ILTR 52
CAVENDISH WOODHOUSE (HOLDINGS) LTD V DUBLIN CORPORATION 1974 IR 159
FLEMING V CAVAN CO COUNCIL 1974 IR 159
Synopsis:
MALICIOUS INJURIES
Malice
Proof - Statutory test - Intentional wrong - Inference from facts - Fire - Destruction of furniture factory - Section 5 of the Act of 1981 stated (inter alia) that, where damage is maliciously caused to property, the person who suffers the damage shall be entitled to obtain compensation from the local authority in accordance with the Act - Sub-section 2 of s.5 stated that, for the purpose of sub-s.1, damage shall be taken to be maliciously caused only if caused by (inter alia) a wrongful act done intentionally without just cause or excuse or in the course of, whether or not for the purpose of, the comitting of a crime against the property damaged - The claimants" furniture factory was destroyed by fire early in the morning of 7/9/80, which was a Sunday - There was clear evidence that certain furniture and upholstery material had been removed from the premises, that a metal office cabinet had been forced open, and that two ledgers were missing - There was no evidence of the means of entry used by the intruders - The electricity supply had been disconnected at the main switch in the afternoon of the previous day and the gas cylinders had been made safe - The electric wiring of the premises had been renewed recently - There was evidence that the fire had started quickly at one end of the building and that the outbreak of fire had not been preceded by a period of smouldering combustion - The material for covering the furniture did not ignite easily - Held that, on the balance of probabilities, the inference to be drawn from the facts proved by the applicants was that the fire had not been caused accidentally - Held that the hypothesis that the fire had been started by children was not a reasonable one - Held that, as there was no evidence of the presence of lightning in the area during the relevant period, it was not necessary for the claimants to disprove the possibility of the fire having been caused by lightning - Held that the claimants were entitled to compensation under s.5 of the Act of 1981 - Allowance of claimants" appeal from decision of Circuit Court judge - Malicious Injuries Act, 1981, s.5 - (Ct. App. Blayney J. - 29/7/87) [1989] ILRM 46
|Sean Dillon Ltd. v. Corporation of Dublin|
Judgment of Mr. Justice Blayneydelivered the 29th day of July 1987
This is an appeal by the Applicant, Sean Dillon Limited, against the Order of the Circuit Court dismissing its claim for compensation for criminal injury to its factory at Grand Canal Place which was destroyed by fire on the morning of Sunday 7th September 1980.
The Respondents did not go into evidence. At the conclusion of the Applicant's case. Mr. Kenny, who appeared for the Respondents, submitted that the cause of the fire was a mystery and that the claim should accordingly be dismissed. I will set out his submissions fully later, but I must start by summarizing the evidence and seeing what facts have been proved.
The Applicant's factory was formerly a warehouse. It is arectangular building approximately 150 feet long x 35 feet wide and at the time of the fire was used for manufacturing furniture and upholstering. It had been acquired by the Applicant about four months before the fire. The Applicant had constructed a work-room in the building by putting up a wall running the full length of the building, parallel to the wall on the southern side and about 12 feet from it. An internal roof was then constructed on steel beams laid between this wall and the side wall of the building. All the work of making the furniture and upholstering was done in this work-room. The remainder of the building was used for storing completed suites of furniture. Some of the materials used in the work of manufacturing and upholstering was stored on the roof of the work-room.
Mr. Gerard Moorhouse, an upholsterer who has been in the employment of the Applicant for about eighteen years, gave evidence that he was working in the premises on Saturday the 6th September 1980, the day before the fire. While he was there, two men from the Department of Posts and Telegraphs came in the morning to put in a telephone extension. They were there between 9.30 a.m. and 12.30 p.m. Mr. Moorhouse said he did not smoke and he did not see either of the two men smoking; he accepted that they might have smoked without his seeking them. He finished work and left the factory at about 3.45 p.m. Before leaving, he checked the three cylinders of bottled gas in the work-room; they were turned off. He switched off the electricity supply to the building at the central switch; and he checked that the water was turned off. He went out through a wicket-gate in the main entrance gate which was a timber sliding gate hanging from an overhead rail. This gate was properly bolted down and up on the inside. The wicket-gatehad a yalelock and he closed this after him. He retained the key of the gate. He has not been in the building since the fare.
Garda Francis Creevy was the first person to discover the fire. He was attached at the time to Kilmainham Garda Station and had been on duty since 5.45 a.m. At about 7.20 a.m., from Colbert Road, he saw smoke and immediately radioed to the firebrigade. When he got to the building the front door and the roof had already collapsed.
Mr. Joseph Cunningham, the District Officer of the fire brigade at Dolphin's Barn fire station, gave evidence that the building was well alight when he arrived to it at about 7.20 a.m. It must have been burning for some time before they were notified. The roof had began to fall in and the large entrance gate had fallen down on its face. He said there would have been about ten fire men in the building fighting the fire and using at least two hoses. In cross examination he agreed that a lot of things could get knocked over in the course of fighting afire.
Mr. Sean Dillon, who was the owner of the Applicant Company, gave evidence of having moved into the premises in Grand Canal Place in May 1980. Before moving in he had had the premises completely rewired by Mr. Frank Ryan, an electrician. This was confirmed by Mr. Ryan, who also gave evidence. He said the work had taken about three weeks and had been passed by the E.S.B.
Mr. Dillon gave particulars of what was in the premises before the fire. The storage area was completely occupied by suites of furniture. He described them as being "bumper to bumper". A narrow passageway was left along the outside of the internal partition well which had been put up to form the work-room. Rolls of draylon, the material used to cover the suites of furniture, wasstored an two places in the storage area, and there were some also left inside the workroom.
Mr. Dillon arrived at the premises sometime after 9.00 a.m. on the Sunday morning, but he was not allowed inside until the following morning. What he found then lead him to the conclusion that some suites of furniture and rolls of draylon had been stolen, and a two door metal cabinet had been forced open and two ledgers taken. All over the area where the suites had been stored, he found metal no-sag springs which had remained after the suites had been burned. But in one area, which was of a size to have had two or three suites stored in it, there were no such springs. Between seven and nine rolls of draylon had been stored near the cooker at the west end of the building. There was no sign of any remains of these rolls. In any other place where they had been stored, the charred remains of the rolls had been found looking like burnt sausages. This was confirmed by photographs which were put in evidence. Finally, the cabinet, which the secretary Miss Comerford locked every night before leaving, was found open; invoices and files which had been in the cabinet were found scattered around; and two ledgers which had been in the cabinet were missing. In cross-examination Mr. Dillon agreed that he not reported the theft of the various items to the police.
Miss Comerford, who is the bookkeeper and secretary of the Applicant Company stated that on the Friday evening before the fire she had cleared her desk and locked everything away in the metal cabinet. She always did that. She Confirmed that the storage area was crowded with suites of furniture.
Professor Desmond McAleese inspected the premises at 2.00 p.m. on the 9th September. In his opinion the fire had started at thewest-gable end of the building, near the cooker. He considered that there had been a quick intense fire. If there had been a slow smouldering fire initially, he would have got a lot of soot deposit on the walls. There was no such deposit; the walls were clean. As the electric power to...
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