O'Faolain v Dublin County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Lavan. |
| Judgment Date | 10 December 1996 |
| Neutral Citation | [1996] IEHC 41 |
| Docket Number | Appeal No. 90 CA/1995 |
| Court | High Court |
| Date | 10 December 1996 |
BETWEEN
AND
[1996] IEHC 41
THE HIGH COURT
Synopsis:
Torts
Malicious Injuries Act 1981, s.5(1)(c); application for compensation; damage to property; whether done by persons riotously assembled together Held: Compensation ordered. (High Court: Lavan J 10/12/1996)
O'Faoláin v. Dublin Corporation
Citations:
MALICIOUS INJURIES ACT 1981 S5(1)(c)
MALICIOUS INJURIES (AMDT) ACT 1986 S2(1)(a)(i)
DUGGAN V DUBLIN CORPORATION 1991 ILRM 330
FIELD V RECEIVER OF METROPOLITAN POLICE 1907 2 KB 853
SELLERS (RIBBLE SHIPPING CO LTD) V DONEGAL CO COUNCIL 1937 71 ILTR 43
MERCHANT SHIPPING ACT 1894 S5
This was an appeal from an Order of the Circuit Court dated the 13th day of February, 1995 whereby the said Court dismissed an application by the Applicant under the provisions of the Malicious Injuries Act,1981. The cause of action was for compensation pursuant to the provisions of the Malicious Injuries Act, 1981, Section 5(1)(c) as amended by the Malicious Injuries (Amendment) Act,1986, Section 2(1)(a)(i).
Both the Applicant and the Respondents furnished written submissions and these are annexed to my Judgment as Appendix I, being the Applicant's submissions and Appendix II, being the Respondents” submissions.
The Applicant seeks to recover under Section 5 as amended, for damages caused to his premises by four men removing goods as witnessed by Ms. Jeanie O'Haire standing at the door of her flat with her two children at 7 Alfie Byrne House, which is situated directly opposite the rear to the Applicant's premises, watching the men when one of them stared at her causing her to go back into her flat. The relevant terms of the Act allow compensation where damage, the aggregate amount exceeding £100 is caused to property "unlawfully by one or more of a number (exceeding two) of persons riotously assembled together".
"Riotously" has been given a restricted meaning, as from that assigned in ordinary parlance, by virtue of its conjunctive association with "tumultuously" in Section 6 of the 1981 Act. This was accepted inDuggan -v- Dublin Corporation, (1991) which case affirmed the five elements which must co-exist in order to constitute a riot as first enunciated inField -v- Receiver of Metropolitan Police, (1907), those elements being (i) presence of at least three persons; (ii) common purpose; (iii) execution or inception of the common purpose; (iv) intent by the persons present to help one another, by force if necessary, against any person who may oppose them in the execution of their common purpose; (v) force or violence, not merely used in demolishing property, but displayed in such a manner as to alarm at least one person of reasonable firmness and courage.
In the present case (i)-(iii) are established and Counsel for the Applicant relies on the evidence of Ms. O'Haire as fulfilling (iv) and (v). InSellers (Ribble Shipping Company Ltd.) -v- Donegal County Council, (1937) the Captain of a beached vessel withdrew due to the threatening manner of a crowd one of whom was thought to have verbally menaced him in a foreign (presumably Irish) language. The crowd in question was held to constitute "persons riotously and tumultuously assembled together" within the meaning of Section 515, Merchant Shipping Act, 1894, and compensation was allowed.
As regards (iv) Ms. O'Haire only gives evidence as to the reaction of one of the men who, given that he was being watched commit a crime, showed no sign of fear or attempt at desisting and instead stared at Ms. O'Haire in such a manner as to cause her to withdraw, it is reasonable to assume that had his stare not had the desired effect he might he supposed to have been willing to support it with verbal or physical action. In the absence of Statements to the contrary it is presumed that Ms. O'Haire is a person of reasonable firmness and courage, thus with regard to (v) as there is no mention of Ms. O'Haire witnessing any actual violence and no words were exchanged as in Sellers, the effect of the stare must be enough to infer a measure of violence displayed in same.
While the evidence is only in relation to one of the four men, since it is established that they were acting in concert, the witnessed behaviour can be considered as reflecting the common determination of the group. Considering the overall circumstances of the case and the fact that one must attribute the aforementioned meaning to the word "riot" and not that which is normally associated with this word, there is enough evidence to satisfy (iv) and (v), thus the Applicant's claim would seem to fulfil the necessary criteria under Section 5.
In order to succeed on the application, the Applicant must show that the damage was caused unlawfully by one or more of a number exceeding two of persons riotously assembled together: Malicious Injuries Act,1981, Section 5, as amended by the Malicious Injuries (Amendment) Act, 1986, Section 2. The evidence of Jeanie O'Haire is that she lived at 7 Alfie Byrne house directly facing the rear of the Applicant's premises. She saw four men removing goods. She was standing at the door of the flat watching them. She had two children. One of the men stared at her. The effect was to cause her to go back into her flat.
Prior to the Malicious Injuries Acts,1981and 1986, the words "riot" and "tumult" were treated as almost synonymous: John S. Sellers (Ribble Shipping Co. Ltd) -v- Donegal County Council, (1937) 71 I.L.T.R. 43 at 45. See also Criminal Injuries Kennedy and McWilliam page 37 - "it is not clear whether or not there is any significant distinction between a riot and a tumult".
There is now however a distinction between the two words by reason of the distinction drawn between the 1981 Act, Section 5, as amended by Section 2 of the 1986 Act and Section 6 of the 1981 Act as amended by Section 4 of the 1986 Act. Section 5 applies to where persons are riotously assembled and allows for compensation for damage caused to property. Section 6 applies where persons are tumultuously and riotously assembled and allows compensation not just in respect of damage but in respect of property taken.
Five elements are necessary for a riot:Field -v- Receiver of Metropolitan Police, (1907) 2 K.B. 852 approved inEdward Duggan -v- Dublin Corporation, 1991 I.L.R.M.330. The application here has shown compliance with the first three requirements namely:-
1. There were at least three persons involved.
2. They were apparently assembled for the common purpose of stealing from the Applicant's premises and damaging the same.
3. The common purpose was executed - the theft and the damage took place.
The issue accordingly revolves around the two remaining requirements for riot and in considering these, regard should be had to the meaning...
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