Hosie v Kildare County Council

• Jurisdiction: Ireland
• Judgment Date: 05 November 1928
• Date: 05 November 1928
• Court: Supreme Court (Irish Free State)

Hosie v. Kildare Co. Council.

HENRY J. HOSIE, Committee of the Person and Estate of HENRY HOSIE, a Lunatic

Applicant

and

THE COUNTY COUNCIL OF KILDARE AND ATHY (No. 1) RURAL DISTRICT COUNCIL, Respondents (1)

High Court.

Supreme Court.

Malicious injury - Injury to the person - Lunacy supervening - Claim for compensation by Committee of lunatic - Extension of time for lodging claim - Repeal of statute - Retrospective effect - Grand Jury (Ir.) Act,1836 (6 & 7 Wm. 4, c. 116), sects. 106, 137 - Interpretation Act, 1889 (52 & 53 Vict. c. 63), sect. 38, sub-sect. 2 - Criminal Injuries (Ir.) Act,1919 (9 Geo. 5, c. 14), sect. 1 - Criminal Injuries (Ir.) Act, 1920 (10 & 11 Geo. 5, c. 66), sects. 1, 2, 3, 4, 6, 7 - Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), sects. 1, 17, 21, 22, 23.

On the 4th October, 1918, the house of H. H. was raided by armed men. In resisting the raiders, H. H. sustained an injury to the head. After a fortnight in bed, he was able to move about, but mental trouble supervened, and in 1922 he became insane, and on April 27th, 1923, he was declared a lunatic. It was not until the passing of the Criminal Injuries (Ir.) Act, 1920, on December 23rd, 1920, that a claim for compensation for such an injury could be sustained. That Act, as well as the Criminal Injuries (Ir.) Act, 1919, was repealed by the Damage to Property (Compensation) Act, 1923, passed on May 12th, 1923. On July 21st, 1923, a preliminary notice for compensation was served by H. J. H., the Committee of H. H.'s person and estate. In December, 1924, an application was made to the Circuit Court Judge to extend the time for making an application for compensation under the provisions of sect. 6 of the Criminal Injuries (Ir.) Act, 1920, and this application was granted; and on March 7th, 1925, the Circuit Court Judge awarded the applicant £5,000 compensation.

Held by the High Court:—1, that it was just and reasonable to grant the extension of time for making the application for compensation; 2, that, on the evidence, the insanity of H. H. at the date of the application for compensation was due to the injuries inflicted and the excitement caused by the raid; 3, that the repeal of the Criminal Injuries Acts of 1919 and 1920 by the Damage to Property (Compensation) Act of 1923 was not retrospective; 4, that, notwithstanding such repeal, H. H. had such "rights" or"privileges" as were preserved by sect. 38, sub-sect. 2 (c), of the Interpretation Act, 1889, i.e., a right to apply for an extension of time for making an application for compensation; and, on obtaining same, a right to make such latter application; 5, that it was not an essential preliminary to the acquisition of such a right that proceedings should have been instituted to recover such compensation; 6, that the objection that the Committee of H. H. was not entitled to make the application for compensation ought not to be entertained by the Court, it not having been raised before the Circuit Court Judge, and being a mere technicality; 7, that the amount awarded was not unreasonable; and accordingly the award was affirmed.

Held by the Supreme Court (reversing the High Court, and without dealing with any of the other points raised), that the claim for compensation could not be sustained, as the Criminal Injuries Acts of 1919 and 1920 were retrospectively repealed by the Damage to Property (Compensation) Act, 1923; that by necessary implication there appeared in the Act of 1923 "the contrary intention" contemplated by sect. 38 of the Interpretation Act, 1889, which prevented the preservation of any right or privilege acquired or secured under the repealed Act of 1920; and accordingly the full legal effect of repeal must follow, viz.: that the Act of 1920 must be taken to have been obliterated from the Statute Book in cases where, as here, proceedings were not commenced, prosecuted, and concluded while the Act of 1920 was in force.

Kay v. Goodwin, 6 Bing. 576, applied.

Appeal from the Circuit Court.

The respondents appealed from a decision of Circuit Court Judge Doyle, awarding to Henry J. Hosie, the Committee of the person and estate of Henry Hosie, a lunatic, the sum of £5,000 compensation for criminal injury to the person of the said Henry Hosie, sustained by him on October 4th, 1918.

On the night of October 4th, 1918, Mr. Henry Hosie's house was invaded by four armed men. Mr. Hosie offered resistance, and ultimately ejected the men. In the struggle he received a wound in the head. He was attended by Dr. Jeremiah O'Neill, and confined to bed for a fortnight. According to the doctor's evidence, he was in a nervous condition all the time. At the end of the fortnight he was able to move about and attend, to a slight extent, to his farm business. Dr. O'Neill attended him at intervals during the next two years. During that time his condition was indifferent, and at the end of two years the doctor noticed a change. His manner was not his old manner. In 1921 Mr. Hosie said to him: "I have been asleep for two years, and have just wakened up." He began to entertain delusions, and in September, 1922, Dr. O'Neill advised removal to a mental institution. He attributed Mr. Hosie's condition to the blow on the head and the mental disturbance caused by the raid.

On September 15th, 1922, Mr. Hosie was given into the charge of Dr. Eustace, the proprietor of a home for the mentally deficient at Hampstead. From the history he had got of the case, Dr. Eustace came to the conclusion that Mr. Hosie suffered physical and mental shock consequent upon the raid, and that the delusional stage developed as a secondary phenomenon of that shock.

On April 27th, 1923, Mr. Hosie was declared a lunatic, and Mr. Henry J. Hosie was appointed Committee of his person and estate. On July 21st, 1923, preliminary notice of application for criminal injury to the person of Henry Hosie arising out of a combination of a seditious character or an unlawful assembly was served by "Henry J. Hosie, Committee of the person and estate of the said applicant, Henry Hosie, now a lunatic" (1).In December, 1924, the Circuit Court Judge made an order under sect. 6 of the Criminal Injuries Act, 1920 (10 & 11 Geo. 5, c. 66), extending the time for making an application for compensation, and on March 7th, 1925, he awarded the applicant

£5,000 compensation. The further facts are set out in the judgment of Sullivan P.

The County Council appealed to the Supreme Court (1).

Cur. adv. vult.

Sullivan P. :—

This is an appeal by the County Council of Kildare from the decision of Circuit Judge Doyle, awarding to Henry J. Hosie, the committee of the person and estate of Henry Hosie, now a lunatic, a sum of £5,000 compensation for criminal injuries to the person of the said Henry Hosie, sustained by him on the 4th October, 1918.

It appears from the transcript of the evidence that on that date Henry Hosie's home was raided by armed men; he courageously attacked the raiders and drove them out of the house, but in the course of so doing he was struck on the head and seriously wounded. He was attended by Dr. O'Neill, and remained in bed for about a fortnight in a nervous condition. After that he was able to go about as usual, but he gradually became indifferent to his business, and after some time there were indications of mental trouble. Subsequently, in the year 1921, he began to suffer from delusions, and in September, 1922, he became obviously insane, and was put under the care of Dr. Eustace. On the 27th April, 1923, he was declared a lunatic, and Henry J. Hosie was appointed committee of his person and estate. On the 21st July, 1923, a preliminary notice of application for compensation was served by Henry J. Hosie as such committee. In December, 1924, an application was made to the Circuit Court Judge to extend the time for making an application for compensation, in exercise of the powers conferred upon him by sect. 6 of the Criminal Injuries (Ir.) Act, 1920. This application was granted, and the claim was heard in March, 1925, when the award appealed from was made.

The case was most fully and ably argued before us. Mr. Shannon, in his argument on behalf of the appellants, impeaches the award on seven different grounds. The first ground relied on was that the Circuit Judge should not have extended the time for making the application for compensation, there being, as counsel argued, no sufficient reason for granting such extension. In order to appreciate this argument it is necessary to bear in mind that, though the injuries were inflicted in October, 1918, no claim for compensation in respect thereof could be maintained under the then existing law. It was not until the scope of sect. 106 of the Grand Jury (Ir.) Act, 1836, had been extended by the Criminal Injuries (Ir.) Acts, 1919 and 1920, that Henry Hosie could recover any compensation for injuries inflicted on him when the crime arose out of an unlawful, assembly. It was not, therefore, until 23rd December, 1920, the date of the passing of the Criminal Injuries (Ir.) Act, 1920, that any proceedings could be taken by Henry Hosie. Sect. 6, sub-sect. 2, of that Act confers upon the Court or Judge power to extend or vary the time prescribed by any statute or statutory rules for making an application for compensation for criminal injuries, or for serving any notice, or for doing any other act, or taking any proceedings in relation to the application in any case where it appears to the Court or Judge that such extension or variation is just and reasonable for any cause whatsoever. At any time after 23rd December, 1920, it was, therefore, open to Henry Hosie to make an application to the County Court Judge under that section to extend the time for making an application for compensation. Admittedly, he did not do so. It was not until 1923 that any legal proceedings were taken in respect of Henry Hosie's injuries. Prior to that date, viz., on 15th...