Irish Rexi Mink Ltd v Dublin County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1972
• Date: 01 January 1972
• Docket Number: [D.299 of 1966]
• Court: Supreme Court

Supreme Court

[D.299 of 1966]

Rexi Irish Mink v. Dublin County Council

REXI IRISH MINK LIMITED, Applicant, and DUBLIN COUNTY COUNCIL

Respondents.

Criminal injury - Property - Animals - Injury to property - Captive mink - Malicious release of mink from their cages - Identity of animals lost for breeding purposes - Whether any injury to property - Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), ss.41, 51 - Local Government (Ir.) Act, 1898 (60 & 61 Vict. c. 37),s. 5.

Case Stated.

Section 41 of the Malicious Damage Act, 1861, provides that a person who unlawfully and maliciously kills, maims, or wounds any dog, bird, beast, or other animal not being cattle but being either the subject of larceny at common law or being ordinarily kept in a state of confinement or for any domestic purpose, shall on conviction thereof before a District Justice either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding six months.

Section 135 of the Grand Jury (Ireland) Act, 1836, states that:—"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, or of maliciously setting fire to, burning, or sinking any boat or barge laden with corn or other provisions, or of maliciously killing, maiming, houghing, or injuring any horse, mule, ass, or swine, or any horned cattle or sheep, or of maliciously damaging, injuring, or destroying any bank, gate, lock, weir, sluice, bridge, dam, or other work belonging to any person, public canal or navigation, the said grand jury shall on the consideration of the said matter either disallow such application altogether, or present such sum or sums of money as the person or persons so injured ought to receive for such injury or damage, to be levied off the county at large, or such barony, parish, district, townland, or sub-denomination thereof, as the grand jury shall direct."

Section 51 of the Malicious Damage Act, 1861, enacts that:— "Whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein-before provided, the damage, injury, or spoil being to an amount exceeding fifty1 pounds, shall be guilty of a misdemeanour. . ."

Section 5, sub-s. 1, of the Local Government (Ireland) Act, 1898, provides that:—"There shall be transferred to the county court the business of any presentment sessions and grand jury in relation to compensation for criminal injuries, that is to say, compensation under the enactments mentioned in Part One of the First Schedule to this Act, and of those enactments section one hundred and thirty-five and the following sections of the Grand Juries Act, 1836, so far as unrepealed, shall extend to the case of maliciously setting fire to, destroying, or injuring property of any

description, whether real, or personal, in like manner as they apply to the setting fire to, injuring, or destroying the particular descriptions of property specified in the first-mentioned section: Provided that this Act shall not extend the application of the said sections to any case except where the malicious act done was a crime punishable on indictment under the Malicious Damage Act, 1861."

Sub-section 2 of s. 5 of the Act of 1898 provides that:—"Upon an application for such compensation, the county court may either refuse the application, or make a decree against the county council, and, if the decree is made, shall have the power of a judge of assize under section one hundred and forty of the Grand Juries Act, 1836, with respect to the apportionment of the compensation." This jurisdiction is now exercised by the Circuit Court.

Section 6 of the Damage to Property (Compensation) Act, 1923, applied only to injuries to property which occurred after the 11th July, 1921, and on or before the 12th May, 1923, and in respect of which compensation could have been given under s. 135 of the Act of 1836 and s. 5 of the Act of 1898. Section 6 of the Act of 1923 provided that:— "The right to compensation under the Criminal Injuries Acts shall as respects any injury to which this Part of this Act applies be limited to compensation for the actual damage done to the property injured and shall not extend to any compensation for any loss consequential on such actual damage and in particular shall not extend to compensation for the loss of the use of the property injured or for the loss of mere pleasure or amenity."

The applicants appealed to the High Court from a decision of the Circuit Court refusing their application for compensation under s. 135 of the Act of 1836 and s. 5 of the Act of 1898. At the hearing of the appeal Henchy J. stated the following Case for the opinion of the Supreme Court.

"This is a Case stated by me pursuant to the provisions of section 38 of the Courts of Justice Act, No. 48 of 1936, at the request of counsel for both the above named applicants and respondents, whereon the opinion of the Supreme Court is sought on questions of law as hereinafter set out:—

1. This was an application by the applicants for £9,180 for compensation for alleged malicious damage on the 13th March, 1966, or early in the morning following, the 14th March, 1966, in the Parish of Swords, Townland of Barrysparks, Barony of Nethercross, and County of Dublin, caused by the releasing of 340 live mink animals from their cages at the mink farm of the applicants at Barrysparks, Swords, aforesaid.

2. The application was made in pursuance of the 135th section of the Grand Jury (Ireland) Act, 1836, and any Act amending same, and of the Local Government (Ireland) Act, 1898, and any Act extending or amending the same.

3. The premises, the property of the applicants, where the said mink were kept, and from which they were released, are shown on the map produced and proved in evidence before me. A copy of the map is annexed to and forms part of this Case Stated. The sheds in which the mink were kept on the mink farm are numbered 1 to 25.

4. The mink were kept in separate cages, one mink per cage, and the said cages were inside the sheds indicated on the plan referred to at paragraph 3 hereof. There were approximately 320 mink per shed.

5. A record is kept on a card affixed to each cage in respect of the mink in that cage, and this card contains full particulars of the breeding and mating of the particular mink. It is essential for breeding purposes to have this detailed information available in respect of each mink.

6. There had been a dispute involving some of the employees on the applicants' mink farm aforesaid shortly prior to the 13th-14th March, 1966.

7. Everything was in order in the sheds indicated on the map on the 12th and 13th March, but it was discovered in the morning of the 14th March, 1966, that some person or persons unknown had broken into the applicants' said premises and had released 340 live mink animals from their tabulated cages, and that the mink had escaped out of the sheds into the surrounding countryside. To gain access, the chain and lock on the entrance gate or door to the compound were forced open. The cages themselves could be opened easily and without force.

8. No person was apprehended in respect of the releasing of the mink, although intensive investigations and inquiries were made by the Garda Síochána.

9. Of the mink released, 245 were recovered alive, and 83 were recovered dead.

10. The sum of £9,180 claimed for compensation is the nett figure put by the applicants on loss suffered, allowing for a sum of £1,300 realised on the sale of the recovered mink which were not kept because it would not be possible to know which cage they came from, for without this knowledge it would not be profitable to retain them for future mating or any other breeding purposes. Furthermore, the price was affected by reason of the mink which were pelted having a spring, or summer, coat which is of much inferior quality to the autumn or winter coat in which they are normally pelted. It is not considered economic to keep mink for pelting purposes after they have escaped, as they are in poor condition, and usually exhausted, and do not justify the cost of feeding which is considerable. Furthermore, it is impossible to get mink to mate after they have escaped from their cages, and it is not possible to redeem the situation. If a mink is lost, that particular mink cannot be replaced, and one cannot buy mink up to the quality of home-bred mink.

11. Annexed to and forming part of this Case Stated is a transcript of a stenographer's note of the evidence heard by me, which I adopt as my note.

12. At the conclusion of the evidence for the applicants, counsel for the applicants and counsel for the respondents requested me to state a Case for the opinion of the Supreme Court, and to submit the following questions:—

• (a) Does the mere release of the mink without physical damage constitute malicious damage within the Malicious Injury Code mentioned in paragraph 2 hereof?

• (b) Is malicious damage to captive mink compensatable under the said Malicious Injury Code?

• (c) If the applicants are entitled to recover compensation for malicious damage, what is the proper basis for the assessment of the compensation payable?

Dated this 11th day of February 1969.

Seamus Henchy,

Judge of the High Court."

The applicants carried on business as breeders of mink for the fur trade. Each animal was housed and kept by the applicants in a separate cage in a shed. The applicants attached to the cage of each animal a card on which the particulars of the pedigree and mating of that animal were written. The breaking of the connection between a particular animal and its record card resulted in that animal having no value for breeding purposes. One night somebody broke into...