Kennedy v Minister for Finance

• Jurisdiction: Ireland
• Judgment Date: 29 July 1925
• Date: 29 July 1925
• Court: Supreme Court (Irish Free State)

Kennedy v. Minister for Finance.

EUGENE KENNEDY

Applicant

The MINISTER FOR FINANCE, Respondent (1)

Supreme Court.

Malicious injury - Claim for compensation - Meadow grass cut and taken away - Injury to lands - Malice - Consequential damage - Larceny - Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 135 - Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), sect. 5, sub-sect.1 - Malicious Damage Act, 1861 (24 & 25 Vict. c. 97), sect. 51 -Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), sect. 6.

The Supreme Court held that sect. 6 of the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), forbids the awarding of compensation for "consequential loss," both of the type appearing in Noblett v. Leitrim County Council, [1920] 2 I. R. 143, and of the type appearing in the group of cases: Tyler & Sons v. Cork County Council, [1921] 2 I. R. 8; Kirby v.Kerry County Council, [1921] 2 I. R. 388; and Congested Districts Board v.Mayo County Council, 55 I. L. T. R. 4; so that the decisions in these cases as regards the measure of compensation under the Criminal Injuries Acts no longer represent the law. The effect of the section is to restore what was the true legal position, as regards the subject-matter in respect of which compensation is to be awarded, as it stood upon the enactment of sect. 5 of the Local Government (Ir.) Act, 1898 It is not the value of the spoil or plunder which is to be awarded, but compensation for the actual damage maliciously done to the property injured in the case of an unlawful and malicious spoliation within the meaning of sect. 51 of the Malicious Damage Act, 1861.

A case stated for the Supreme Court under the Criminal Injuries Acts stated that the grass of the applicant's meadow was cut and taken away, and the fences on his lands were maliciously damaged on a date within the period covered by Part II of the Damage to Property (Compensation) Act, 1923. There was no finding that the cutting or taking away of the grass was malicious, but it was admitted that both were unlawful:

Held by the Supreme Court that this admission, taken with the surrounding circumstances of fences found to have been maliciously injured on the same occasion, supplied, as regards the cutting of the grass, the omission from the case stated of an express finding that it was in fact malicious within the meaning of the Criminal Injuries Acts.

Held further, that the cutting and taking away of the grass of a meadow is different from the using of grazing lands as such, and may, according to the facts proved in a particular case, be a "spoiling" of property within sect. 51 of the Malicious Damage Act, 1861, entitling the owner to compensation under sect. 5 of the Local Government (Ir.) Act, 1898. But in order to recover such compensation the owner of the meadow must discharge the onus resting on him of proving destruction of or injury to his property, and he can only recover for the actual damage done to the property injured. As the applicant had not proved any injury to his property by the cutting of the grass, and as the taking away of the grass was not a subject for compensation, he was not entitled to any compensation for that part of his claim which related to the cutting and taking away of the grass.

Cahir v. Minister for Finance, [1925] 2 I. R. 150, distinguished.

Case Stated by Mr. Commissioner E. A. Swayne K.C., one of the Commissioners appointed under the County Court Appeals Act, 1924 (No. 57 of 1924), to hear appeals from the late County Court Judges remaining undisposed of at the time of the coming into operation of Part II of the Courts of Justice Act, 1924 (No. 10 of 1924).

The applicant, Eugene Kennedy, claimed compensation under the Criminal Injuries Acts as amended by the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), for damage to his property alleged to have been committed on November 1st, 1921. The applicant's case was that 36 acres of land and the growing produce thereon were maliciously spoiled, that fences and gates were broken, a hay-shed damaged, and a sheeprack destroyed, and timber cut. On June 23rd, 1924, County Court Judge Wakely awarded the applicant £180 compensation together with costs, and on March 30th, 1925, Mr. Commissioner Swayne affirmed that award.

The case stated by the Commissioner for the opinion of the Supreme Court was as follows:—

"The applicant claimed compensation under the Criminal Injuries Act in respect of damage to his land by breaking down fences and by cutting and taking away the grass of his meadow.

I found, as a fact, that his fences had been maliciously damaged, and awarded the sum of £32 as compensation for such damage. I further found that the grass of his meadow had been cut and taken away, as claimed, and that his loss in consequence of such cutting and taking away amounted to £150.

It was contended, for the respondent, that the cutting and taking away of the grass was consistent with the intention to steal, and did not amount to malicious injury under the Acts. It was further contended that even if the taking of the grass was held to be malicious, I was precluded by Section 6 of the Damage to Property (Compensation) Act of 1923 from awarding compensation for the loss resulting therefrom as such loss was in effect the loss of the use of the lands.

I awarded the applicant the sum of £180 in respect of the total damage to his lands, with £15 15s. 2d. for costs in the County Court, and £11 10s. for costs, and £2 for expenses on appeal.

At the request of the respondent I now state this case for the opinion of the Supreme Court of Justice as to whether I should have allowed any compensation in respect of that part of the claim which related to the cutting and taking away of the grass.

If the Court is of opinion that this part of the claim is unsustainable in law, the said decree for £180 is to be reduced by £148 to the sum of £32 with costs and expenses as before mentioned."

Cur. adv. vult.

Kennedy C.J. :—

This case comes before us on a case stated by Mr. Commissioner E. A. Swayne K.C., who was one of the Commissioners appointed under the County Courts Appeals Act, 1924 (No. 57 of 1924), to hear appeals from the late County Court Judges remaining undisposed of at the time of the coming into operation of Part II of the Courts of Justice Act, 1924 (No. 10 of 1924).

The claim of the applicant, Eugene Kennedy, was made under the Criminal Injuries Acts, as amended by the Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), for compensation for injury to his property, viz.: thirty-six acres of land and the growing produce thereon maliciously spoiled, fences and gates broken, hay-shed...