Kennedy v Tipperary County Council (North Riding)

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 20 February 1998
• Neutral Citation: 1998 WJSC-SC 8744
• Docket Number: [S.C. No. 218 of 1997],(218/97)
• Court: Supreme Court
• Date: 20 February 1998

1998 WJSC-SC 8744

THE SUPREME COURT

Hamilton C.J.

O'Flaherty J.

Lynch J.

(218/97)

KENNEDY v. TIPPERARY (NORTH RIDING) CO. COUNCIL

AN CH ÚIRT UACHTARACH

IN THE MATTER OF THE MALICIOUS INJURIES ACT, 1981, SECTION 18(I)(a)

BETWEEN:

MICHAEL KENNEDY

Applicant

.V.

THE COUNCIL OF THE COUNTY OF TIPPERARY (NORTH RIDING)

Respondent

Synopsis

Criminal

Malicious injuries claim; compensation; damage; riot; elements of riot; whether intention to use force in exercise of common purpose; whether this element of riot present in instant case; s.18(1)(a) Malicious Injuries Act, 1981 Held: For trial judge to determine whether such common purpose existed (Supreme Court: Hamilton C.J., O'Flaherty J., Lynch J.20/02/1998) - [1998] 1 IR 96

Kennedy v. Tipperary County Council

1 Judgment delivered on the 20th day of February, 1998, by O'Flaherty J. [NEM

2 This is a case stated by His Honour Judge Sheridan, then a judge assigned to the south-eastern circuit (now President of the Circuit Court), sitting at the Circuit Court at Clonmel, Co. Tipperary, pursuant to the provisions of s. 18 (l)(a) of the Malicious Injuries Act, 1981, raising a question of law for the opinion of the Supreme Court. On the 14th February and 8th March, 1996, the learned judge was engaged in hearing an appeal in respect of a malicious injuries claim from Thurles District Court. It appears that the applicant claimed compensation for damage done on the 29th August, 1993;at Kickham Street, Thurles, to his motor car. The application was brought under s. 5(1)(a) of the Malicious Injuries Act, 1981, as inserted by s. 2 of the Malicious Injuries (Amendment) Act, 1986.

3 The damages were agreed at £1,409.00. It was common case that in order for the applicant's claim to succeed it would be necessary that he establish that the damage was caused in the course of a riotous assembly. The evidence of Mrs Mary Egan was accepted by both parties and the learned judge has summarised her evidence as follows:-

"That on the night of the 18th of March, 1994, she had been asleep in her house at Kickham Street, Thurles, across the road from which the applicant's car was parked. She was awakened by a loud noise and banging outside her house. When the noise continued for some time she got up and went to the window and looked out and saw three or four men pushing the applicant's car across the road into a wall on her side of the road. She saw one or more of them standing against the railings of the Pallotine College and then running at the car and kicking it. She said the noise continued for some time to such an extent that she was frightened and she telephoned the Gardai. She said that she was so alarmed and frightened by the behaviour of the men that she decided not to waken her husband who was at that time asleep in their house as she believed he would have been placed in danger if he had sought to intervene to persuade them to desist. She said that she was also concerned for the safety of elderly residents of the area where the car was being damaged."

4 Section 5 of the 1981 Act (as inserted by s. 2 of the 1986 Act) provides, in so far as is relevant:-

"(1) (a) Subject to the provisions of this section, where damage the aggregate amount of which exceeds £100 is caused to any property-"

(i) unlawfully by one or more of a number (exceeding two) of persons...