Mogul of Ireland v Tipperary (N.R) C.C.

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1976
Docket Number[S.C. No. 171 of 1974]
Date01 January 1976
Mogul of Ireland v. Tipperary (N.R.) C.C.
Mogul of Ireland Limited
Applicant
and
Tipperary (North Riding) County Council
[S.C. No. 171 of 1974]

Supreme Court

Criminal injury - Damages - Assessment - Whether applicant entitled to compensation for consequential loss - Supreme Court - Precedent - Stare decisis - Grand Jury (Ir.) Act, 1836 (6 & 7 Wm. IV, c. 116), s. 135 - Malicious Injuries (Ir.) Act, 1853 (16 & 17 Vict. c. 38), s. 1 - Local Government (Ir.) Act, 1898 (60 & 61 Vict. c. 37), s. 5.

Section 135 of the Grand Jury (Ireland) Act, 1836, has provided, since it was amended in 1899, that in all cases of malicious damage to the property specified in the section, where an application "for compensation in respect thereof" is made, the court may make a decree for such sum or sums of money "as the person or persons so injured ought to receive for such injury or damage." The Court of Appeal in Ireland held in Noblett v. Leitrim County Council[1920] 2 I.R. 143 that a court could award under s. 135 of the Act of 1836 a sum to compensate the applicant for consequential loss sustained by him; but in Smith v. Cavan and Monaghan County Councils[1949] I.R. 322 the Supreme Court overruled Noblett's Case and held that compensation for consequential loss could not be awarded under s. 135 of the Act of 1836.

Section 1 of the Malicious Injuries (Ireland) Act, 1853, provides that if any persons unlawfully assembled together shall maliciously damage or injure the property specified in that section "all damages which shall be so sustained" by any person by means of such unlawful acts shall be recovered "by like applications and proceedings . . . and subject to like provisions, and in like manner in all respects"as are provided in relation to an application for compensation pursuant to s. 135 of the Act of 1836.

By s. 5 of the Local Government (Ireland) Act, 1898, the provisions of the above sections were extended to property of every description, provided that the malicious act in question was a crime punishable on indictment under the Malicious Damage Act, 1861.

The applicants were a mining company which had suffered loss as the result of the deliberate detonation of explosives at its mine premises by an unlawful assembly of armed and masked men with the intention of damaging an electrical transformer. The applicants, having applied to the Circuit Court for compensation under either s. 135 of the Act of 1836 or s. 1 of the Act of 1853, proved a direct loss amounting to £29,218 and also a consequential loss amounting to £220,000. The Circuit Court judge stated a Case to the Supreme Court inquiring whether the applicants were entitled to be awarded compensation for the consequential loss sustained by them.

Held by the Supreme Court (O'Higgins C.J., Walsh, Budd, Henchy and Griffin JJ.), in answering in the negative the question of law contained in the Case, 1, that, in so far as the applicants' claim depended on the provisions of s. 135 of the Act of 1836, the question had already been answered in the negative by the decision of the former Supreme Court in Smith v. Cavan and Monaghan County Councils[1949] I.R. 322 and that, although it was not bound by the rule of stare decisis, the Court would follow that decision as the applicants had failed to establish that the decision was clearly wrong.

Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642 considered.

2. (O'Higgins C.J. and Walsh J. dissenting) That, in so far as the applicants' claim depended on the provisions of s. 1 of the Act of 1853, a consideration of the legislative genesis of the section and the textual evidence showed that the section applied the same measure of damages as was provided by the Act of 1836, despite the use of the phrase "all damages."

Case Stated.

On the 3rd July, 1971, a party of not less than six armed and masked men raided the applicant's mining premises near Silvermines, Nenagh, in the county of Tipperary and, using violence, overpowered security men and other employees of the applicant company. The armed men placed a number of explosive charges under the main electrical transformer at the premises and detonated the charges, thus causing serious damage to the transformer and terminating the applicant's mining activities for a period. The applicant applied to the Circuit Court (His Honour Judge Seán MacD. Fawsitt) at Nenagh for compensation pursuant to s. 135 of the Grand Jury (Ir.) Act, 1836. and s. 1 of the Malicious Injuries (Ir.) Act, 1853, as extended by s. 5 of the Local Government (Ir.) Act, 1898. At the hearing of the application on the 29th May, 1974, the Circuit Court judge (at the request of the applicant) stated a Case pursuant to s. 16 of the Courts of Justice Act, 1947, for the determination by the Supreme Court of the question whether the respondent county council was liable to pay the applicant compensation for the applicant's consequential loss arising from the explosion.

Paragraphs 5 and 6 of the Case were as follows:—

"5. I am satisfied that the applicant is entitled to recover from the respondents the sum of £29,218.20 in respect of the material damage as aforesaid and I agree to state this Case for the opinion of the Supreme Court on the questions of law whether. in addition, the applicant is entitled by reason of the provisions of s. 135 of the Grand Jury (Ireland) Act, 1836, s. 1 of the Malicious Injuries (Ireland) Act, 1853, and of any Acts extending the same and of the Local Government (Ireland) Act, 1898, to recover the sum of £220,000 consequential loss sustained by the applicant.

6. I ordered that the applicant should have carriage of this Case Stated and I did not attach any conditions as to the costs of the Case Stated.

I accordingly refer to the Supreme Court the said question of law referred to in paragraph 5 hereof."

The Case was signed by the Circuit Court judge and was dated the 22nd November, 1974.

Section 135 of the Grand Jury (Ireland) Act, 1836 (as amended) provides:—

"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, where an application for compensation in respect thereof is made, the county court may on the consideration of the said matter either refuse such application altogether, or make a decree for such sum or sums of money as the person or persons so injured ought to receive for such injury or damage."

The amendments to s. 135 of the Act of 1836 were made by the Statute Law Revision (No. 2) Act, 1888; the Statute Law Revision (No. 2) Act, 1890; section 110 of the Local Government (Ir.) Act, 1898; and by an Order in Council (S.R. & O. 1899, No. 44) made pursuant to s. 105 of the Act of 1898.

Section 1 of the Malicious Injuries (Ireland) Act. 1853 (as amended) provides:—

"If any persons in Ireland, unlawfully, riotously, or tumultuously assembled together, shall hereafter. unlawfully, wantonly, or maliciously destroy or demolish, or partially destroy or demolish, or otherwise damage or injure, any dwelling house, outhouse, warehouse, shop, or building, or any furniture, goods, chattels, or property therein, or any goods, chattels, or property, or any growing crop, produce, or article of any person or persons, wherever situate, all damages which shall be so sustained, by any person or persons, by means of such unlawful acts or offences as aforesaid. shall and may be recovered by like applications and proceedings, and by like presentments of the grand jury . . . and subject to like traverses. and subject to like provisions, and in like manner in all respects as by the Grand Jury (Ireland) Act, 1836, or by the County Dublin Grand Jury Act, 1844, respectively, is or are provided in relation to the application for or recovery of compensation for losses or damages sustained by any person or persons by means of the maliciously or wantonly setting fire to. burning. or destroying any house . . . or navigation; and the provisions of the said two last-mentioned Acts respectively, as the case may be, shall be accordingly applied for the recovery of compensation for damages sustained by means of any such unlawful acts or offences as are first enumerated in this Act as aforesaid."

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." The Act of 1853 is mentioned in Part 1 of the first schedule to the Act of 1898.

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...

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