Murphy v Wexford County Council

JurisdictionIreland
Judgment Date07 February 1921
Date07 February 1921
CourtCourt of Appeal (Ireland)
Murphy v. Wexford Co. Council.
MURPHY
and
THE COUNTY COUNCIL OF WEXFORD (1)

Appeal.

Malicious injury - Damage to buildings - Owner in fee in possession -

Measure of compensation.

The measure of compensation for the malicious destruction of or injury to a building in the possession of a claimant as owner in fee is not necessarily the cost of the restoration or reinstatement of the building. The Court should award full compensation in moneys numbered for the injury or loss sustained by the owner, due regard being had to all the circumstances of the case, including the potential value, as well as the existing value, to the owner of the property destroyed or injured.

Case Stated at Wexford Summer Assizes, 1920, for the determination of the Court of Appeal by the Right Honourable Mr. Justice Gibson as follows:—

1. This appeal was by the applicant in respect of the malicious destruction of a police barrack at Ballybrazil, County Wexford, and was based on alleged insufficiency of the amount, £420, awarded by order of the County Court Judge, dated 17th June, 1920.

Mr. Mooney appeared for the appellant. The County Council were not represented.

2. The facts were as follows:—The barrack, which had been vacated on the 14th November, 1919, was burned on the 13th May, 1920. It is situated six miles from New Ross, and was included in the appellant's holding of seventy-three acres, held by him at a purchase annuity of £35 9s. 8d., payable to the Irish Land Commission, the date being 26th October, 1898. The barrack was let on 7th February, 1880, to Colonel Hillier, the then Inspector-General. The tenancy is still in being, the reversion being vested in the applicant. The expenditure necessary to

reconstruct the premises was estimated at £1,415 10s. I found as a fact that £1,200 would be the proper amount to be allowed if the compensation was to be assessed on the principle that the cost of rebuilding was the determining element.

3. Appellant's Counsel contended that the compensation should be assessed on the basis of such cost. I was of opinion that the rent paid for the barrack, £22 per annum, represented its full permanent letting value, for which no increase could be reasonably expected, and that, if the barrack was intact and uninjured, its saleable value, even if held in fee, considering the character and situation of the building, would not exceed the sum awarded. If £1,200 was allowed on the footing of rebuilding, the applicant would be a large gainer by the fire.

I had an appeal of similar type before me at Wicklow Summer Assizes (Hepenstall v. Wicklow County Council)(1), in which I have stated a ease setting forth fully therein the reasons of my conclusions, to which I refer. There were two other appeals at the Wexford Assizes, involving the same question, in which Patrick Byrne was appellant appearing, by the same counsel; and I have deferred my decision until the Court of Appeal should have determined the question on which Counsel said that previous Assize decisions had been given in accordance with his views. At his request I state this case.

4. The order under appeal, the instrument under which applicant holds, and the letting to the police authority, dated 7th February, 1880, are incorporated with and are to be read as part of this case. The question for the decision of the Court of Appeal is as follows:—Was the applicant entitled to have his compensation assessed on the basis that it was determined by the cost of rebuilding, irrespective of what the value of the premises was if the same had remained uninjured? If the question is answered affirmatively, the sum of £1,200 is to be substituted for £420 awarded by the order under appeal, with £13 10s. costs and £6 expenses. If answered negatively, the order is to be affirmed, without costs of appeal.

Sir James Campbell C.:

The applicant in this case is the owner in fee of a farm of land upon which there had been erected a suitable dwelling-house. Not requiring this house for his own accommodation or for use or occupation in connexion with the farm, he let it over twenty years ago to the crown for the purpose of a police barrack under a yearly tenancy, subject to an annual rent of £22, and to determination by a three months notice on either side. This tenancy continued until recently, when the house was maliciously burned to the ground, and the question for decision in these circumstances is as to the proper measure of compensation. InHepenstall v. Co. Council of Wicklow(3) one aspect of this question had to be considered in this Court in circumstances essentially different, as Mr. Brown, in his concise and clear argument, has frankly admitted, from those in the present case. There the applicant had let the house as a police barrack under a yearly tenancy upon the terms that she should keep the premises in repair; but her own title was that of lessee under a lease which at the date of the malicious destruction of the building had in fact expired, so that she was holding under an implied tenancy from year to year subject to the terms of the expired lease, one of which was that she was to keep and deliver up the premises in good repair. It was held by the majority in this Court that,

inasmuch as pursuant to this covenant she was liable to her own lessor for the cost of restoration, nothing short of this cost would or could adequately compensate her for the injury sustained, and that in all cases of this kind depending upon the lessee's unqualified covenant to deliver up in repair, the Court was not at liberty to enter into considerations or speculations founded upon the unsuitability of the premises for the lessor's purposes, even though it was proved that the vacant site would be more valuable to him than had the buildings remained intact upon it. Nor in such a case has the Court any right, as pointed out by Wright J., in giving the judgment of the Court in Joyner v. Weeks(1), to take into account that as the result of public...

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    ...v. Gery (1807) 14 Ves. 400. Morland v. Cook (1868) L.R. 6 Eq. 252. Moss v. Smith (1850) 9 C.B. 94. Murphy v. Wexford County Council [1921] 2 I.R. 230. Musselburgh Magistrates v. Musselburgh Real Estate Co. Ltd. (1904) 7 F. 308. Musselburgh Real Estate Co. Ltd. v. Provost of Musselburgh [190......
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    ... ... 225 , C.A ... Hepenstall v. Wicklow County Council [ 1921 ] 2 I.R. 165 ... Hinde v. Liddell ( 1875 ) ... He then quotes from the judgment of O'Connor L.J. in Murphy v. Wexford County Council [ 1921 ] 2 I.R. 230 , 240 and continues: ... ...
  • Philips v Ward
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    ...Moss v. Christchurch Rural District council, 1925 2 King's Bench, 270. It all depends on the circumstances of the case: see Murphy v. The County Council of Wexford, 1921 2 Irish Reports, 230. The general rule is that the injuredperson is to be fairly compensated for the damage he has susta......
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