Riordan's Travel Ltd v Acres and Company Ltd

• Jurisdiction: Ireland
• Judge: Costello J.,McWILLIAM J.,McWilliam J.
• Judgment Date: 01 January 1979
• Neutral Citation: 1978 WJSC-HC 507
• Date: 01 January 1979
• Docket Number: 1036P/1974
• Court: High Court

1978 WJSC-HC 507

THE HIGH COURT

1036P/1974

RIORDAN's TRAVEL v. ACRES & CO. LTD

RIORDAN's TRAVEL LIMITED

and

RIORDAN's SHIPPING LIMITED

PLAINTIFFS

.v.

ACRES & COMPANY LIMITED, G. & T. CRAMPTONLIMITED

and

MATTHEW O'DOWN LIMITED

DEFENDANTS

1 JUDGMENT OF McWILLIAM J.DELIVERED THE 14th DAY OF NOVEMBER 1978

2 also 17.1.79

3 Although other forms of relief were claimed in the pleadings, this matter now comes before me on a claim for damages only.

4 The Plaintiffs are associated companies and in December, 1971, Riordan's Shipping Limited became the assignee of a term of years created by an Indenture of Lease made the 23rd day of June, 1964, between James Etchingham and James Edward Keane whereby a shop at No. 11, Lower Baggot Street was demised for the term of 21 years from 1st July, 1964, at the yearly rent of £225. The lease contained a convenant by the lessor to keep and maintain the roof and exterior of the premises in good and sufficient repair and condition and the usual convenant for quiet enjoyment. I have not been required to make any distinction between the individual interests of the two plaintiffs.

5 The Defendant, Acres & Company Limited, (hereinafter described as Acres), was at all relevant dates the successor in title of the said James Etchingham and the owner of an interest in the entire of No. 11, Lower Baggot Street. Acres also owned the adjoining premises at Nos. 9 and 10, Lower Baggot Street and had plans prepared for their demolition and for the development of the sites left vacant by the demolition. Acres has not been represented at or taken any part in theseproceedings.

6 Acres employed the Defendant, G. & T. Cramption Limited (hereinafter described as Crampton) to carry out this work under the direction of the architect employed by Acres.

7 Crampton employed the Defendant, Matthew O'Dowd Limited (hereinafter described as O'Dowd), to carry out the demolition work.

8 The Plaintiffs commenced a travel agency business in January, 1972, in the shop assigned to them as aforesaid. They had previously carried on a similar business in Limerick for a number of years but had there been principally engaged in the business of shipping and cruisingagents.

9 On 13th July, 1973, when the demolition and excavation workhad reached an advanced stage, the side of the premises at No. 11, Lower Baggot Street, collapsed so that the Plaintiffs were entirely deprived of the use of the premises and had some of their property damaged, or destroyed. They were reinstated in new apartments in the new building on the site of their old premises in January, 1975, eighteen months after the collapse of the old building. Their claim for damages falls under three headings. a. The value of the equipment damaged or destroyed. b. The rent of alternative accomodation from the time of the collapse until their return to the new offices. c. Loss of profits from being deprived of the use of their premises.

10 a. With regard to this part of the claim values were given for a large number of items but very few of them were actually vouched and, owing to the disturbance, no satisfactory records were kept. This makes it very difficult to make an accurate estimate of the loss under this heading. Doing the best I can I will allow the following items.

Olivetti adding machine	£20
Dictating machines	£35
Typewriter repaired	£50
Typewriter destroyed	£100

Addressograph	£17
Gestetner machine	£70
P.A.B.X.telephone system	£300
Front display window	£250
Burglar-proof window grill	£212
Shop sign	£106
Brochure display racks	£50
Filing cabinets	£50
Coffee table	£10
Stationery destroyed	£300
Signs for temporary premises	£36
Advertisements notifying change	£183
Sundry expenses connected with moves	£250

11 The total of these sums comes to £2027.

b. Apartments in Shelbourne Hotel	£291.68
Premises at 126 Lower Baggot Street	£7327.50
Rates on these premises	£334.40
Legal expenses	£44.00

12 The total of these sums comes to £7997.58

13 c. In order to calculate the loss of profits due todisturbances, evidence has been given on behalf of the Plaintiffs of a projection made in December, 1972, based on the business done during 1972, for the target for 1973. This projected an increase of 60% on the 1972 turnover. The turnover for 1972 is stated to have been£56,000. The Plaintiffs estimate their commission at 10% from which would have to be deducted all expenses in order to calculates the profits. The accounts produced are amalgamated with the Limerick accounts but I have been given evidence that the profits for 1973 on an actual turnover of £76,102 was £448. Had the projected target of £90,000 been reached, there would have been additional commission, at 10%, of £1390 and it is suggested that this would have been all profit as the overhead expenses would not have been increased by the extra business conducted. Further projections were made for the years 1974 and 1975 based on the original projection for 1973, and these made estimates for continued substantial increases in turnover with proportionately greater increases in profits. I am satisfied that there was a reduction in business due to the conditions under which the Plaintiffs had to work but there are too many imponderables, such as the increase in oil prices and resulting increases infares, for me to accept as accurate the figures presented on these projections. In the absence of any reasonably accurate method of estimating the losses, and looking at the increases in business actually achieved, I will allow a sum of £1000 for each of the first two years and a sum of £500 for the third year, i.e. a sum of£2500.

14 The total damages amount to a sum of £12,524.

15 I now come to the liability of the various defendants for payment of these damages. It has not been argued that any of the Defendants is not liable for the collapse of No. 11, Lower Baggot Street, but it is argued on behalf of Crampton and O'Dowd, and I have cogent evidence to this effect, that Crampton could have reinstated No. 11, Lower Baggot Street in anything from six weeks to three months from the date of the collapse and that they were ready to do so but that Acres seized the opportunity of extending the development by taking in No. 11 and refused to allow the work of reinstatement to commence. In the event, the evidence is that the new development of No. 11 was commenced and finished within three months. Whether the period be six weeks, eight weeks or three months, I am satisfied that any delay beyond this periodwas due to the refusal of Acres to permit the work of reinstatement to be done, and it is argued very strongly on behalf of Crampton and O'Dowd that they cannot be made liable for any loss arising from the Plaintiffs being kept out of their premises for longer than this period. In this connection I have been referred to section 11 of the Civil Liability Act, 1961. Subsection (1) provides as follows:- "For the purpose of this Part, two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this part called the injured person or the Plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them." Subsection (3) provides as follows:- "Where two or more persons are at fault and one or more of them is or are responsible for damage while the other or others is or are free from causal responsibility, but it is not possible to establish which is the case, such two or more persons shall be deemed to be concurrent wrongdoers in respect of the damage." It is argued that Crampton and O'Dowd are free from any causal responsibility for any loss occurring after the period within which they could have reinstated the property, and that thisis implied by subsection (3). I was not referred to any authority in support of this proposition and it seems to me that I have first to decide under subsection (1)...