Shennick Lodge Ltd v Monaghan County Council

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 14 February 1986
• Neutral Citation: 1986 WJSC-SC 1474
• Docket Number: [S.C. No. 309 of 1985]
• Court: Supreme Court
• Date: 14 February 1986

SHENNICK v. MONAGHAN COUNTY COUNCIL

BETWEEN

SHENNICK LODGE TRADING AS WESTENRA ARMS HOTEL

Applicant/Respondent

and

THE COUNTY COUNCIL OF THE COUNTY OF MONAGHAN

Respondent/Appellant

1986 WJSC-SC 1474

309/85

THE SUPREME COURT

Synopsis:

MALICIOUS INJURIES

Malice

Proof - Statutory test - Whether damage caused maliciously - Whether damage caused in course of commission of a crime against the property damaged - Fire in hotel - Trespasser entering hotel to commit theft - Careless failure of trespasser to extinguish cigarette - Fire caused by trespasser's failure - Theft by trespasser of article in hotel - Fire started before theft - Theft by trespasser in hotel constituting crime of burglary under s.23A(1)(b) of Act of 1916 - Whether the burglary was a crime against the hotel premises - Test applicable - Held that the burglary was a crime against the hotel premises within meaning of s.5(2) of Act of 1981 - Held that the damage had been caused in the course of the commission of that crime - Case stated by High Court - Larceny Act, 1916, s.23A - Malicious Injuries Act, 1981, s.5 - (309/85 - Supreme Court - 14/2/86) - [1986] IR 442 - [1986] ILRM 273

|Shennick Lodge v. Monaghan C.C.|

WORDS AND PHRASES

"Crime against the property damaged"

Malicious injuries - Compensation - Proof of malice - ~See~ Malicious Injuries, malice - (309/85 - Supreme Court - 14/2/86) - [1986] IR 442 - [1986] ILRM 273

|Shennick Lodge v. Monaghan C.C.|

Citations:

CRIMINAL LAW (JURISDICTION) ACT 1976 S6

FITZGERALD V LIMERICK CORPORATION 1985 ILRM 445

LARCENY ACT 1916 S23a

LARCENY ACT 1916 S23a(1)(a)

LARCENY ACT 1916 S23a(1)(b)

MALICIOUS INJURIES ACT 1981 PART II

MALICIOUS INJURIES ACT 1981 S5(1)

MALICIOUS INJURIES ACT 1981 S5(2)

ROAD TRAFFIC ACT 1961 S112

1 JUDGMENT delivered on the 14th day of February 1986 by FINLAY C.J. [Nem diss]

2 This is a Case State by Barron J. during the course of the hearing by him of an appeal by the County Council against an award of £9,650 to the Applicant in respect of malicious injury made by the Circuit Court sitting at Monaghan.

3 The malicious injury claim concerned the burning of portion of a hotel and the following findings of fact were made by Barron J. in the Case Stated to this Court.

4 (a) Fergal Nixon entered the staff quarters of the hotel as a trespasser;

5 (b) He entered with intent to steal a tape recorder on the said premises;

6 (c) While on the premises he stole the tape recorder and a stereo cassette;

7 (d) The fire started because of his failure to put out a cigarette effectively;

8 (e) He did not intend to set fire to the bedroom or its contents; and

9 (f) His behaviour in failing to ensure that the cigarette had been put out was not wanton.

10 In the course of individual findings of fact the learned Judge hearing the appeal in effect found that the dropping of the cigarette and the failure to put it out effectively occurred before the intruder Fergal Nixon had found and stolen either the tape recorder or the stereo cassette.

11 Two questions were raised in the Case Stated and they are as follows

12 (a) Was the commission by Fergal Nixon of the crime a burglary, whether as defined by section 23A (1) (a), or by section 23A (1) (b) [of the having act 1916] a crime against the hotel premises?

13 (b) Was the fire damage to the hotel premises caused by Fergal Nixon in the course of the commission by him of the crime of burglary, whether as defined by section 23A (1) (a) or by section 23A (1) (b)?

14 The right to compensation for malicious damage to property is now contained in Part II of the Malicious Injuries Act 1981where, at section 5(1) it is provided that where damage, the aggregate amount of which exceeds £100, is maliciously caused to property, the person who suffers the damage shall be entitled to obtain compensation from the Local Authority in accordance with the Act.

15 For the purpose of that subsection it is provided by subsection (2) that damage shall be taken to be maliciously caused only if caused (a) by a wrongful act done intentionally without just cause of excuse, or (b) wantonly, or (c) unlawfully by three or more persons unlawfully, riotously or tumultously assembled together, or (d) in the course of, whether or not for the purpose of, the committing of a crime against the property damaged. From the findings contained in the Case Stated, it is clear that the Applicant can not bring himself within the definition of "maliciously" contained in either sub-paragraph (a), (b) or (c) of section 5(2) of the Act of 1981, but must, if he is to be entitled to compensation, be within sub-paragraph (d).

16 Section 23A of the Larceny Act 1916, which is inserted by section 6 of the Criminal Law (Jurisdiction) Act 1976, reads as follows:

17 2 "23A (1) A person is guilty of burglary if

18 (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2); or

19 (b) having entered any building or part of...