The Ballymagauran Co-Operative Agricultural and Dairy Society, Ltd, Applicants; The County Councils of Cavan and Leitrim, Respondents

JurisdictionIreland
Judgment Date18 December 1914
Date18 December 1914
CourtCourt of Appeal (Ireland)
The Ballymagauran Co-Operative Agrictultural and Dairy Society, Limited,
Applicants
and
The County Councils of Cavan and Leitrim,
Respondents (1).

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Local Government — Criminal Injuries — Compensation — Malicious Burning of Property — Owners insured against Loss by Fire — Right of Owners to recover off County — Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), s. 135 — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37) s. 5.

Upon an application under the Grand Jury (Ireland) Act, 1836, sect. 135, and the Local Government (Ireland) Act, 1898, sect. 5, for compensation for damage caused by the malicious burning and destroying of certain premises, the fact that such premises were insured against fire cannot be taken into consideration when assessing the amount of compensation to be recovered off the county by the owner of the premises.

Case Stated for the Court of Appeal by Lord Justice Holmes, as judge of assize in county Cavan, at the Summer Assizes, 1914, on the hearing of an appeal from the county court judge under the Local Government (Ireland) Act, 1898, sect. 5.

The facts of the case were set forth in the case stated as follows:—

“The application was for the sum of £400 as compensation for that some person or persons on the night of the 23rd March, 1914, or early in the following morning, did maliciously set on fire, burn, and destroy the Ballymagauran creamery; and the appeal to me was from a decree that the applicants were entitled to be paid the sum of £100 as compensation for the injuries complained of, £75 of which, with £7 1s. 4d. costs and expenses, were to be paid by the county council of Cavan, and £25 of which, with £2 7s. 2d. costs and expenses, were to be paid by county Leitrim.

From this decree both the applicants and respondents appealed.

After hearing evidence and counsel I formed the opinion that the burning was malicious, but that, assuming the applicants were entitled to compensation, the sum of £100 was too high, and ought to be reduced to £70. Furthermore, it appeared in the course of the hearing that the applicants, as owners of the premises described in the application, hold a policy or covering note against fire, dated the 14th day of March, 1914, from the Commercial Union Assurance Co., Ltd. This document was not produced, but it was admitted by counsel for the applicants that the property described in the application is assured against damage by fire to a sum far in excess of £100—I think the amount is £400—and that the instrument of assurance contains no clause or stipulation relieving the insurers in the case of loss by incendiarism, or imposing on the insured the obligation of seeking to recover compensation from the county for malicious injury. It was admitted that the insurance company was thoroughly solvent. I called attention to this, and said that it would be curious if a company which had received a premium for indemnifying the applicants against loss by fire should be relieved from its obligations by enforcing compensation from the rate-payers. I therefore adjourned the further hearing of the appeal to the following morning, so that counsel might refer me to the provisions of the statute, and authorities, if any existed. They were able to give little or no assistance. Mr. Justice Andrews had decided that the insurance company was not authorized by the statute to claim compensation in its own name, and this decision seems to have since been followed; but the point that the applicant was insured seems never to have been raised or argued, except that on one occasion Lord O'Brien, prior to the passing of the Act of 1898, ruled that the owner of the property was entitled to recover under the Grand Jury Acts, although he had been paid the money for which it was insured.

On my intimating that I would feel myself obliged to dismiss the application, I was asked by the applicants to state a case, which I consented to do on the admission relating to the insurance made by the applicants' counsel, which I have set forth herein.

The question reserved is whether, notwithstanding the insurance, the applicants are entitled to succeed in their application.

“If the reply is in the affirmative, the sum to be paid as compensation shall be reduced to £70, of which the sum of £52 10s. is to be paid by the County Cavan, and £17 10s. by County Leitrim, and, as both parties appealed, no order as to costs.

If the reply is in the negative, the decree shall be reversed, with £2 10s. costs below, and £9 14s. costs of appeal.”

Dickie K.C. (with him Wood), for the Ballymagauran Creamery Company:—

The fact that an owner of premises which are maliciously burned has paid insurance premiums in respect of them cannot deprive him of his right to recover compensation off the county, where, apart from the insurance, such right would be unquestionable. If the insurance could be taken into account, it would mean that there must be an inquiry in every case to ascertain whether the insurance fully covered the loss. The words of the section show that the right of the owner is absolute, and not dependent on any question of insurance. Sect. 135 of 6 & 7 Will. 4, c. 116, provides that “in all cases of maliciously … burning or destroying any house, outhouse, or other building … the said grand jury shall, on the consideration of the said matter, either disallow such application altogether, or present such sums of money as the person or persons so injured ought to receive for such injury or damage.” The words “person or persons injured” mean the persons whose property has been maliciously injured, as between them and the county. They “ought to receive” such sum as the grand jury find represents the amount of damage to the property. If any person damages the property of another, the owner, whether insured or not, could sustain an action against the wrongdoer to recover the amount of the damage; and it is submitted the present case is exactly on the same footing. Fire insurance is merely an indemnity or suretyship, and an insured owner of property which has been unlawfully burned by another may bring an action against the wrongdoer to recover the amount of the damage, notwithstanding that he has been paid by the insurance company, though he would be obliged to pay over to the company any sums recovered in such action. The precise point in this case was raised in Jones v. Corporation of Belfast (1); and Lord O'Brien L.C.J. decided that the fact that the applicant was insured did not relieve the corporation from their liability to pay. No reasons are given in the judgment, and the opposite view appears to have been regarded as unarguable. The policy of the Act supports the contention on behalf of the owner. It was to make the inhabitants of the county diligent in discovering persons who committed the wrongs dealt with in the Act, and in bringing the offenders to justice; and it did this by making the county liable where the offenders were not discovered.

[He referred to Phoenix Assurance Co. v. Spooner (2); and Assicurazioni Generali de Trieste v. Empress Assurance Corporation, Limited (3).]

Henry K.C. and Wylie K.C. (with them Murnaghan), for the county councils:—

What the person injured ought to recover is the actual loss he has sustained. The words of sect. 106 of the Act should be compared with the section in question here. Section 106 provides that compensation shall be paid by the county where peace officers have been maimed or murdered in the execution of their duty, and proceeds:— “It shall and may be lawful to and for the grand jury of the county within which such murder or maiming shall have been committed respectively to present such sum or sums of money as they shall think just and reasonable to be paid to the personal representative of such … peace officer.” There is no difference between “just and reasonable” in that section, and “ought” in the section applicable to this case. The fair and reasonable sum is the sum that compensates his actual loss. In neither of these two sections is there any indication of obliging full compensation to be given, and of making the Court merely the machinery for ascertaining the amount of damage that has

been sustained: Re Serjeant Nolan (1); English v. Co. Council of Kerry (2). The limiting words “ought” and “fair and reasonable” have practically the same effect as the words in Lord Campbell's Act (9 & 10 Vict. c. 93), sect. 2, “injury resulting from such death,” and before the Act of 1908 the amount of an accident policy was applied in reduction of the compensation awarded under that Act. It was decided by the Privy Council in Grand Trunk Railway Co. of Canada v. Jennings (3) that compensation under that Act was restricted to the actual pecuniary loss sustained by the plaintiff. In the older Acts relating to compensation the words were different. In 7 Wm. 3, c. 21 (Irish), the words in the preamble were— “shall make full amends.” Similar terms were contained in 19 & 20 Geo. 3, c. 37 (Irish), which was the statute in force prior to the Grand Jury Act, 1836; and in the English Act, 7 & 8 Geo. 4, the Act in force prior to the Riot Act, 1886. The words were “full compensation.” Before the Grand Jury Act, 1836, the application for compensation in a case like the present was by action, in which the ratepayers were in the position of trespassers, and the compensation was not limited to actual loss; but the present procedure is quite different, the ratepayers are no longer in the position of trespassers. This fact, coupled with the use of the word “ought,” shows that the liability of the rate-payers is limited to the pecuniary loss sustained by the applicant. It is for this reason Mason v. Sainsbury (4) does not apply; if the county councils were in the position of...

To continue reading

Request your trial
11 cases
  • Doyle v Wicklow County Council
    • Ireland
    • Supreme Court
    • 14 December 1974
    ...accountable to the insurer for all moneys received in excess of an indemnity. Ballymagauran Co-operative Society v. Cavan County Council [1915] 2 I.R. 85 approved Doyle v. Wicklow County Council JOSEPH DOYLE, Applicant, and THE COUNCIL OF THE COUNTY OF WICKLOW Respondents. [S.C. No. 4 of 19......
  • Hutch v Dublin Corporation
    • Ireland
    • Supreme Court
    • 1 January 1993
    ...ACT 1981 S12(1) BANCO AMBROSIANO V ANSBACHER & CO 1987 ILRM 667 CO-OPERATIVE AGRICULTURAL & DAIRY SOC V CAVAN & LEITRIM CO COUNCIL 1915 2 IR 85 COKE 2ND INSTITUTE 170 STATUTE OF WINCHESTER 13TH ED 1 ST 2 CH 2 POYNINGS ACT GRAND JURY (IRL) ACT 1836 LOCAL GOVT (IRL) ACT 1898 ENGLISH V KERRY C......
  • Worthington v Tipperary County Council
    • Ireland
    • Court of Appeal (Ireland)
    • 27 February 1920
    ...Campbell C., and Ronan and O'Connor L.JJ.,by whom it was adjourned for consideration by the full Court. (1) [1902] P. 42, at p. 60. (2) [1915] 2 I. R. 85, per Palles C.B., at p. 100. (1) [1919] 2 I. R. 115. (2) 27 I. L. T. R. 116. (3) 31 I. L. T. R. 215. (4) [1919] 1 K. B. 443. (5) 5 Taunt.......
  • Noblett v Leitrim County Council
    • Ireland
    • Court of Appeal (Ireland)
    • 1 January 1920
    ...(1) 34 I. L. T. R. 116. (2) 10 Jur. N. S. 160. (3) 6 Cox, 370. (1) 1 N. I. J. 146. (2) 10 Jur. N. S. 160. (3) 34 I. L. T. R. 116. (4) [1915] 2 I. R. 85. (5) 2 Wils. 91. (6) 3 Doug. 61. (1) 7 H. & N. (2) 34 I. L. T. R. 76. (3) 35 I. L. T. R. 203. (1) 34 I. L. T. R. 116. (2) 10 Jur. N. S. 160......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT