Tyler & Sons v County Council of Cork

• Jurisdiction: Ireland
• Judgment Date: 22 November 1921
• Date: 22 November 1921
• Court: Court of Appeal (Ireland)

Tyler v. Cork Co. Council

TYLER & SONS

and

COUNTY COUNCIL OF CORK (1)

Appeal.

Malicious injury - Riot - Shop demolished - Stock-in-trade thrown into street - Larceny by third parties - Right to compensation for loss of stolen goods.

During a riot a number of soldiers demolished the shop-front of the respondent's premises, and flung a quantity of the stock-in-trade, consisting of boots, into the street. The rioters had no intention of committing, and did not commit, a larceny; but quantities of the boots were stolen by unascertained persons, who took the opportunity of plundering during the confusion caused by the riot. The respondents claimed compensation for the loss of the stock-in-trade stolen, as well as for the damage to their premises. On case stated it was found as a fact that the loss of the stock-in-trade by larceny was an immediate result of the wrecking of the premises by the rioters, and the scattering about and exposure of the goods partly in the shop and partly in the public street.

Held (O'Connor L.J. dissenting), that the entire injury was the direct result of the action of the rioters, whose sole and dominating motive was to injure property; that the larceny was the natural and probable consequence of the malicious act of demolishing the shop and scattering the goods, and that the respondents were entitled to compensation for the loss of the stolen goods.

Case Stated by Mr. Justice Samuels at the Cork Spring Assizes, 1920, under sect. 5 of the Local Government (Ireland) Act, 1898.

1. The applicants and appellants, John Tyler & Sons, Ltd., who carry on business at Fermoy, in the Co. of Cork (among other places), as retail boot-sellers, claimed £1,120 5s. 9d. for malicious injury to their premises and stock-in-trade on the 8th September, 1919.

2. The learned Recorder of Cork, sitting at Fermoy as County Court Judge for the Midleton Division, awarded the applicants the sum of £157 12s. 6d. by a decree of 23rd October, 1919. This sum admittedly represented the amount of damages to the premises of John Tyler & Sons, and to a certain portion of their stock-in-trade, which was forthcoming, but had been injured.

The claim of Messrs. Tyler for the total loss of a large quantity of trading stock, which was not forthcoming, was rejected by the learned Recorder.

From this decision Messrs. Tyler & Sons, Ltd., appealed.

They also claimed on the appeal £20 for consequential damages for loss of profits during the period their shop was closed pending repairs. No question arises as to this sum.

3. The following facts were proved or admitted before me:— On Sunday morning, 7th September, 1919, a number of soldiers, when about to enter their place of worship in Fermoy, were attacked and fired upon by a body of civilians. Several of the soldiers were wounded, and one of them was murdered. On the following Monday evening, 8th September, 1919, about 9 p.m., a large number of soldiers, by way of retaliation, riotously attacked the premises of several traders in Fermoy, including those of Messrs. Tyler & Sons, Ltd., and scattered their stock-in-trade, which in one instance was that of a jeweller, about the street. The front windows of Messrs. Tyler's establishment were practically demolished. The shop fittings were broken and damaged, and their premises were thus left open to depredation. A very large amount of the stock-in-trade was scattered about, and heaped up in confusion, and trampled on in the shop, and a quantity of boots were flung out on the streets and into neighbouring establishments by the rioting soldiers. Some of the articles were subsequently recovered, having been brought back by the Royal Irish Constabulary and by the Christian Brothers, while odd boots were returned by various neighbouring traders, into whose premises they had been flung; but boots of the estimated value of £930 disappeared, and have never been recovered.

4. Messrs. Tyler's premises had to be closed for one week owing to their being wrecked, and I found that a consequential trading loss of £20 was thus incurred.

I assessed the physical damages done to the premises and to that portion of the stock-in-trade which was recovered at £157 12s. 6d., the same figure as that awarded by the learned Recorder.

5. I found as a fact that the demolition of Messrs. Tyler's shop front and the scattering of their stock-in-trade was effected by the soldiers in the course of the riot, but that they had no intention of committing any larceny of the stock-in-trade, nor did the soldiers steal any of it. There was no evidence given by the applicants as to what actually took place during the riot, but, having regard to the way the goods were found thrown about and the means through which portion of the stock was restored and recovered, I came to the conclusion of fact that the missing articles were stolen by unascertained persons other than the rioting soldiers, who took the opportunity of plundering during the confusion caused by the riot, and I found that a loss of stock-in-trade to the amount of £822 7s. 6d. was thus caused to Messrs. Tyler & Sons as an immediate result of the wrecking of their premises by the rioting soldiers, and the scattering about and exposing of their goods partly in the shop and partly in the public street.

6. I awarded Messrs. Tyler & Sons, Ltd., £822 7s. 6d. as compensation for loss of stock-in-trade made away with under the circumstances above stated, making, together with the said sum of £157 12s. 6d. and £20, a total award of £1,000.

7. The question for the Court is: Are the applicants entitled to be awarded compensation for the loss of that portion of their stock-in-trade which was stolen by unknown persons other than the rioters, but was left open to depredation as an immediate consequence of the acts of the rioters?

8. If the answer is in the affirmative, the decree of the learned Recorder is to be increased to £1,000, with costs of appeal measured at £31 10s. 0d.. If the answer is in the negative, the decree of the Recorder is to be increased by £20, making a total award of £177 12s. 6d., but without any costs of the appeal.

9. The area of levy fixed by the learned Recorder is in any event to be varied by adding to the districts thereby made liable the urban district of Youghal.

The notice of application, the decree, and the notice of appeal are to be taken as incorporated with this case.

At the opening of the case, Sir James Campbell C. said:— The Bar and many Judges have been under the impression that Judges of Assize have power under the Malicious Injuries Code to state a case without deciding it. That is not so. They must decide it, and then, if there is a question of law, they may give leave to appeal by way of case stated.

Sir James Campbell C. :—

Upon the night in question a number of soldiers, breaking loose from their traditional discipline in circumstances which I need not elaborate, engaged in a riotous attack upon certain premises in the town of Fermoy. Claims for compensation under

the Criminal Injuries Code followed, the claimants including Tyler and Sons, the well-known boot manufacturers, who claimed in respect of malicious injury to their premises and their stock-in-trade. This unlawful assembly of soldiers invaded the building, smashing doors and windows, and then proceeded to destroy the fittings and goods, trampling a portion of the latter under their feet, and hurling the remainder into the street, from which they quickly disappeared, being raided and looted by persons, if not unknown, at least undetected. No question has been raised as to the right of Messrs. Tyler in these circumstances to an award of compensation or damages in respect of the injury to their premises, and the portion of their stock which was thus destroyed or damaged, but the matter in controversy is as to the balance of the stock which was looted in the circumstances described. Part of the stock was subsequently restored to the owners through the efforts of the local clergy, but the extent and nature of the depredations become manifest by the undisputed value, over £800, which has been placed upon the remainder, which has never been recovered.

Samuels J., by whom this case has been stated, has found as a fact that the looting of these boots was not only the immediate consequence of this riotous and unlawful assembly, but was the result actually contemplated and designed by the parties who originated it. I might say of these findings "res ipsa loquitur,"but in any event they are binding upon this Court, and dispose of all requirements as to whether the subsequent looting was or was not the natural or direct consequence of the previous riot. To quote the words of Lord Lindley from his judgment in Quinn v.Leatham(1): "The intention to injure the plaintiff negatives all excuses, and disposes of any question of remoteness of damage."The right to consequential damages would be of little value if it did not at least include compensation for all loss and injury which the malfeasor contemplated and intended, and which in fact occurred. Speaking for myself, I have no intention of reconsidering this question of consequential damage in its application to cases under our Criminal Injuries Code. This Court has deliberately disposed of it in Noblett's Case(2), following and applying

its previous decision in the Ballymagauran Case(1), and our judgment in the former case was subsequently justified by the concurrence of the Chief Justice and the Master of the Rolls inWorthington's Case(2). Nor can I attach any importance to the contention that insmuch as the boots for which the claim in this case was made were neither destroyed nor injured, they cannot be the subject of compensation, which is limited to property maliciously destroyed or damaged. This reasoning confuses the plain distinction between the original injury or destruction upon which the claim is based, and the loss or damage which is the...