Worthington v Tipperary County Council

• Jurisdiction: Ireland
• Judgment Date: 27 February 1920
• Date: 27 February 1920
• Court: Court of Appeal (Ireland)

Appeal.

Worthington v. Tipperary Co. Council.

GEORGE S. WORTHINGTON

Applicant

The COUNTY COUNCIL of the COUNTY of TIPPERARY (South Riding) and the GORTNAHOE RURAL DISTRICT COUNCIL (otherwise Urlingford No. 2 R. D. C.),Respondents (1)

Malicious injury - Bailee's right to compensation - "Person injured" - Punitive damages - Costs of Appeal - Grand Jury (Ireland) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 135; Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), sect. 5 - County Court Rules, 1890, rule 17;R.S.C., 1905, Order 59, rule 77.

Case Stated for the Court of Appeal by Mr. Justice Kenny as Judge of Assize in County Tipperary (South Riding), at the Summer Assizes, 1919, on the hearing of an appeal from the County Court Judge, under the Local Government (Ireland) Act, 1898, sect. 5. The appeal was by each of the respondents from a decree of June 26th, 1919, by which the County Court Judge awarded a sum of £70 as compensation for criminal injury.

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

The criminal injury complained of was the driving of twenty-nine cattle on 2nd June, 1919, from the applicant's lands of Ballinourty, near New Birmingham, in the County Tipperary, whereby the said cattle were wantonly and maliciously injured and depreciated in value, and one of them died. The amount claimed was £200.

The following facts were either proved or admitted:— Twenty-nine cattle were maliciously driven from the lands of the applicant, and injured on the said occasion. Of these, twenty-seven were then in the custody, control, and care of the applicant as bailee in possession under grazing contracts with the various owners of the said animals, and under which such owners were at liberty to remove their animals from applicant's lands at any time they pleased, they being, however, liable for the grazing rent for the full period of the letting notwithstanding.

The applicant was responsible for the herding of the said cattle. It did not appear that there were any written agreements; none were given in evidence. The several owners resided in the immediate neighbourhood of the land. One of them was called as a witness on behalf of the applicant; admitted that he owned fourteen of the said cattle, and heard on the 3rd June that they had been driven off, and that there was nothing to prevent his making an application in his own name for compensation in respect thereof. The two remaining beasts were the property of the applicant. I find that these two cattle, the property of the applicant, were injured to the extent of £7, and I awarded that sum as compensation in respect of them. I held that the applicant could not recover compensation in respect of the other twenty-seven animals, inasmuch as he was not, in my opinion, a party injured within the meaning of the 135th section of the Grand Jury Act. If I am wrong in that decision, I award £63 compensation in respect of the injuries to the said twenty-seven cattle.

From the history of the antecedent malice to the applicant and his predecessors in title, and from the several circumstances surrounding the occurrence, I was of opinion that if there was power to award compensation of a punitive or vindictive character the present case was one for exercising such power. I was of opinion, however, that such damages could not be awarded, and so held, but in case I should have been wrong in so deciding I fix the sum that should be awarded on such basis at £20 additional, whether the decree be in respect of twenty-nine cattle or only in respect of two.

Prior to my decision each side had intimated its desire for a case stated in the event of my decision being adverse. Special leave to appeal, pursuant to Rule 13 of the Statutory Rules, 1900, was duly asked for, and the requisition in the prescribed form was, after the pronouncement of my decision, handed in on behalf of the applicant.

The questions for the Court are: 1, Is the applicant a person entitled to maintain the claim as regards the twenty-seven cattle which were on the lands under grazing agreements? 2, Had I power to award vindictive or punitive compensation or damages? The amount of the decree will depend on the answers to these questions. The case is one in which I will allow the applicant his costs of the appeal according to scale, whether the decree be only for £7 or for a greater sum.

An agister of cattle, maliciously driven off his lands, is, as a bailee in possession, a "person injured" within the meaning of sect. 135 of the Grand Jury (Ireland) Act, 1836, and is entitled to recover compensation for the injury done.

Punitive damages may not be awarded under the Malicious Injuries Code for injuries maliciously done to property.

The Court, having regard to the difficulty and importance of the case, awarded £50 in respect of the costs in the Court of Appeal under Order 59, rule 77, of the Rules of the Supreme Court, 1905, holding that the limit of £20, imposed by the County Court Rules, 1890, rule 17, does not apply to costs in the Court of Appeal.

Cur. adv. vult.

Sir J. Campbell C. :—

In this case two serious and important questions affecting the construction of the Malicious Injuries Code were argued before us. The first of these was as to the right of a person having the custody and control of the property of another, in circumstances constituting him a bailee, to institute a claim for compensation on his own behalf in respect of the property so retained by him as bailee. In the particular case before us the owner of certain lands had upon them cattle of his own as well as cattle of neighbouring farmers, which he agisted for hire, and these cattle were made the subject of one of those senseless and cruel attacks on dumb beasts which, for the credit of the

country, are, I am glad to say, becoming rare. The application included a claim in respect of the injuries to his own cattle, and a further claim in respect of the injuries to the cattle of the neighbouring farmers.

The first question that arises for our determination is as to the right of the applicant to compensation for the cattle which were in his custody as bailee. In the early stage of the argument I was inclined to hold that the right to compensation was confined to the beneficial owner, as being the only person who could properly be described as the person injured; but, as the case developed, I was satisfied that this construction of the section would ignore the position occupied by persons such as trustees, executors, administrators, who, while being legal owners of the property, are not necessarily or at all beneficial owners; and I have come to the conclusion that we cannot so limit the provisions of sect. 135 of the Grand Jury Act, and that such persons as trustees, executors, administrators, and bailees have such possession of, and property in, the goods under their control as entitle them to maintain a claim for compensation under the designation of "persons injured." It seems to have been settled many centuries ago that a bailee has such possession and property in the goods entrusted to his care as to entitle him to maintain any proceeding against any person, other than the true owner, for injury or trespass. That is now a settled principle of our law. Accordingly, on this first question, in common with the other members of the Court, I am of opinion that the applicant in this case has the right under the Malicious Injuries Code to recover compensation, not only for the damage to his own cattle, but also for the damage to those cattle entrusted to him by his neighbours.

The second question is also one of great importance. It arises in consequence of the added claim in respect of the high-handed, unconstitutional, and vindictive nature of the outrage; and it was argued that sect. 135, which enables the Court to make a decree for such sum or sums of money as the person injured ought to receive, entitles an applicant in a case where the elements I have mentioned are to be found to an additional sum, over and above the amount of the actual injury done, by way of compensation. In a recent case, Noblett v. Leitrim County Council(1),this Court decided a point which had been for a long time in doubt, that the applicant was entitled to what are called consequential damages in respect of anything which was the natural and direct result of the injury inflicted; and in the course of that case it was suggested by myself that there might be good reason why, on the assumption that the county or district was placed by law in the position of the wrongdoer, the doctrine in tort actions, which entitles a jury to give exemplary or vindictive damages, should apply to claims for compensation for malicious injuries where the facts warranted its application; but the point did not arise for decision in that case, and the expression of opinion was my own, and my own only. I have come to the conclusion that this element cannot be entertained. If one looks to the antecedent legislation as well as to the particular Act under which this claim was brought, he will find that all through the language deals with "compensation," or "amends," that is to say, restoration of the property in its original state. Compensation, I think, manifestly includes all the consequences in the way of...