The Gazette 1978

APRIL 1978

GAZETTE

that the statutory preconditions as to notice had been complied with. (lv)In relation to argument by Counsel for the Defendant that the appropriation as sought would not implement the testator's primary intention, it was held that as the Plaintiff's half share, being a legal right, t a k es p r i o r i ty over t he Defendant's half share which derived from the will that the intention of the testator could have no part in the operation of section 55 in the circumstances of this case, (v) Having set out in full the require- ments of section 55, contained in that section, for its operation — from the particular facts of this case the proposed apportion- ment of the dwelling house and 52 acres would be a valid exercise of the discretion invested in the personal representative by section 55. The Appeal was dismissed. CecUa Hannon v. Dcrmot G. ODonovan, Joseph Hannon and Lawrence Hauion — The Supreme Court (per Henchy J., with Griffin and Parke J.J.)—unreported — 26 April, 1978. The Plaintiff bought freehold premises at No. 66 Aungier Street, Dublin in 1972 and carried on his business as an auctioneer on the ground floor and let the remainder of the building in eight residential lettings which brought in a gross income of about £3,250 a year. The adjoining premises No. 67 had been demolished before 1972 and support had been given to No. 66 by flying shores erected across the site of 67 and built into the side wall of 68. The second named Defendants as contractors to the first named Defendants began work in September 1975 on the foundations of a new building to be erected on the site of 67. While doing this they removed the supports for the side wall of 66 which collapsed in part. The building could not be repaired and the r ema i nder of 66 had to be demolished. The Defendants were NEGLIGENCE Mea sure of Dama g es — Interpretation of Restitution In Integrum Ride.

negligent but were not guilty of intentional default. The central question in the case was whether the Plaintiffs damages was to be the cost of reinstatement of the premises or the amount by which the property had been diminished in value. The pre-damage value of the premises was £35,000 and there was evidence that such sum would purchase similar premises on the South side of Dublin. The cost of reinstatement would be £65,000 plus professional fees and the premises when reconstructed would have a letting value of between £2,000 and £2,500 a year over and above that of the old premises and would have a capital value, put by one witness, at over £100,000. Held: (Supreme Court, per Kenny J.): When a house has to be pulled down as a result of the Defendants wrongful a c t . . . the owner is entitled to restitutio in integrum which means that the Plaintiff is entitled to recover such sum as will replace him, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on him, subject to the rules of law as to remoteness of damage. (British Westing House Electric v. Underground Electric Railway of London (1912) A.C. 689). The principle of restitutio in integrum does not involve the subsidiary rule that in every case where property is destroyed or demolished the owner is entitled to recover the cost of restoration as damages (Hutchison v. Davidson (1945) S.Cas. 395). There may be some cases in which damages equal to the cost of restoration are the only way to put the Plaintiff back into the same position as he was before the accident but these are special cases and the onus lies on the Plaintiff to establish that his is one. The Plaintiff had been carrying on business in 66 Aungier Street for about two years only and so cannot have built up an extensive goodwill arising from the situation of the premises. The Plaintiff has totally failed to establish that his is an exceptional case and that he should be awarded the cost of restoration. Per Henchy J. — The Plaintiff will have to spend the diminished value of the premises, £35,000, in acquiring premises somewhere in the South side ofthe City and not in Aungier Street or its immediate vicinity. That might be unfair or unreasonable if his circumstances were different but prior to 1972 he had carried on his

auctioneering business in Rathmines for six years and there is no suggestion that it suffered by being transferred to Aungier Street in 1972.Andthereisno evidence that it will suffer to any appreciable extent if it is now ransferred to another premises in the South side of the City. It would be a different stroy ifthe Plaintiffhad a well established business in Aungier Street such as that ofa publican, a grocer or a bookmaker which depended on the immediate locality for its custom. But the Plaintiff is an auctioneer and as the evidence shows he draws his clients from all parts of the Dublin area. Reinstatement damages of £65,000 would not be justified. That measure of damages would excessively and unnecessarily enrich the Plaintiff and unreasonably mulct the Defendants. For damages measured at £35,000, the diminished value of the premises, the Plaintiff can get premises no less suitable for his business purposes and with a similar income potential from lettings. Such damages will be both compensatory and reasonable whereas reinstatement damages of £65,000 would unjustifiably profit the Plaintiff and unfairly penalise the Defendants for their negligence. Michael Munnelly v. Calon Limited ft Ors .-Supreme Court (per Kenny and Henchy JJ . with Parke J.) 5 May, 1978 — unreported. PATENTS Patent Act 1964 — Interpretation Section 65 (1) — Reflisal to convert convention application to application under Section 6 (1) alter sealing and granting of Patent* The Plaintiff sought an order pursuant to Section 65 of the Patent Act 1964 directing the Controller to make certain amendments to the Register of Patents. The Plaintiff had made two Convention Applications within the meaning of Section 6 of the Act numbered 33511 and 33574. Such an application entitled the Plaintiff to priority as on the date of application for the patent in the convention country, in this case the United Kingdom. The patent in respect of Application Number 33511 was sealed and granted on the 6th November, 1974. On the 15th