The Gazette 1982

CIA/E T N

JANUARY/FEBRUARY 1982

Criminal Injury to Property

Impact of New Malicious Injuries Act

by

Professor Richard Woulfe, M.A., LL.B., Director of Education, Incorporated Law Society of Ireland

A criminal injury application or malicious damage application is a claim for money compensation brought by the 'owner' of property which has been damaged or destroyed, against the Council of the County or the Corporation of the County Borough in which the damage or destruction occurred. 'Owner' in this context means a person having an insurable interest in property and being responsible for making good that property. 'Property' includes incorporeal hereditaments and wild animals in captivity. The previous law has been amended by and consolidated in the Malicious Injuries Act 1981 which came into force on 6th November, 1981. Section 5 of the Act reads:- (1) Where damage, the aggregate amount of which exceeds one hundred pounds, 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. (2) For the purpose of subsection (i) damage shall be taken to be maliciously caused only if caused:- (a) by a wrongful act done intentionally without just cause or excuse, or (b) wantonly, or (c) unlawfully by three or more persons unlawfully, riotously or tumultuously assembled together, or (d) in the course of, whether or not for the purpose of the committing of a crime against the property damaged (3) Subsection (i) shall extend to damage to property which is within any harbour or within one mile beyond the coastal boundary of a local authority area or which, having been unlawfully taken, is removed from within any harbour or such one mile. (4) The right to compensation given by this section shall be limited to compensation for the actual damage caused and shall not extend to

compensation for any loss consequential on such actual damage and, in particular, shall not extend to compensation for the loss of the use of the property damaged DAMAGE: 'Damage' includes the total or partial destruction of the property and any injury thereto. Save where the unlawful taking of property during a riot comes within the ambit of section 6, there is no compensation for property stolen and found damaged (Irwin v S/igo Co Council [1957] Irish Jurist Reports). Consequential loss is not compensatable under section 5 (4) which restates the previous law as exemplified in Mogul of Ireland v Tipperary Co. Council [1976] I.R. 260). MALICE, CRIME, CAUSATION: Section 5(2)(a) adopts the language of Bayley J Bromage v. Prosser:" Malice, in the common acceptance of the term, means ill-will against a person; but in its legal sense it means a wrongful act done intentionally without just cause or excuse". Kennedy C. J. in the Artifical Coal Company and Hamon v. Minister for Finance [1928] I.R. quotes this passage with approval and, at page 242, goes on: "The applicant is somewhat in the position of a prosecutor. He must prove that a crime has been committed by some person or persons known or unkown, for which the community is to be made liable -that is to say, he must adduce such evidence as will satisfy and convince the mind and conscience of the judge, acting in the capacity of a jury, of the fact of the alleged crime having been committed, though he is not required to bring it home to any particular individual or individuals.... The ratepayers can only be mulcted when crime is established." Normally the causing of the damage itself constitutes the crime: here the Malicious Damage Act 1861 retains its importance (especially the generic section 51) but section 5(2)(d) of the new Act must be seen as a significant widening of the compensation net.

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