The Gazette 1982

CIA/E T N

JANUARY/FEBRUARY 1982

An intention to cause damage will be presumed if such damage is the natural and probable consequence of the act which a reasonable man ought to have foresee. Compensation can be recovered (a) for the result of the malicious act itself; that is for the damage which flowed from the malicious act either because the wrongdoer directly intended to cause that damage or he is deemed to have intended it in that the damage was a necessary consequence or a probable result of the act, or (b) for loss arising in the course of the commission of a crime against the property even where the damage to that property was not intended (e.g. compensation is payable to the owner of a painting dropped by a thief during his getaway and thus damaged even though the thief's clear intention was to carry off and later dispose of the painting in an undamaged state and indeed the thief was probably as upset by the damage as was the owner). "Wantonly" caused means that it stems from an act done recklessly without caring whether injury resulted or not and it goes beyond mere negligence. 'Wantonness' is not an easy concept and modern judicial interpretating may well be sought. Holmes L. J. In O'Do we11 v. Dublin Corporation [1903] I.R. (2) states at page 555 that "wantonly" means recklessly, thoughtlessly or without regard for right or consequences". 'Wantonness' would suggest not only an indifference to consequences but an unrestrained disregard of them. When damage is caused by three or more persons unlawfully, riotously or tumultuously assembled together, there must be an unlawful act - some fault even if only a civil wrong - by the damage feasor. Subsection (2) (d) of Section 5 brings in compensation for damage caused in the course of, whether or not for the purpose of, committing a crime against the property damaged, and will greatly widen the scope for claims. It would appear to bring in claims where a vehiclfe is unlawfully taken and later found damaged; such claims were usually unsustained under the previous law because it could not be proved that there was a causal connection betwen the taking of the vehicle and the crashing of it; the crash might have been caused by the driver's negligence or his inexperience or indeed by the negligence of some other road user. The 'taking' of the vehicle does not have to constitute a larceny of the vehicle; it is enough if the taking contravenes section 112 of the Road Traffic Act 1961. The applicant for compensation must rebut the presumption against crime; he cannot succeed when the damage could have been caused innocently or wrongfully and there is no indication which caused the damage. The applicant should, if possible, produce eye witnesses to the malicious act. If none are available he must produce indirect evidence which can be affirmative or negative. Affirmative prove a chain of circumstantial evidence inferring guilt against some person or persons unknown; it is in this context that 'malice' in its usual sense comes in Negative adduce proof to exclude the reasonable probability of damage having arisen innocently; the judge may then draw the inference of malice.

The applicant does not have to exhaust or even pursue his remedies against the wrongdoer before making a criminal injury application but he is likely to get less compensation from the local authority than he would from the wrongdoer (assuming the latter to be a mark and can be found) because the local authority is not liable for the applicant's consequential loss or for exemplary damages. It is no longer a defence to a claim for compensation to show that the damage was caused by a person of unsound mind or by a child. In addition to the exclusion of compensation for property stolen, save in the case of a riot, an applicant will not be compensated for consequential loss e.g. the hire of a car while his own damaged car is being repaired. COSTS Costs awarded to an applicant will be in accordance with Regulations which section 15 (2) of the Act empowers the Minister for Justice to make. Practitioners will have to acquaint themselves with these Regulations when they are published as they will regulate solicitors' costs and counsels' fees where costs are payable by the local authority. In the relatively few cases where costs will be payable by parties other than the local authority, such costs will be agreed or determined by rules of court and here again practitioners will have to await their publication. VENUE The applicant must be careful to bring proceedings against the local authority in whose area the damage occurred or, in the case of property taken unlawfully from one local authority area and found in another against the local authority for the area from which it was removed. POWER TO SETTLE Local Authorities may now settle claims and make lodgements as in Civil Cases. The local authority may recoup itself from the damage feasor but it must now pay the compensation without waiting for the award to be included in the estimates for the next financial year and waiting further for the rate for the following year to be levied and collected. COMPENSATION: EXCLUSIONS AND REDUCTIONS. No compensation is allowed for damage to or loss of: coins, bank notes, postal/money orders or stamps; articles of personal ornament including watches or jewellery (kept otherwise than as stock-in-trade). Nor is compensation allowed for damage to unauthorised structures within the meaning of Planning Acts. No compensation is payable unless damage exceeds £100 (previous threshold -£5). Where the claim exceeds £100 the court will reduce the award by £100 unless the claim is in respect of the same property damaged within the previous 12 months. The Minister for Justice may, with the consent of the Minister for Finance, by order,

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