The Gazette 1985

GAZETTE

JULY/AUGUST

1985

same meaning as ascribed to them in the Income Tax Acts. Furthermore to decide otherwise would dilute either the Export Sales Relief or Group Relief which was not the legislatures intention. M. Cronin (Inspector of Taxes) -v- Youghal Carpets (Yarns) Limited - Supreme Court (per Griffin J.) (nem. diss.), 28 March 1985 - unreported. Larry Brennan MALICIOUS INJURY Statutory Interpretation — meaning of "Wantonly" in Section 5(2)(b) of Malicious Injuries Act 1981 — damage shall be taken to be maliciously caused if caused "wantonly" — damage "wantonly" caused where the only inference from the evidence was that the person responsible for the damage had no regard whatsoever for the consequences of his action, although he must have realised the high probability of his conduct causing damage and that the risks taken were totally unjustifiable. Section 5(1) of the Malicious Injuries Act 1981 in essence provides that where damage in excess of £100.00 is maliciously caused to property a person suffering such damage is entitled to claim compensation from the relevant Local Authority in accordance with the Act. Section 5(2) states that for the purpose of sub-section (1) damage should be taken to be maliciously caused only if caused in one of four ways one of which is "wantonly". This case involved a youth of 17 taking his brother's car without consent, and following a very fast and dangerous escapade through narrow streets, finally crashed into the applicant's car. The youth had never driven before, was trying to impress his passenger and drove too quickly. The Applicant relied on Section 5(2)(b) and Section 5(2Xd) of the Malicious Injuries Act 1981. Section 5(2Xd) provides another way in which damage is taken to be maliciously caused, i.e., in the course of, whether or not for the purpose of, the committing of a crime against the property damaged. The Applicant submitted on this point that since the owner of the car, being used without his consent, would be entitled to recover in respect of damage to it, then the owner of any property damaged as a result of such car crashing into it should also be entitled to recover, since all the damage arose in the same circumstances. HELD: (1) The argument on Section 5(2)(d) of the 1981 Act was unsuccessful on the basis that if the Oireachtas had wished to extend the provisions of the Act to property other than that against which the crime was being committed it would have done so expressly.

(2) On the argument on Section 5(2)(b) of the Act, referring to the decision of McDowell -v- Dublin Corporation [1903] IR 541 the court was of the view that Holmes L.J. in that case would have regarded something done due to vacancy of mind arising from thoughtlessness as having been done wantonly. The court also referred to Boyd -v- Antrim County Council (Babbington L.J.) [ 1941 ] NI 127 at 130 and held that before one can recover for malicious injury it is necessary to establish mens rea on the part of the person causing the damage. Quoting from the decisions of Walsh J. and Henchy J. in People - v- Murray [1977] IR 360 on the question of recklessness in the criminal law the Court reached the conclusion that on the evidence in this case the young man had the necessary mens rea, intended driving as he did, had no regard whatsoever for the consequences of his actions, ingnored the probability of crashing and took an unjustifiable risk. There the damage was caused "wantonly" and a decree for the Applicant was given. Michael T. Moran -v- Leitrim County Council - High Court (per Barron J.), 25 October, 1984 - unreported. Ken Morris LANDLORD AND TENANT Successive agreements for general garage business — negotiations for new agreements broke down — possession refused — tenancy at will or licence. The action related to a petrol service station known as Friarsland Service Station. By an agreement of February 1974 the Plaintiffs purported to hire to the Defendants certain garage equipment and to licence the Defendants to occupy the Service Station for the use there of that equipment. The agreement was for a period of six months from the 1 January 1974 the Defendants to pay the Plaintiffs the sum of £625.00 by monthly instalments for the use of the equipment. It was held in the Supreme Court in 1981 [1981] ILRM 66 that the true construc- tion of the February 1984 agreement was that it created the relationship of Landlord and Tenant and not that of the Licensor and Licensee and that in effect it gave the Defendants a Lease of the premises for six months from 1 January 1974. The question which arose for deter- mination in the instant case was whether the Defendants had any rights and if so what rights they had in relation to the petrol service station. The agreement of 14 February 1974 was for a period of six months. This agreement was followed by discussions and negotiations but

eventually these negotiations broke down and no further agreement was concluded. On 5 November 1974 the Plaintiffs gave notice to the Defendants that they required possession of the premises by 14 November 1974 and when possession was refused they brought the proceedings claiming possession and mesne rates. The Court HELD that following the expiration of the 1974 agreement the Defendants stayed on in occupation of the petrol station paying the monthly payments which had been provided for in the expired agreement. They continued to occupy the premises with the concurrence of the Plaintiffs. The Defendants continued in occupation in a Landlord and Tenant relationship but their tenancy was merely a tenancy at will. A tenancy at will should be readily inferred where there is continued exclusive possession during a transition period between the expiration of a previous agreement and the conclusion of a fresh one. The classic cases in which tenancies at will are inferred are when someone goes into possession prior to a contract of purchase or someone with the consent of the Landlord who holds over after the expiry of his Lease. In this case there was a transitional period during which negotiations were being conducted touching the estate or interest in the land which has to be protected and the tenancy at will is an apt legal mechanism to protect the occupier during such a period of transition. The letter of 5 November 1974 in which the Plaintiffs gave notice to the Defendants that they required possession of the premises by 14 November 1974 was effective to withdraw the Plaintiffs consent to the continued occupation of the premises by the Defendants and accordingly the tenancy at will terminated. Following the failure to give such possession the Defendants have been trespassers of the Plaintiffs and are therefore liable for mesne rates. Per Henchy J. The terms of the written agreement (which were the main reason why the Supreme Court held in 1981 that the agreement created the relationship of Landlord and Tenant) were no longer in operation. If it is shown that payments were not made or were not intended to be paid as rent or to be received as rent the presumption of a tenancy at will, will be rebutted. In all cases it is a question of what the parties intended. It is impossible to infer a tenancy from the acceptance by the Plaintiffs of four monthly payments. Nothing was further from the minds of those acting on behalf of the Plaintiffs. In fact the Defendants never pleaded a monthly tenancy. The circumstances were such as to negative any intention to create a tenancy rather than a licence. The legal relationship in this case after 30 June 1974 was that of Licensor and Licensee and that when the licence was

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