The Gazette 1986

GAZETTE

SEPTEMBER 1986

enactment of the Malicious Injuries Act on 6 November 1981. The fire occurred in what was called a box-room at first floor level in a relatively large new structure. The only other room at the same level was the Managing Director's Office which provided the only access to the box-room. Cardboard boxes were made up in this room for the packaging and supply of various quantities of meat. This room had a large quantity of " f l a t s" — the cardboard kit for the boxes on the day of the fire and also a number of completed boxes, some stacked at a point leading from the office door towards the centre of the box-room and some, already completed with the addition of an adhesive label, contained in chutes leading from the box- room to the ground floor. The flats were stacked in the centre of the box-room and they rested on a wooden pallet made of a number of slats. Two operators were employed to work in the box store, one aged 15 and the other, who was his brother, 17. Their job was to make up the boxes, stick the appropriate label on each, and send them down through the chute as required. Both were working there a few months and were regarded as satisfactory workmen. Adhesive labels, in several different forms, were contained on rolls of backing paper, which rolls hung from the ceiling and it was the practice to tear off a strip from time to time, remove the labels and discard the remaining portion of backing paper, which might vary in length from six to twelve inches. While there were some containers for that purpose, apparently the litter created by the backing paper was not put into the containers but allowed to lie on the floor. The backing paper was impregnated with a paraffin-wax which made it highly flammable. There was nothing else in the box-room of so flammable a nature although the flats and boxes were flammable to some degree. There was no evidence of an electrical heating or like fault. The fire was caused by backing paper becoming ignited and consequently setting fire to the cardboard flats. Smoking was prohibited in the factory during working hours, but two breaks for smoking were allowed during the day, the first being at 11.00 a.m. The Applicants made the case that the fire was caused by the deliberate act of the younger of the two brothers working in the box-room in igniting the backing paper. They sought to establish this by proving: (a) the allegedly tidy nature of the box- room on the morning of the fire before the arrival of the two brothers; (b) the nature of the fire as first seen by the Managing Director — flames, coming, as it were, from the floor and running along the short side of the flats nearest to the chutes, possibly a little around the back and reaching up above the level of the flats; (c) the evidence of a fire expert who carried out certain tests in which some six metres of backing paper, about half crumpled and the other half lying on the floor was ignited alongside a number of flats lying, not on a pallet, but on a floor, and in which the flats

failed to ignite. Fifty boxes were labelled that morning before the fire; this would amount to 100 labels which would, together on a roll of backing paper, measure some four metres; consequently it contended there was no possible way in which such a small amount of backing paper could be responsible for an accidental fire. Accordingly, the Applicants contended they had excluded innocent accident and had established a criminal act. The Applicants' case having concluded, the Respondents did not call any evidence. The Court considered it proper in the interests of justice to call the younger brother employed in the box-room as a witness. His account of the incident was that when the smoke break was called he lit a cigarette for his brother and himself, and threw the match over his shoulder, not knowing whether it was lighted or not. The Court was not satisfied on the inferences properly to be drawn from the evidence that the fire was caused deliberately in its ordinary meaning, but that there was a wanton disregard by the boy of the consequences of his act. It was greatly doubtful that he threw the match over his shoulder. But it was impossible to believe that, assuming he merely threw a lighted match away, he or his brother would not have seen the immediate incendiary effect on the torn backing paper and the fire that must have followed so quickly. They had to go over and open the office door, go into the office and close the door behind them. By this time, on any view, there must have been a significant flame readily apparent to anyone who looked. The Court did not accept that they left the room ignorant of the fire that was already there, or, in the case of the younger brother, innocent of its cause. As the case appeared to the Court if the Applicants established that the younger brother's conduct was grossly wanton and reckless this constituted malice within the meaning of the code. The Respondents contended that on the true constructions of the sections of the Statutes which comprised the malicious injury code before the 1981 Act the test to be applied was subjective — did the doer know that what he did was likely to cause damage — was the act done deliberately with the actual knowledge that it would cause the damage? In support of this they cited a number of English criminal cases of which R. -v- Pembleton [1874J L.J.M.C. 91 was particularly apposite since it was referred to by the Supreme Court in the Case of Wexford Timber Company -v- Wexford Corporation and A nor. 88 ILTR 13. The principle suggested is another way of stating that an applicant for compensa- tion under the code must establish that a crime was committed — the crime in question being clearly one that required criminal intent. Kingsmill Moore J. in the Wexford Timber Company case said:

to cause such injury, was reckless and uncaring whether such injury did or did not ensue. . . . Assuming that the fire was caused by a light carelessly thrown into the waste paper basket without any anticipa- tion thai a fire might result, or knowledge thai such a result was natural and probable, the thief would nol be guilty of malicious injury, unless he saw the fire starting al a time when he could have quenched il wilhoul any risk or difficulty and deliberately refrained from so doing, either desiring the fire to spread or reckless whether il did so. If such desire or recklessness existed, I am of I he opinion that his initial careless act and his subsequent deliberate abstention from action would be so closely connected thai he could be held lo have acted with malicious intent to cause injury." It is upon this passage that Counsel for the Applicant relied and, in the view of the Court correctly relied. Even without any such observation, it seemed to the Court that in circumstances of this kind one must look at the entire situation; it followed that the facts proved supported a legal finding of malicious damage which the Court made. Cases Cited R. -v- Pembleton [1874] L.J.M.C. 91. R. -v- Cunningham [1957] 2 All. E.R. 412. R. -v- Briggs [1977] 1 All. E.R. 475. R. -v- Parker [1977] 2 All. E.R. 37. R. -v- Stapleton [1979] 2 All. E.R. 1198. Kenneally -v- Clonmei Corporation 89 I.L.TR. 164. Dinan Dowdall Limited -v- Dublin Corporation [1954] I.R. 230. Dundon -v- Limerick Corporation 1955/6 Corporation & A nor. 88 I.L.T.R. 13. Laity -v- Meath County Council Court — 11 April, 1984 — unreported). Agra Trading Limited -v- — High Court (per McCarthy J.) 11 October and 9 November 1984 — unreported. Daniel Brilley FAMILY LAW Nullity decree granted on the ground that at the time of the marriage the Respondent was suffering from a psychiatric illness as a result of which he was unable to enter into and sustain a normal marriage relationship with the Petitioner. In 1976, the Respondent, Mr. R., was diagnosed as suffering from paranoid schizophreina. After hospital treatment he began to take a long-acting injection as treatment for the illness. In May 1981, he went out for the first time with the Petitioner, and following their engagement in September, they married on 4 December 1981. Mrs. R. was not aware of her husband's illness and it was only on their return to Ireland after their honeymoon (when the marriage was consummated) that she began to notice something was wrong. Mr. R. became quiet, introverted and sleepless and his attitude towards his wife began to undergo (High Waterford County Council IJR 17. Wexford Timber Company -v- Wexford

"Constructive intention exists where the natural and probable result of the action would, to the knowledge of the doer, result in injury to the property and where the doer, although he may have had no desire

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