The Gazette 1976

GAZETTE

J UNE /J U LY

1976

clients to submit the difference which had arisen to a new arbitrat- ion, but could not take part in the present arbitration, as Messrs. Buckley's Stores Ltd. had committed a serious breach of the conditions by agreeing to be added as defen- dants. As a result of their solicitor's advice, National Employers wrote to Mr. Buckley's solicitor on 13th September that, as a result of the gross breach committed by Buck- ley's Stores Ltd., they repudiated liability in respect of the accident, and would not take part in the cur- rent arbitration. On 4th January, 1973, the respec- tive sums awarded by the High Court were paid to Miss Cronin and Miss Bourke respectively by Mr. Patrick Buckley. Miss Bourke's costs were taxed at £869, while Miss Cronin's costs were taxed at £731. The present proceedings were in- stituted by the plaintiffs on 22nd May 1973. On 18th October, 1973, Mr. Costello delivered the arbitrat- ion award, in which he found that the Federated Employers were not liable to indemnify the plaintiffs in respect of their claims. The Nor- wich Union would only be liable for the indemnity if the National Em- ployers were not so liable—and vice versa. The Court must now deter- mine whether in fact National Em- ployers are now liable to indemnify Messrs. Buckley's Stores Ltd. in re- spect of the claims of the injured women. This Court made an order dismissing Federated Employers from the proceedings. As a result of evidence tendered, Hamilton J. is satisfied that, at the time of their accident, the injured women were employees of Buckley Stores Ltd., in their Cork City premises. Hamil- ton J. is also satisfied that these girls could not have conveniently reached Cork city without getting a lift from Mr. Patrick Buckley, and that consequently, at the time of the accident, they were in the course of the employment of Buckley's Stores Ltd. in Cork city. Conse- quently National Employers were at all times fully liable to indemnify Buckley's Stores in respect of the claims brought by the iniured women. Messrs. Buckley's Stores kept National Employers fully in- formed of the negotiations but ad- mittedly National Employers did not consent to the settlement of the claims. However Messrs. Buckley's Stores Ltd. reiterated their claim again and again in the correspondence between National Employers and Messrs Buckley's Stores* solicitor. By stead-

fastly refusing to agree to submit the matter to arbitration, in accord- ance with the conditions in the policy National Employers were undoubt- edly in breach of a condition in die agreement. It is obvious that a party who is in breach of a condition can- not invoke another condition in the same policy to avoid liability. By agreeing to provide indemnity to Buckley's Ltd. in Cork city, Nat- ional Employers had thereby agreed to waive the conditions of policy. Consequently National Employers are fully liable to indemnify Buck- ley's Stores Ltd. in respect of these claims, the amounts awarded in the judgments, the costs, the further costs in defending these proceedings, and the interest paid by the plain- tiffs on the amount borrowed to en- able them to pay the amounts of the judgment Buckley's Stores Ltd. and Pat- rick Buckley v. National Em- ployers Mutual General Insur- ance Association Ltd. and others — Hamilton J. — unreported — 10th April, 1975. DAMAGES — RIGHT OF SUPPORT Defendants who negligently de- molish plaintiff's premises by not providing proper support must pay compensation to plain- tiff by restoring the premises in full to the position they were previously in. The plaintiff claims injunction against the defendants, who are re- spectively a developer, a firm of builders and the foreman of the builders for negligence for lack of support of the premises, 66 Aungier Street, Dublin. The plaintiff is an auctioneer practising in Dublin for the last 10 years, and practised in Rathmines until 1972. In April, 1972 he purchased the freehold of 66 Aungier Street for £7,000 and car- ried out extensive structural alter- ations for an extra £12,000 which took a year to complete. This in- cluded office accommodation on the ground floor for his business, as well as three new double flats, and 2 single flatlets, which yielded a profit rent of £60 per week. Apart from that, minimum repairs were carried out in 3 rooms which were let to statutory tenants of more than 70 years of age under the Rent Acts.

Before 1972, the adjoining house, 67 Aungier Street, had been demolish- ed, and support was given to No. 66 by flying shores. The plaintiff had carried on business in the pre- mises since 1973. In September, 1975, the defend- ants had started work on the build- ing of foundations for the new build- ing intended to be erected on the site of No. 67. Due to their negli- gence, the result of this work was to remove substantially the support from the side wall of No. 66. Con- sequently a collapse of the wall of No. 66 occurred on 2 September, 1975. Since then the premises have not been used, and are still in a dangerous condition. It is therefore necessary to demolish the remainder of No. 66 without causing damage to No. 65. As there was a conflict of evidence involving a difference of cost of £7,000 between the consulting en- gineers of the plaintiff and of the defendant respectively, Finlay P., at the hearing of the action, ordered the defendants to carry out the de- molition, as they had been mainly responsible for the lack of support. The main question to be determin- ed is whether the plaintiff is entitled to the cost of replacing 66 Aungier Street with a new comparable build- ing to that which was destroyed. The defendants contend on the other hand that he is only entitled to be compensated by the market value of the house at the time it was de- stroyed. Finlay P. had already granted a mandatory injunction ordering the defendants to demolish the premises, and to pay to the plaintiff the cost of demolition. The plaintiff contends that the full cost of rebuilding is necessary as the only basis in which he can be restored without loss to his previous posit- ion. The defendant contended: — (1) That it was not essential for the plaintiff to carry on business at 66 Aungier Street, and that he could acquire suitable alternative accom- modation instead. (2) That if the plaintiff were to build a new house on the site of 66 Aungier Street, he would acquire a capital asset greatly in excess to that he had before. (3) That, as the defendants had only been guilty of negligence, and not of wilful default, the cost of re- building the house, as opposed to the payment of the market value, would be an unjustified burden upon him. On the evidence it is clear that,

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