The Gazette 1976

GAZETTE

NOVEMBER 1976

if the plaintiff recovers sufficient compensation to enable him to fin- ance that operation, he bona fide in- tends to resume practising as an auctioneer there. When the premises were destroyed, the plaintiff found temporary unsuitable office accom- modation in 69 Aungier Street in order to remain in that area. It is quite clear that at all relative times there has not been compar- able premises to 66 Aungier Street for the plaintiff to purchase. From evidence available, it appears that the market value of these premises just before the collapse was £35,000. The cost of reconstruction after de- molition has been completed will be £65,000 plus engineering and arch- itectural fees. After reconstruction, the letting value will be from £2,000 to £2,500 greater than the old pre- mises. It is likely that ultimately planning permission could be ob- tained to use these lettings for bus- iness purposes. It is probable that the plaintiff would obtain similar premises somewhere on the south side of the city for £35,000. From the cases cited, the prin- ciples applicable are: — (1) When a building is damaged or destroyed as a result of the tort of another, the owner is entitled to damages, unless: — (a) The Court is satisfied that he has not got a bona fide intention of restoring the building or (b) The Court is satisfied that, if the owner does not take steps to re- pair the building, there is available to him an alternative method which would restore him to his previous position. (2) If, in restoring the building, the owner has not altered at the ex- pense of the defendants the design, size or quality of the building which was destroyed, there should not be any deduction from the cost of re- storation. (3) If the Court is satisfied that the only reasonable method of re- storing the plaintiff's position is the restoration required, it should not deny him that, merely by reason of a substantial difference between that cost and the alternative method of compensation on the basis of market value—Harbutts v. Wayne Tank Co. (1970) 1 Q.B. 447. Accordingly it was held that it was neither unreasonable nor unnec- essary for the plaintiff to restore this building, as in the alternative there is no step he could have taken which would restore him to his pre- vious position. As the plaintiff is now receiving the full cost of the rebuilding (£65,000), his claim for

alternative office accommodation during the reconstruction, and for the loss of rents and the storage of furniture for a further 12 months is rejected. The damages will accord- ingly be assessed as follows: — Cost of rebuilding £65,000 Architects, Surveyors and Engineers Fees £10,000 Architects Fees to date ... £ 2,800 Rent of Alternative Premises £ 190 Loss of Rent to date £ 3,000 Renovation of No. 69, Aungier Street £ 500 Storage of furniture to date £ 660 Loss of earnings £ 1,250 Total: £83,400 Judgment is accordingly given for £83,400 damages. Monnelly v. Calcon Ltd., John Sisk & Son (Dublin) Ltd. and Another—Fiiilay P. — unreport- ed — 30th July, 1976. MASTER & SERVANT Garda's dismissal held to he noli and void In a reserved judgment delivered in the High Court, Mr. Justice McWilliam held that an order made by the Commissioner of the Garda S'ochana, Mr. Edmund P. Garvey, dismissing a 21-year-old Garda, stationed at Blackrock, Co. Dublin, at the end of his two-year proba- tionary period was null and void. The action was taken against the Commissioner by Garda Brendan M. Hynes, a native of Dundalk, Co. Louth, whose services were dispen- sed with by the Commissioner on September 17th last on the grounds that he was not likely to become an efficient and well-conducted Garda. During the hearing of the action earlier in November, it was stated that Garda Hynes, who had been stationed at Cabinteely, Co. Dublin, prior to his transfer to Blackrock, had been on sick leave for 39 days during his probationary period and that he had produced medical cer- tificates in respect of 32 of those davs. The Commissioner had stated on affidavit that most of the absences occurred immediately prior to, or subsequent to, rest Periods, when Garda Hynes, would have been away from duty in any event. Mr. Justice McWilliam, in his re- served judgment, said he would grant Garda Hynes the declaration

that the order of the Commissioner, whereby he purported to dispense with his services as and from Sep- tember 24th, was null and void. Mr. Justice McWilliam said Garda Hynes appeared to have done reasonably well during his initial training at Templemore and did not come under adverse notice except in respect of two or three trifling matters which every recruit in every force in the world had probably experienced. He was then stationed at Cabin- teely and appeared to have carried out his duties in a satisfactory man- ner except that he was absent from duty on medical grounds for 39 days between March 1975 and July 1976, a period of about 16 months. Notwithstanding the form of the Commissioner's order, it was clear, said Mr. Justice McWilliams, that these absences weighed with the Commissioner or his office. Garda Hynes, he continued, was required to attend for an examinat- ion by the Garda Surgeon on Sep- tember 6th and the Commissioner, in his affidavit, stated that he con- sidered the absences to have been excessive and not indicative of the health required for a member of the Force and that if Garda Hynes was malingering this would render him unfit to be a member. The surgeon had certified that the Garda's sick record had been excessive and that the position had been fully explained to the Garda. The surgeon had stated: "I would consider this case a doubtful propos- ition and would hesitate to forecast a satisfactory future as he appears to have a frivolous and immature attitude to the job in general". The medical evidence for the Garda was to the effect that, having had treat- ment, he was now fully fit and would continue to have good health. Mr. Justice McWilliams said he accepted the contention of the Garda that the Discipline Regulation applied to breaches of discipline by recruit guards but he did not read into the statement of the Commis- sioner that he considered that the Garda was malingering. The Com- missioner was merely saying the Garda was ill far too much to be a useful guard and that, if it was con- tended that he was not ill as much as that, he must have been maling- ering. Mr. Justice McWilliam said it seemed to him that it would have been perfectly proper for the Com- missioner to consider that a mem- ber, who was absent so often on 35