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how and why the procedures which admittedly did
develop there were allowed to do so, and why the
circumstances in which the men were kept were so
primitive, notwithstanding the duty of the defendants
under the regulations. The urgency of the decision, to
arrest may be a reason, but not justification. I take the
view that the primitive circumstances must have been
foreseen by commanders of greater seniority than
Lieutenant Barton, that the entire pattern from Monday
04.00 hours was one of authority, rigid discipline and
regimentation, even to the point where people travell-
ing in motor transport between Pinehurst and Bally-
kinlar were not supposed to look around them or out
of the windscreen or any other window of the vehicle,
and was preconceived."
Authority for impugned procedures
The judge continued : "Both Mr. McMahon and Mr.
Crossey say they saw high-ranking officers visit the
camp, and heard them instruct hut guards to continue
the exercises. Superintendent Magill says that General
Tuzo, the Colonel and Brigadier visited the camp, I
infer that authority for the procedures impugned, and
their continuance, stemmed from a source higher than
a corporal, staff sergeant or lieutenant. This course was
adopted irrespective of whether the people were guilty
or innocent, or the relative gravity of matter available
in each case to create suspicion.
"Considering how uniformly the men were organised
from their beds finally to Ballykinlar, I have no reason
to suppose that the manner in which they were treated
in Ballykinlar was not similarily pre-conceived and
organised: certainly it was deliberate, unlawful and
harsh.
"It is not for me to say whether this is a moral
thing, or to be defended as expedient in the circum-
stances now obtaining in the province, nor for me to
institute comparisons between my findings on Special
Powers Act, interrogations and other things which have
happened, and are happening in the province. I am
asked to hear evidence on a specific issue and to decide
in law what is the balance of probability. I find on the
balance of probability that the plaintiff has suffered the
wrong of which he complains in the civil bill and give
him a decree for £300."
Malicious release of mink entitled applicant to compen-
sation under Malicious Injuries Code.
The breeding of mink for their furs is a highly complex
business and requires involved records giving detailed
particulars.
In March 1966, 340 live mink animals were released
from their cages at the applicant's mink farm under
circumstances pointing to deliberate and malicious in-
terference with the cages on the part of persons un-
known. 245 animals were recovered alive, 83 were
found dead, and 13 remained untraced. The animals
recovered were unfit to resume breeding, and fit only
for pelting. The loss arising to the applicants in their
business was calculated at £9,180, and they have insti-
tuted a malicious injury claim against the Dublin.
County Council for this amount. The applicant's claim
failed in the Circuit Court, and, upon the appeal,
Henchy, J. stated a case under Section 38 of the Courts
of Justice Act 1936, having posed the following ques-
tions :
(1) Does the mere release of the mink without
physical damage constitute malicious damage within
the Malicious Injury Code mentioned in paragraph
2 hereof? Answer: Yes.
(2) Is the malicious damage to captive mink com-
pensatable under the Malicious Injury Code? Answer:
This does not arise.
(3) If the applicants are entitled to recover compen-
sation for malicious damage, what is the proper basis
for the assessment of the compensation payable?
Answer : Compensation should be assessed at the value
of the escaped mink considered as breeding mink, less
such sum as was realised from pelting of the re-
captured mink.
Per O'Dalaigh, C. J. : The applicants' claim is that
it arose, not from consequential, but from direct loss.
The applicants are right, as the loss they suffered arose
immediately upon the release of the mink; it was the
direct result of that action. Judgments of Murnaghan
and of Meredith, J.J., in Supreme Court, in
Purcell v
Minister for Finance
(1939) I.R. 124—approved.
[Irish Rexi Mink Ltd. v. Dublin. County Council;
Supreme Court (O'Dalaigh, C.J., Walsh and Fitz-
gerald, J.J.); unreported; 16th July 1971.]
Practice—Principle of Priority of Trial upheld
On 21st October 1971, Murnaghan, J. made an Order
whereby the trial of
Troy v. C.I.E.
was not to proceed
until the trial of
Slattery v. C.I.E., Troy 3rd Party—
had been heard.
The two actions arose out of a collision on 12th
March 1969 between a car driven, by Thomas Troy,
husband of Joan Troy, and a C.I.E. Bus. Thomas
Troy was killed, and Mrs. Troy took her action under
Part IV of the Civil Liability Act 1961. Slattery- was
a passenger in Troy's car, but he had sued only C.I.E.
C.I.E. served a third party notice on Mrs. Troy claim-
ing indemnity or contribution in respect of her late
husband's alleged contributory negligence. In this con-
nection Henchy J. had already directed that the issue of
liability as between C.I.E. and Mrs. Troy should be
tried as separate issues.
Mrs. Troy's action was set down, for trial before Mr.
Slattery's, but Murnaghan, J.'s order deprived Mrs.
Troy of her priority; this had been delivered
ex tempore.
The full Supreme Court held, per the Chief Justice :
(1) The Court will not in the ordinary way interfere
with the administrative aspects of fixing the High
Court list, but, where the arrangement of the list im-
pinges upon the rights of the parties, it is the duty of
this Court to re-examine the matter on appeal.
(2) Murnaghan, J.'s personal preference for trial by
jury of the issue of liability alone separately from that
of damages is irrelevant, as the law requires normally
that the same jury should try the whole case.
(3) It is wholly unacceptable that a jury which, as
ordinarily happens, hears evidence of damages in a
widow's claim under Part IV of the Civil Liability Act
1961 is not to be relied upon, to render a just verdict
on the issue of liability.
(4) The finding of respective degrees of fault in
Mrs. Troy's case will rule the issue in the third party
proceedings in Slattery's case and determine what con-
tribution Mrs. Troy as her husband's personal represent
tative, must make in respect of the damages payable to
Slattery.
Accordingly Mrs. Troy is entitled to retain the priority
of trial and the appeal will be allowed.
[Troy v. C.I.E.; Supreme Court; unreported; 29th
November 1971.]
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