The Gazette 1976

GAZETTE

UNE

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,