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

(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