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CIA/E T N
JANUARY/FEBRUARY 1982
An intention to cause damage will be presumed if
such damage is the natural and probable consequence of
the act which a reasonable man ought to have foresee.
Compensation can be recovered (a) for the result of the
malicious act itself; that is for the damage which flowed
from the malicious act either because the wrongdoer
directly intended to cause that damage or he is deemed
to have intended it in that the damage was a necessary
consequence or a probable result of the act, or (b) for
loss arising in the course of the commission of a crime
against the property even where the damage to that
property was not intended (e.g. compensation is payable
to the owner of a painting dropped by a thief during his
getaway and thus damaged even though the thief's clear
intention was to carry off and later dispose of the
painting in an undamaged state and indeed the thief was
probably as upset by the damage as was the owner).
"Wantonly" caused means that it stems from an act
done recklessly without caring whether injury resulted
or not and it goes beyond mere negligence.
'Wantonness' is not an easy concept and modern
judicial interpretating may well be sought. Holmes L. J.
In
O'Do we11
v.
Dublin Corporation
[1903] I.R. (2)
states at page 555 that "wantonly" means recklessly,
thoughtlessly or without regard for right or
consequences". 'Wantonness' would suggest not only
an indifference to consequences but an unrestrained
disregard of them.
When damage is caused by three or more persons
unlawfully, riotously or tumultuously assembled
together, there must be an unlawful act - some fault
even if only a civil wrong - by the damage feasor.
Subsection (2) (d) of Section 5 brings in compensation
for damage caused in the course of, whether or not for
the purpose of, committing a crime against the property
damaged, and will greatly widen the scope for claims. It
would appear to bring in claims where a vehiclfe is
unlawfully taken and later found damaged; such claims
were usually unsustained under the previous law
because it could not be proved that there was a causal
connection betwen the taking of the vehicle and the
crashing of it; the crash might have been caused by the
driver's negligence or his inexperience or indeed by the
negligence of some other road user. The 'taking' of the
vehicle does not have to constitute a larceny of the
vehicle; it is enough if the taking contravenes section
112 of the Road Traffic Act 1961.
The applicant for compensation must rebut the
presumption against crime; he cannot succeed when the
damage could have been caused innocently or
wrongfully and there is no indication which caused the
damage. The applicant should, if possible, produce eye
witnesses to the malicious act. If none are available he
must produce indirect evidence which can be affirmative
or negative.
Affirmative
prove a chain of circumstantial evidence
inferring guilt against some person or persons unknown;
it is in this context that 'malice' in its usual sense comes
in
Negative
adduce proof to exclude the reasonable
probability of damage having arisen innocently; the
judge may then draw the inference of malice.
The applicant does not have to exhaust or even pursue
his remedies against the wrongdoer before making a
criminal injury application but he is likely to get less
compensation from the local authority than he would
from the wrongdoer (assuming the latter to be a mark
and can be found) because the local authority is not
liable for the applicant's consequential loss or for
exemplary damages.
It is no longer a defence to a claim for compensation
to show that the damage was caused by a person of
unsound mind or by a child.
In addition to the exclusion of compensation for
property stolen, save in the case of a riot, an applicant
will not be compensated for consequential loss e.g. the
hire of a car while his own damaged car is being
repaired.
COSTS
Costs awarded to an applicant will be in accordance
with Regulations which section 15 (2) of the Act
empowers the Minister for Justice to make.
Practitioners will have to acquaint themselves with these
Regulations when they are published as they will
regulate solicitors' costs and counsels' fees where costs
are payable by the local authority. In the relatively few
cases where costs will be payable by parties other than
the local authority, such costs will be agreed or
determined by rules of court and here again
practitioners will have to await their publication.
VENUE
The applicant must be careful to bring proceedings
against the local authority in whose area the damage
occurred or, in the case of property taken unlawfully
from one local authority area and found in another
against the local authority for the area from which it
was removed.
POWER TO SETTLE
Local Authorities may now settle claims and make
lodgements as in Civil Cases. The local authority may
recoup itself from the damage feasor but it must now
pay the compensation without waiting for the award to
be included in the estimates for the next financial year
and waiting further for the rate for the following year to
be levied and collected.
COMPENSATION:
EXCLUSIONS AND REDUCTIONS.
No compensation is allowed for damage to or loss of:
coins, bank notes, postal/money orders or stamps;
articles of personal ornament including watches or
jewellery (kept otherwise than as stock-in-trade).
Nor is compensation allowed for damage to
unauthorised structures within the meaning of Planning
Acts.
No compensation is payable unless damage exceeds
£100 (previous threshold -£5). Where the claim exceeds
£100 the court will reduce the award by £100 unless the
claim is in respect of the same property damaged within
the previous 12 months. The Minister for Justice may,
with the consent of the Minister for Finance, by order,
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