The Gazette 1982

CIA/E T N

JANUARY/FEBRUARY 1982

vary the amount specified at £100 in the Act.

Section 12 shuts out compensation where the

applicant connived at, assisted in or actively facilitated

the causing of the damage or was associated with the

damage feasor. Such damage as is attributable to failure

of the applicant to minimise his loss is also

irrecoverable. Failure by the applicant to take

precautions to avoid the damage and his conduct

generally allows the court to reduce the amount of

compensation.

An Exception to the no-compensation-for-larceny

rule arises when more than £100 worth of damage is

caused to a building or to property within the curtilage

of a building by a group of three or more persons

tumultuously and riotously assembled together, and, in

the course of the riot, any property is unlawfully taken

from the building, the person who suffers the loss of the

property taken can claim compensation - (Section 6).

ONUS OF PROOF

The applicant for compensation must prove, on a

balance of probabilities, that

(1) property in which he could be described as having

an insurable interest and for the making good of

which he is responsible has been destroyed or

damaged.

(2) the injury to such property was caused in one or

more of the ways set out in section 5.

(3) he thereby suffered loss, and

(4) the amount of that loss.

The applicant will normally attempt to agree the

amount of loss and/or existence of malice with the

respondent local authority and thus dispose of the

application on settlement or, at least, thus reduce the

issues to be tried by the court.

PROCEDURE

The procedure is that within 14 days after the damage

was caused (or the property taken in a riot) the applicant

serves a Preliminary Notice in the prescribed form in

accordance with section 8 and with the Malicious

Injuries (Preliminary Notice) Regulations 1981 (S.I. No.

319 of 1981). The notice is served on the respondent

local authority (either the county council or the county

borough council) and on the member in charge of the

Garda Station - in both cases, for the areas where the

damage was caused or the property was taken.

The person who served the Preliminary Notice may

then serve an application to the court for compensation.

This application is known as Final Notice and will be

made in accordance with rules of court.

If the amount claimed is £2500 or less, the application

is brought in the District Court in the District Court

district in which the damage was caused while if the

amount claimed exceeds £2500 the application is

brought in the Circuit Court circuit in which the damage

was caused.

A Notice may be served personally or by registered

post and can be effected by the solicitor or other

authorised agent of the applicant; it does not have to be

served by a Summons Server.

The Final Notice is served on the local authority on

which the Preliminary Notice had been served. This

Notice - with proof of service on the local authority - is

filed with the County Registrar or the District Court

Clerk, as the case may be, and serves to set the

application down for hearing.

A claim becomes statute barred three years from the

date of service of the Preliminary Notice.

An appeal by way of re-hearing lies at the instance of

any party - and it should be remembered that the Act

retains the right of a ratepayer to appear in any

application-against a decision of the District Court to

the Circuit Court and against a decision of the Circuit

Court to the High Court. Section 18 introduces a

flexible case stated procedure to obtain the opinion of

the Supreme Court on any point of law arising during

the hearing

EFFECT ON LOCAL AUTHORITIES

The local authorities will welcome;

(a) recognition of what has long been the practice

-that claims will now be made only against the

County Council or the Corporation and that the

smaller local authorities disappear from the

picture;

(b) the simplicity of awards being payable by the

county at large and not specific localities;

practice by which the Department of the

Environment refunded the excess of awards over

the yield of twenty pence in the pound from local

rates

ROYAL COLLEGE OF

SURGEONS IN

IRELAND

The Royal College of Surgeons in Ireland is a

privately owned Institution founded in 1784. It

has responsibility for post-graduate education of

surgeons, radiologists, anaesthetists, dentists and

nurses. The College manages an International

Medical School for the training of doctors, many

of whom come from Third World countries where

there is a great demand and need for doctors.

Research in the College includes work on cancer,

thrombosis, high blood pressure, heart and blood

vessel disease, blindness, mental handicap, birth

defects and many other human ailments. The

College being an independent institution is

financed largely through gifts and donations. Your

donation, covenant or legacy, will help to keep the

College in the forefront of medical research and

medical education. The College is officially recog-

nised as a Charity by the Revenue Commis-

sioners. All contributions will be gratefully re-

ceived.

Enquiries to:

Hie Registrar, Royal Colege of Swgeons in

Ireland, St. Stephen's Green, Dublin 2.