401 / 406
GAZETTE
JULY/AUGUST
1985
same meaning as ascribed to them in the
Income Tax Acts. Furthermore to decide
otherwise would dilute either the Export
Sales Relief or Group Relief which was
not the legislatures intention.
M. Cronin (Inspector of Taxes)
-v-
Youghal
Carpets (Yarns) Limited - Supreme Court
(per Griffin J.) (nem. diss.), 28 March 1985
- unreported.
Larry Brennan
MALICIOUS INJURY
Statutory Interpretation — meaning of
"Wantonly" in Section 5(2)(b) of
Malicious Injuries Act 1981 — damage
shall be taken to be maliciously caused if
caused "wantonly" — damage "wantonly"
caused where the only inference from the
evidence was that the person responsible
for the damage had no regard whatsoever
for the consequences of his action, although
he must have realised the high probability
of his conduct causing damage and that the
risks taken were totally unjustifiable.
Section 5(1) of the Malicious Injuries
Act 1981 in essence provides that where
damage in excess of £100.00 is
maliciously caused to property a person
suffering such damage is entitled to claim
compensation from the relevant Local
Authority in accordance with the Act.
Section 5(2) states that for the purpose of
sub-section (1) damage should be taken
to be maliciously caused only if caused in
one of four ways one of which is
"wantonly". This case involved a youth
of 17 taking his brother's car without
consent, and following a very fast and
dangerous escapade through narrow
streets, finally crashed into the
applicant's car. The youth had never
driven before, was trying to impress his
passenger and drove too quickly. The
Applicant relied on Section 5(2)(b) and
Section 5(2Xd) of the Malicious Injuries
Act 1981. Section 5(2Xd) provides
another way in which damage is taken to
be maliciously caused, i.e., in the course
of, whether or not for the purpose of, the
committing of a crime against the
property damaged. The Applicant
submitted on this point that since the
owner of the car, being used without his
consent, would be entitled to recover in
respect of damage to it, then the owner of
any property damaged as a result of such
car crashing into it should also be entitled
to recover, since all the damage arose in
the same circumstances.
HELD:
(1) The argument on Section 5(2)(d) of
the 1981 Act was unsuccessful on the
basis that if the Oireachtas had
wished to extend the provisions of
the Act to property other than that
against which the crime was being
committed it would have done so
expressly.
(2) On the argument on Section 5(2)(b)
of the Act, referring to the decision
of
McDowell
-v-
Dublin Corporation
[1903] IR 541 the court was of the
view that Holmes L.J. in that case
would have regarded something
done due to vacancy of mind arising
from thoughtlessness as having been
done wantonly. The court also
referred to
Boyd
-v-
Antrim County
Council
(Babbington L.J.) [ 1941 ] NI
127 at 130 and held that before one
can recover for malicious injury it is
necessary to establish
mens rea
on
the part of the person causing the
damage. Quoting from the decisions
of Walsh J. and Henchy J. in
People -
v-
Murray
[1977] IR 360 on the
question of recklessness in the
criminal law the Court reached the
conclusion that on the evidence in
this case the young man had the
necessary
mens rea,
intended driving
as he did, had no regard whatsoever
for the consequences of his actions,
ingnored the probability of crashing
and took an unjustifiable risk. There
the damage was caused "wantonly"
and a decree for the Applicant was
given.
Michael T. Moran
-v-
Leitrim County
Council - High Court (per Barron J.), 25
October, 1984 - unreported.
Ken Morris
LANDLORD AND TENANT
Successive agreements for general garage
business — negotiations for new
agreements broke down — possession
refused — tenancy at will or licence.
The action related to a petrol service
station known as Friarsland Service
Station. By an agreement of February
1974 the Plaintiffs purported to hire to
the Defendants certain garage equipment
and to licence the Defendants to occupy
the Service Station for the use there of
that equipment. The agreement was for a
period of six months from the 1 January
1974 the Defendants to pay the Plaintiffs
the sum of £625.00 by monthly
instalments for the use of the equipment.
It was held in the Supreme Court in 1981
[1981] ILRM 66 that the true construc-
tion of the February 1984 agreement was
that it created the relationship of
Landlord and Tenant and not that of the
Licensor and Licensee and that in effect it
gave the Defendants a Lease of the
premises for six months from 1 January
1974.
The question which arose for deter-
mination in the instant case was whether
the Defendants had any rights and if so
what rights they had in relation to the
petrol service station. The agreement of
14 February 1974 was for a period of six
months. This agreement was followed by
discussions and negotiations but
eventually these negotiations broke down
and no further agreement was concluded.
On 5 November 1974 the Plaintiffs gave
notice to the Defendants that they
required possession of the premises by 14
November 1974 and when possession was
refused they brought the proceedings
claiming possession and mesne rates.
The Court HELD that following the
expiration of the 1974 agreement the
Defendants stayed on in occupation of
the petrol station paying the monthly
payments which had been provided for in
the expired agreement. They continued to
occupy the premises with the concurrence
of the Plaintiffs. The Defendants
continued in occupation in a Landlord
and Tenant relationship but their
tenancy was merely a tenancy at will. A
tenancy at will should be readily inferred
where there is continued exclusive
possession during a transition period
between the expiration of a previous
agreement and the conclusion of a fresh
one. The classic cases in which tenancies
at will are inferred are when someone
goes into possession prior to a contract of
purchase or someone with the consent of
the Landlord who holds over after the
expiry of his Lease. In this case there was
a transitional period during which
negotiations were being conducted
touching the estate or interest in the land
which has to be protected and the tenancy
at will is an apt legal mechanism to
protect the occupier during such a period
of transition. The letter of 5 November
1974 in which the Plaintiffs gave notice to
the Defendants that they required
possession of the premises by 14
November 1974 was effective to withdraw
the Plaintiffs consent to the continued
occupation of the premises by the
Defendants and accordingly the tenancy
at will terminated. Following the failure
to give such possession the Defendants
have been trespassers of the Plaintiffs and
are therefore liable for mesne rates.
Per Henchy J.
The terms of the written agreement
(which were the main reason why the
Supreme Court held in 1981 that the
agreement created the relationship of
Landlord and Tenant) were no longer in
operation. If it is shown that payments
were not made or were not intended to be
paid as rent or to be received as rent the
presumption of a tenancy at will, will be
rebutted. In all cases it is a question of
what the parties intended. It is impossible
to infer a tenancy from the acceptance by
the Plaintiffs of four monthly payments.
Nothing was further from the minds of
those acting on behalf of the Plaintiffs. In
fact the Defendants never pleaded a
monthly tenancy. The circumstances
were such as to negative any intention to
create a tenancy rather than a licence. The
legal relationship in this case after 30
June 1974 was that of Licensor and
Licensee and that when the licence was
xxx