234 / 264
GAZETTE
APRIL 1978
that the statutory preconditions
as to notice had been complied
with.
(lv)In relation to argument by
Counsel for the Defendant that
the appropriation as sought
would not implement the
testator's primary intention, it
was held that as the Plaintiff's
half share, being a legal right,
t a k es p r i o r i ty over t he
Defendant's half share which
derived from the will that the
intention of the testator could
have no part in the operation of
section 55 in the circumstances
of this case,
(v) Having set out in full the require-
ments of section 55, contained in
that section, for its operation —
from the particular facts of this
case the proposed apportion-
ment of the dwelling house and
52 acres would be a valid
exercise of the discretion invested
in the personal representative by
section 55.
The Appeal was dismissed.
CecUa
Hannon
v.
Dcrmot
G.
ODonovan, Joseph Hannon and
Lawrence Hauion
— The Supreme
Court (per Henchy J., with Griffin and
Parke J.J.)—unreported — 26 April,
1978.
NEGLIGENCE
Mea sure of Dama g es —
Interpretation of Restitution In
Integrum Ride.
The Plaintiff bought freehold
premises at No. 66 Aungier Street,
Dublin in 1972 and carried on his
business as an auctioneer on the
ground floor and let the remainder of
the building in eight residential
lettings which brought in a gross
income of about £3,250 a year. The
adjoining premises No. 67 had been
demolished before 1972 and support
had been given to No. 66 by flying
shores erected across the site of 67
and built into the side wall of 68.
The second named Defendants as
contractors to the first named
Defendants began work in September
1975 on the foundations of a new
building to be erected on the site of
67. While doing this they removed
the supports for the side wall of 66
which collapsed in part. The building
could not be repaired and the
r ema i nder of 66 had to be
demolished. The Defendants were
negligent but were not guilty of
intentional default.
The central question in the case
was whether the Plaintiffs damages
was to be the cost of reinstatement of
the premises or the amount by which
the property had been diminished in
value. The pre-damage value of the
premises was £35,000 and there was
evidence that such sum would
purchase similar premises on the
South side of Dublin. The cost of
reinstatement would be £65,000 plus
professional fees and the premises
when reconstructed would have a
letting value of between £2,000 and
£2,500 a year over and above that of
the old premises and would have a
capital value, put by one witness, at
over £100,000.
Held:
(Supreme Court, per Kenny
J.): When a house has to be pulled
down as a result of the Defendants
wrongful a c t . . . the owner is entitled
to restitutio in integrum which means
that the Plaintiff is entitled to recover
such sum as will replace him, so far
as can be done by compensation in
money, in the same position as if the
loss had not been inflicted on him,
subject to the rules of law as to
remoteness of damage.
(British
Westing
House Electric
v.
Underground Electric Railway of
London
(1912) A.C. 689). The
principle of restitutio in integrum
does not involve the subsidiary rule
that in every case where property is
destroyed or demolished the owner is
entitled to recover the cost of
restoration as damages
(Hutchison
v.
Davidson
(1945) S.Cas. 395). There
may be some cases in which damages
equal to the cost of restoration are
the only way to put the Plaintiff back
into the same position as he was
before the accident but these are
special cases and the onus lies on the
Plaintiff to establish that his is one.
The Plaintiff had been carrying on
business in 66 Aungier Street for
about two years only and so cannot
have built up an extensive goodwill
arising from the situation of the
premises. The Plaintiff has totally
failed to establish that his is an
exceptional case and that he should
be awarded the cost of restoration.
Per Henchy J. — The Plaintiff will
have to spend the diminished value of
the premises, £35,000, in acquiring
premises somewhere in the South side
ofthe City and not in Aungier Street or
its immediate vicinity. That might be
unfair or unreasonable if his
circumstances were different but prior
to 1972 he had carried on his
auctioneering business in Rathmines
for six years and there is no suggestion
that it suffered by being transferred to
Aungier Street in 1972.Andthereisno
evidence that it will suffer to any
appreciable extent if it is now
ransferred to another premises in the
South side of the City. It would be a
different stroy ifthe Plaintiffhad a well
established business in Aungier Street
such as that ofa publican, a grocer or a
bookmaker which depended on the
immediate locality for its custom. But
the Plaintiff is an auctioneer and as the
evidence shows he draws his clients
from all parts of the Dublin area.
Reinstatement damages of
£65,000 would not be justified. That
measure of damages would
excessively and unnecessarily enrich
the Plaintiff and unreasonably mulct
the Defendants. For damages
measured at £35,000, the diminished
value of the premises, the Plaintiff
can get premises no less suitable for
his business purposes and with a
similar income potential from
lettings. Such damages will be both
compensatory and reasonable
whereas reinstatement damages of
£65,000 would unjustifiably profit
the Plaintiff and unfairly penalise the
Defendants for their negligence.
Michael Munnelly
v.
Calon Limited
ft Ors
.-Supreme Court (per Kenny
and Henchy JJ . with Parke J.) 5 May,
1978 — unreported.
PATENTS
Patent Act 1964 — Interpretation
Section 65 (1) — Reflisal to convert
convention application to application
under Section 6 (1) alter sealing and
granting of Patent*
The Plaintiff sought an order
pursuant to Section 65 of the Patent
Act 1964 directing the Controller to
make certain amendments to the
Register of Patents. The Plaintiff had
made two Convention Applications
within the meaning of Section 6 of
the Act numbered 33511 and 33574.
Such an application entitled the
Plaintiff to priority as on the date of
application for the patent in the
convention country, in this case the
United Kingdom. The patent in
respect of Application Number
33511 was sealed and granted on the
6th November, 1974. On the 15th