The Gazette 1986

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GAZETTE SEPTEMBER 1986
enactment of the Malicious Injuries Act on
6 November 1981.
The fire occurred in what was called a
box-room at first floor level in a relatively
large new structure. The only other room at
the same level was the Managing Director's
Office which provided the only access to
the box-room. Cardboard boxes were made
up in this room for the packaging and
supply of various quantities of meat. This
room had a large quantity of " f l a t s" — the
cardboard kit for the boxes on the day of
the fire and also a number of completed
boxes, some stacked at a point leading
from the office door towards the centre of
the box-room and some, already completed
with the addition of an adhesive label,
contained in chutes leading from the box-
room to the ground floor. The flats were
stacked in the centre of the box-room and
they rested on a wooden pallet made of a
number of slats.
Two operators were employed to work in
the box store, one aged 15 and the other,
who was his brother, 17. Their job was to
make up the boxes, stick the appropriate
label on each, and send them down through
the chute as required. Both were working
there a few months and were regarded as
satisfactory workmen. Adhesive labels, in
several different forms, were contained on
rolls of backing paper, which rolls hung
from the ceiling and it was the practice to
tear off a strip from time to time, remove
the labels and discard the remaining
portion of backing paper, which might
vary in length from six to twelve inches.
While there were some containers for that
purpose, apparently the litter created by
the backing paper was not put into the
containers but allowed to lie on the floor.
The backing paper was impregnated with a
paraffin-wax which made it highly
flammable. There was nothing else in the
box-room of so flammable a nature
although the flats and boxes were
flammable to some degree.
There was no evidence of an electrical
heating or like fault. The fire was caused by
backing paper becoming ignited and
consequently setting fire to the cardboard
flats. Smoking was prohibited in the
factory during working hours, but two
breaks for smoking were allowed during
the day, the first being at 11.00 a.m.
The Applicants made the case that the
fire was caused by the deliberate act of the
younger of the two brothers working in the
box-room in igniting the backing paper.
They sought to establish this by proving:
(a) the allegedly tidy nature of the box-
room on the morning of the fire before
the arrival of the two brothers;
(b) the nature of the fire as first seen by the
Managing Director — flames, coming,
as it were, from the floor and running
along the short side of the flats nearest
to the chutes, possibly a little around
the back and reaching up above the
level of the flats;
(c) the evidence of a fire expert who
carried out certain tests in which some
six metres of backing paper, about half
crumpled and the other half lying on
the floor was ignited alongside a
number of flats lying, not on a pallet,
but on a floor, and in which the flats
failed to ignite. Fifty boxes were
labelled that morning before the fire;
this would amount to 100 labels which
would, together on a roll of backing
paper, measure some four metres;
consequently it contended there was no
possible way in which such a small
amount of backing paper could be
responsible for an accidental fire.
Accordingly, the Applicants contended
they had excluded innocent accident and
had established a criminal act.
The Applicants' case having concluded,
the Respondents did not call any evidence.
The Court considered it proper in the
interests of justice to call the younger
brother employed in the box-room as a
witness. His account of the incident was
that when the smoke break was called he lit
a cigarette for his brother and himself, and
threw the match over his shoulder, not
knowing whether it was lighted or not.
The Court was not satisfied on the
inferences properly to be drawn from the
evidence that the fire was caused
deliberately in its ordinary meaning, but
that there was a wanton disregard by the
boy of the consequences of his act. It was
greatly doubtful that he threw the match
over his shoulder. But it was impossible to
believe that, assuming he merely threw a
lighted match away, he or his brother
would not have seen the immediate
incendiary effect on the torn backing paper
and the fire that must have followed so
quickly. They had to go over and open the
office door, go into the office and close the
door behind them. By this time, on any
view, there must have been a significant
flame readily apparent to anyone who
looked. The Court did not accept that they
left the room ignorant of the fire that was
already there, or, in the case of the younger
brother, innocent of its cause. As the case
appeared to the Court if the Applicants
established that the younger brother's
conduct was grossly wanton and reckless
this constituted malice within the meaning
of the code.
The Respondents contended that on the
true constructions of the sections of the
Statutes which comprised the malicious
injury code before the 1981 Act the test to
be applied was subjective — did the doer
know that what he did was likely to cause
damage — was the act done deliberately
with the actual knowledge that it would
cause the damage? In support of this they
cited a number of English criminal cases of
which R. -v- Pembleton [1874J L.J.M.C.
91 was particularly apposite since it was
referred to by the Supreme Court in the
Case of Wexford Timber Company -v-
Wexford Corporation and A nor. 88 ILTR
13. The principle suggested is another way
of stating that an applicant for compensa-
tion under the code must establish that a
crime was committed — the crime in
question being clearly one that required
criminal intent.
Kingsmill Moore J. in the Wexford
Timber Company case said:
"Constructive intention exists where the
natural and probable result of the action
would, to the knowledge of the doer, result
in injury to the property and where the
doer, although he may have had no desire
to cause such injury, was reckless and
uncaring whether such injury did or did not
ensue. . . . Assuming that the fire was
caused by a light carelessly thrown into the
waste paper basket without any anticipa-
tion thai a fire might result, or knowledge
thai such a result was natural and
probable, the thief would nol be guilty of
malicious injury, unless he saw the fire
starting al a time when he could have
quenched il wilhoul any risk or difficulty
and deliberately refrained from so doing,
either desiring the fire to spread or reckless
whether il did so. If such desire or
recklessness existed, I am of I he opinion
that his initial careless act and his
subsequent deliberate abstention from
action would be so closely connected thai
he could be held lo have acted with
malicious intent to cause injury."
It is upon this passage that Counsel for
the Applicant relied and, in the view of the
Court correctly relied. Even without any
such observation, it seemed to the Court
that in circumstances of this kind one must
look at the entire situation; it followed that
the facts proved supported a legal finding
of malicious damage which the Court
made.
Cases Cited
R. -v- Pembleton [1874] L.J.M.C. 91.
R. -v- Cunningham [1957] 2 All. E.R. 412.
R. -v- Briggs [1977] 1 All. E.R. 475.
R. -v- Parker [1977] 2 All. E.R. 37.
R. -v- Stapleton [1979] 2 All. E.R. 1198.
Kenneally -v- Clonmei Corporation 89
. 164.
Dinan Dowdall Limited -v- Dublin
Corporation[1954] I.R. 230.
Dundon -v- Limerick Corporation 1955/6
IJR 17.
Wexford Timber Company -v- Wexford
Corporation & A nor. 88 I.L.T.R. 13.
Laity -v- Meath County Council (High
Court — 11 April, 1984 — unreported).
Agra Trading Limited -v- Waterford
County Council — High Court (per
McCarthy J.) 11 October and 9 November
1984 — unreported.
Daniel Brilley
FAMILY LAW
Nullity decree granted on the ground that
at the time of the marriage the Respondent
was suffering from a psychiatric illness as a
result of which he was unable to enter into
and sustain a normal marriage relationship
with the Petitioner.
In 1976, the Respondent, Mr. R., was
diagnosed as suffering from paranoid
schizophreina. After hospital treatment he
began to take a long-acting injection as
treatment for the illness.
In May 1981, he went out for the first
time with the Petitioner, and following
their engagement in September, they
married on 4 December 1981. Mrs. R. was
not aware of her husband's illness and it
was only on their return to Ireland after
their honeymoon (when the marriage was
consummated) that she began to notice
something was wrong. Mr. R. became
quiet, introverted and sleepless and his
attitude towards his wife began to undergo
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