The section refers to property and seeks to extend the number of instances where compensation may be paid. This is essentially acceptable. Perhaps the Minister would like to develop slightly on what is meant by a "mere pleasure or amenity". In so far as these are tangible it is difficult to see why they have not been included. The definition of "ship" is something one would recommend since it extends the type of vessel for which compensation may be claimed.
Malicious Injuries Bill, 1980: Committee Stage.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I understand that we have not a legal definition for "pleasure or amenity".
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
This section provides that the Bill when enacted will not have effect in relation to damage caused or loss suffered before its commencement. When the Bill is clearly designed to improve the situation, I wonder why people should not be entitled to benefit from the date of enactment. If actions had already been initiated would it not be reasonable to ask that the legislation would apply from the date of its coming into effect?
This is the usual procedure in existing law.
That does not necessarily make it right.
That is the position.
Does the Minister propose to change it?
No.
Question put and agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill."
This section refers to repeals. Section 107 of the Grand Jury (Ireland) Act, 1836 refers to compensation to persons maimed and to representatives of persons murdered in certain cases, namely, having given information or evidence against any person charged with an offence against the public peace. It also refers to a magistrate or other peace officer murdered or maimed on account of his exertions to bring disturbers of the public peace to justice. Offences against the public peace are either such as are an actual breach of the peace or constructively so, intending to make others break it. This includes riotous and unlawful assemblies, riots, assaults, forcible entry, challenges to fight or anything tending to incite others to break the peace.
Recently I understand that a witness in a case in the Special Criminal Court was kneecapped in County Donegal. I wonder if the scheme of compensation for personal injuries criminally inflicted refers only to breaches of the public peace and whether it would apply in this case.
Personal injuries are not provided for within the scope of the Bill. Section 106 of the Grand Jury (Ireland) Act, 1836 provides for the payment of compensation by a local authority in respect of the murder or maiming of a person who has given information or evidence against any person or persons charged with any offence against the public peace.
Do I take it that a witness in a court case who had been injured would be liable to be compensated?
It is possible.
Is the Minister certain?
The Deputy is asking me for legal advice which I am not in a position to give.
What about an instance where a witness is intimidated or even shot by a person with an interest in ensuring that the case will not go ahead?
As I have already stated, section 106 provides for compensation of any person who has given information or evidence against any person or persons charged with any offence against the public peace.
Does that include gardaí?
Gardaí are catered for under the Garda Síochána (Compensation) Acts of 1941 and 1945 which provide compensation for death or injury of members of the force as a result of a malicious act. It is a separate provision.
Is there any reason why section 106 of the Grand Jury (Ireland) Act, 1836 refers only to breaches of the public peace? What is the rationale behind it? I can think of circumstances where it would be right that compensation would be payable but it might not be construed to be a breach of the public peace.
Section 106 is not being repealed by this Bill.
Does it mean that a domestic row would not be included because it might not involve a breach of the public peace?
It provides for compensation by a local authority in respect of the maiming or the murder of a person who has given information or evidence against a person charged with an offence. Perhaps the Deputy means a domestic row occurring in the street, although that would not be my definition of a domestic row.
The section refers to a breach of the public peace. Does this mean that a domestic row occurring in a private place would not be included? It could be that a husband was to give evidence against his wife.
I could not adjudicate on that. It would be a matter for the Director of Public Prosecutions.
If it was not covered by the law it could not be decided by the Director of Public Prosecutions.
Question put and agreed to.
SECTION 5.
I move amendment No. 1:
In page 4, subsection (2) (d), line 9, after "crime" to insert "against the property damaged".
In so far as section 5 (2) (d) provides that damage caused for the purpose of committing a crime is taken to be maliciously caused, it simply reproduces the present law. The other element in section 5 (2) (d) is a provision that is new to the law, namely, that damage shall be taken to be maliciously caused, and therefore compensatable, if caused in the course of the committing of a crime. The main purpose of this new provision is to cover the inevitable loss that is caused to a motor car owner when his car is taken without consent or stolen outright and then accidentally damaged while being driven by the offender. Of course, if the offender deliberately damaged the car, for example, by setting it on fire, that would be malicious damage and would be compensatable without benefit of this new provision.
As it stands in the Bill now, this provision is too wide in its scope and there is a real danger that it would give entitlement to compensation in situations that it was not intended to cover and that quite clearly should not be covered. For example, if a person drives his own car without displaying his tax disc or while committing some other regulatory offence, such as having no rear light, and damages another person's property, say his car, by accidentally colliding with it, that other person would appear to be clearly entitled to compensation under the provision as it stands because the person driving without a tax disc is committing a crime and the damage caused to the other person's property would have been caused in the course of the committing of that crime.
There are a number of difficulties in this section, especially in relation to subsection (1).
We are dealing with the amendment first.
I have no objection to the amendment.
Amendment agreed to.
Question proposed: "That section 5, as amended, stand part of the Bill."
In subsection (1) we see once again the concept that wherever the poor man is involved there appears to be a lesser standard of justice obtaining. Subsection (1) restricts the compensation for malicious damage to amounts that exceed £100 and that appears to me to be fundamentally wrong. I can see there would be a certain amount of administrative difficulty in dealing with many claims for small amounts, but it is necessary to prove in all cases that malicious damage has occurred.
There are many people for whom a sum of £70 or £80 is a significant amount — widows, people on social welfare benefit and many others who can ill afford loss through malicious damage. I contend that such people should not be outside the scope of this Bill and I take issue with the Minister on this point. It appears to me there is an elitist attitude about what is right and just. Obviously there are many cases where damage exceeds £100 and there is no problem there. Let us consider the situation where the property of a person is damaged to the tune of £120 while another person suffers a loss through malicious damage of £80 or £90. That latter person will be excluded by this Bill. I do not believe administrative difficulty should be used as an excuse for denying justice to such people. I do not wish to be associated with any measure that incorporates a dual standard of justice, one standard for those with major claims and the other for those with small claims. In the eyes of some people, presumably those who drafted this Bill, the claims in the latter category do not appear to be worthy of consideration. I could see where damage to property amounting to £90 could have far greater significance for the owner of that property than damage to the extent of £9,000 or £90,000 for another person.
I presume the reason for setting the limit is the question of costs and also an effort to stop a large number of actions where the costs of the action might be greater than the amount awarded in compensation. However that is a separate problem. I do not believe the way to deal with the problem of costs of legal actions or disproportionately large costs relative to the sum involved is to stop such actions being taken. Two wrongs do not make a right. I ask the Minister to reconsider the matter.
The consequences of a minor amount of financial damages may be great. Clearly, everything is relative. Arguably this section has been devised with good intent, namely, to stop a plethora of actions being taken, but sufficient consideration and sensitivity have not been given to the importance of each action to the person concerned. Regardless of whether the amount is £90, £900 or £9,000 people have the same right. We are not talking of giving something to people that is not theirs. We are talking of restoring to them something that is their right and of which they have been deprived. The degree to which they are entitled to that return should not be dictated by an arbitrarily chosen figure, above which a person is deemed to be entitled and below which he is not so deemed. That is unjust and it flies in the face of the constitutional tenets we hold dear, such as Article 40 which states that all citizens should be equal before the law. Apparently that does not apply here. If one is a citizen with a claim of less than £100 one is not equal before the law. The section is inappropriate and misguided and should be withdrawn.
During discussion on Second Stage I said this section was wrong mainly because of the fact that poor people can suffer a greater loss in proportion to their worldly goods than those who are rich. If a person is fined £200 for driving a car while under the influence of drink or crashing that car, that amount will mean nothing to him if he is rich; but if a person is fined £5 and has not that amount he is in a very serious situation.
Unfortunately in Dublin and throughout the country vandals think nothing of breaking the windows and doors of property belonging to old people, or even setting fire to their homes. In many cases the damage may be relatively small, perhaps amounting to £40, but such an amount of money represents a very considerable sum to the old person concerned. What the Minister is proposing in this section is a mistake and I appeal to him to reconsider the matter.
I am sure he has heard, as all of us have, about the hardship that can be inflicted on somebody whose property is damaged. The value of money has dropped to such an extent that £100 may not appear very much to those who have money but it is practically a fortune to those who have not got the money. Administratively this may appear to be the right thing to do but it is not the right thing when it comes to people who have not got the money to pay for the damage themselves. I appeal to the Minister to have another look at the matter.
I should like the Minister to answer a question I raised on Second Stage, namely, why it is not proposed to alter the rule, which is not a statutory rule so much as a judicial interpretation, whereby consequential loss is not a fit subject for compensation. Not only is it not proposed to remove it but the rule enunciated by the Supreme Court is now given statutory dress in that section 5(4) expressly excludes compensation for any loss consequential on damage. In a sense the malicious injuries applicant will be in a weaker position after this Bill is passed than he is now. Although the existing law deprives him of consequential loss, that law is only judicial law-making, the result of a decision by the Supreme Court in one or two cases. I do not wish to belittle the Supreme Court. It hands down the law and must be respected as such until it is declared otherwise. In about four cases in the past 15 years, every one of them of significant importance, the Supreme Court has changed its mind on being convinced that its previous decision was wrong. I think one of the instances was in this same area. Nobody can be certain that the court might not change its mind again but there will be no room for doing that once the idea that malicious injury awards do not include consequential damage is entrenched in statute. As I said on Second Stage, if the reason is that the State cannot afford to assume the burden of meeting consequential loss, well and good. To me that is a perfectly good argument and I do not quarrel with it.
The State has taken on far too much and, in many cases, for the worst possible reason, and if the answer is that the State has enough on its back and cannot take on this additional burden, I will not quarrel. However, the Minister of State should be heard to say that and it should not have been slipped through here as if it were something unimportant.
As I said on the Second Stage debate, a shopkeeper whose premises have been damaged maliciously may incur a relatively small loss in so far as reinstating his premises is concerned, but he may lose a great deal of business during that period and his competitors who are anxious to catch up with him may overtake him and he will be at the loss of that custom. These are heads of damage which an ordinary civil action would take into account. I do not say that the code we are now dealing with is comparable with civil liability, but I emphasise what can be for many applicants in malicious injury cases a very important matter: a very important head of their real loss is being excluded and that exclusion is being nailed down by statutory words in a way in which it has not been up to this. At the very least the Minister owes it to the House to tell his reasons for that. If it is that the State cannot afford it, let us at least hear him say that.
Under the existing law in most cases compensation is payable when the amount does not exceed £5 and in some instances the figure is less. The figure of £5 was fixed in 1898. In 1963 the inter-departmental committee on malicious injuries recommended a figure of £20, and when adjusted by reference to the CPI, £20 in mid-November of 1963 would be equivalent to £91.80 in mid-November 1979. In mid-August 1980 it would be £104.61. The committee also found that the costs involved in hearing certain cases were greater than the amount of the claims themselves and they suggested that an undue number of trivial claims would likely be made. What we are doing in this Bill is raising the amount to £100. It is a cut-off point and I do not propose to change it.
In relation to Deputy Kelly's comment in relation to subsection (4), which provides that compensation shall be paid only in respect of actual damage caused and excludes compensation for consequential loss, the committee on malicious injuries recommended that compensation should be in the nature of damages at common law, that is, include compensation for consequential loss. The financial implications of that recommendation for local authorities could be extremely severe and consequently no change in the existing law in this regard is proposed.
In the case of businesses where consequential loss would be likely to be especially serious, it is not too much to expect that most or perhaps all owners would have their own insurance. Section 19 proposes that the Exchequer will refund to the local authority the cost of compensation in excess of the produce of a rate of 20p in the £ in any one year. At present only a small number of local authorities have had to be recouped. It is known that, if consequential losses were provided for, the financial implications would be enormous for local authorities. It would impose an extraordinarily heavy burden on the State in the ultimate. I am satisfied that protection in this Bill in respect of consequential loss would not be of any great significance in view of the insurance protection that obtains at present.
The Minister twice referred to the burden that would be imposed on local authorities if the benefit of malicious injury compensation was extended to consequential loss. The Minister knows that his Bill contains provisions whereby, if the malicious injuries components of the local authorities' burden exceeds the produce of 20p in the £, it must be picked up by the State. So it is the Government who cannot meet it.
I said "in the ultimate".
The Minister should have said it at the beginning.
I said it. Does it make a lot of difference when I said it?
Why make it necessary to track it down? It is ultimately the Government who cannot afford it. I do not complain about that. I would not recommend that the law be any different. But the Minister's final argument in regard to insurance I completely fail to understand because he himself has introduced a whacking great amendment which has the purpose of recouping, of clawing back from successful applicants, the amounts of awards they may have received, even going so far as the substance of their property. There is no validity as far as damage to the substance is concerned as there is to consequential damage. If what the Minister is suggesting is that people should insure their own property and make sure that if it is maliciously damaged they will be covered, we must appreciate that that goes equally for the substance of their property following damage to the property. I cannot see any difference between the two, and the Minister's argument would have been a great deal stronger if he had not added the final few sentences.
I have frankly admitted that the Bill contains some improvements on existing law, but the Minister has admitted frankly the reason for this judicial rule — it is no more than that — laid down in a case dealing with malicious attacks on Silvermines, and his entrenchment of that rule in this legislation is working in the opposite direction: it is tending to narrow down the applicant's potential compensation. That is against the spirit of the rest of the Bill and it is only right that should be said.
The Minister's argument about insurance makes the argument against the section much stronger. The people I am concerned about are very poor. They do not insure and if they suffer they will not receive any benefit because of the way this Bill is worded. Houses are damaged quite frequently at present and if people are quick enough they can make a claim for compensation. Such people normally are not insured and they are the people who will suffer most because they cannot recover the damage. People have to apply within a limited time and this is a special problem for old people whose houses may be vandalised every couple of weeks. Each such case of damage would be excluded under the £100 rule and consequently such people may be left in uninhabitable houses because they cannot pay for repairs and the Minister is making sure they will not get compensation from the Government. As Deputy Kelly said, it is the Government in the end who will be responsible.
Therefore, in common decency the Minister should have another look at that. The people I have been talking about will have to claim compensation within seven days and this imposes grave hardship on them. They are people who have not got money, who are living from hand to mouth and I am sorry to say that their situation is being worsened. If the Minister cannot manage a general section that would cover this he should alternatively make some other provision for such people.
I agree with Deputy Tully and I will not repeat what he has said. The views he has expressed are shared by Deputies on all sides of the House. A discussion has been opened as well on subsection (4) of section 5. The point to be made there is on the question of ruling out consequential damage. I do not think we should take refuge in either the hope, fairly pious to some extent on account of insurance rates, or the belief or the expectation that somebody else will pick up the tab or that the burden on the local authorities would be too great. If the burden is too great for the local authorities it is an admission that there is a burden and it is really a question of who bears it. Surely the people who should not bear it are the people who have been wronged, and those who have been wronged are those against whom malicious damage or injury has been inflicted. The actual damage caused might frequently be the minor portion of the loss.
For instance, if a lorry which is the sole source of income is destroyed, the owner might not be able to finance another lorry quickly and his consequential losses, that is the loss of his profits and his livelihood, are very significant. After a lot of legal hassle he will get damages for his lorry if he is lucky. It may well be that a minor amount of damage to the lorry could put him off the road for a month or so. In that event it might well be that the loss of earnings for a month are far more serious than the cost of repair which might be relatively simple but, because a part was not available or for some other reason, the lorry could not be repaired quickly. There are many examples of this.
So it seems to me that for commonsense reasons and, speaking on behalf of the average citizen, the famous man in the street, we should reject this curtailment of compensation. The Minister may say that it is compensation and not damages. The point is of course that it is compensation for loss arising from the malicious injury or damage inflicted. By any stretch of the imagination it is reasonable to conclude that that damage or that injury is the immediate loss plus the losses that arise only because of that immediate loss. Let us take a situation where some kind of damage has been inflicted on the lorry that I am talking about which costs less than £100. It might put the owner off the road for six months waiting for a part to be imported and that man, under this Act, is not even entitled to lodge a claim for malicious injuries because the damage did not come to more than £100.
That is not justice by any stretch of the imagination. The concept here should be damages as understood at common law and we have here an opportunity to set right a wrong. Therefore I would ask the Minister to look again. If the argument for justice not being accepted here as a right and fitting principle is that the burden on local authorities is too great — and that means the Government because they are funding the local authorities — then let us admit that, because that is a separate issue. But it is quite wrong to penalise the average citizen and of course, as in most cases in this House, the lower on the social rung the particular citizen is the more damage and the more injury and the more hurt we expect him to accept. That is not right. I know in my heart that the Minister must agree with what we are saying here. There is not just the injustice of refusing consequential damages, which is obviously improper, but also the question that some people, usually those at the lower end of the socalled socio-economic ladder, are going to be ruled out all together. Those are two wrongs embodied in this section and they should be and must be rejected.
While I am on my feet I should like to refer to subsection (2) where, again, an improvement could be brought about. In subsection (2), paragraph (c), where we talk about damage maliciously caused only if caused by three or more persons unlawfully, riotously or tumultuously assembled together, the reference to three persons being unlawfully assembled is derived from the definition of unlawful assembly at common law. There is no logical reason why this should be retained and I would ask the Minister to justify its retention. It really should be reduced to two. Once again we can see a situation occurring where two people, unlawfully, riotously and tumultuously assembled, could inflict malicious damages very severely; but we are told that in those circumstances the injured person would not be entitled to malicious damages. That clearly is an outdated concept which, like a lot of things in this Bill, should be changed.
I would like to ask the Minister what is the justification of the retention of this outdated idea. It might be argued, I suppose, that it is not logical to reduce it to one and that there could not be an assembly of one; but I would say that I would be willing to consider even that. What is important is not how many people are engaged in the act of malicious damage or malicious injury but simply the loss to the person who is suffering and the best system of mechanics for replacing or restoring that loss. The number of people involved is small comfort to the person who has suffered and it should not be a germane factor in all of this.
Therefore, on a number of grounds we have grave reservations on this section both on the question of the cut-off point of £100 and on the question of the cut-off point — because that is what it is — of restricting malicious damage claims to damage caused, in the context of subsection (2), by three or more persons; and, last, the very important area of consequential damages as in the case I outlined where a person might find that the immediate loss of a vehicle or premises or working utensils are in fact the smaller part of that real loss. There is a very strong case to be made there for amendments or for remedial action on this section. I would appreciate it if the Minister would be good enough to comment on the points made.
I have already explained that subsection (1) does not propose to change the existing law. It is merely raising the limits in accordance with the new values for money today.
Would the Minister accept that there are circumstances under which the existing law might not be the best at this time? I am asking the Minister to look at that to see if it can be improved.
In any humanly made law I accept that there can be imperfections but it is the best that the Government and I can produce and I am satisfied that it is adequate.
The Minister is not doing himself justice.
I am satisfied that it is adequate. In relation to the consequential loss referred to by Deputy Kelly, in 1975 there was a case in the Supreme Court against Tipperary North Riding County Council. The amount of malicious damage was £29,000 and the consequential loss as a result of the disruption of mining activities amounted to £220,000. The Supreme Court ruled that a claim in respect of consequential losses could not be maintained.
Was it because the amount of money was so big?
Not necessarily. The principle is what was involved.
The Minister is making a case——
I am not making any case. I am quoting a Supreme Court case and that is not making one. I am quoting it in reply to a comment that was made by Deputy Kelly which might not necessarily have reflected what we were debating. It would appear that Deputy Kelly was speaking about a section 3 amendment, which we have to meet yet, which would suggest, according to what he said, that there was a clawback operation about to be effected by the introduction of this amendment by the Government. That is not the case. Anybody is entitled to malicious damage compensation under the existing legislation or under the Malicious Injuries Act, 1980, if they qualify in the normal way and their compensation is granted to them. If they are insured, the insurance company may make a settlement with them and there is no question of payment being required to pay back any moneys that the central Government may have recouped to the local authority.
Progress reported; Committee to sit again.