Neutral Citation: [2013] IEHC 555
THE HIGH COURT [2011 No. 653 J.R.]
BETWEEN
GERARD BURKE
PLAINTIFF AND
SOUTH DUBLIN COUNTY COUNCIL DEFENDANTS
JUDGMENT of Mr. Justice Hedigan delivered on the 4th day of December 2013
1. This has been an assessment of damage sustained by the plaintiff as a result of the unlawful withholding and subsequent disposal and destruction of four of his horses in or about July 2011.
2. The only loss and damage that this court can deal with arises from the loss of the horses. Any claim the plaintiff makes in relation to the loss of the livery business that he had does not arise because, as he stated in evidence himself, clients would not leave horses with him because they considered the area unsafe for the keeping of horses. The County Council bears no responsibility for that state of affairs.
3. As to the damage sustained by the loss of his four horses, unfortunately the plaintiff has come to court with a wildly exaggerated claim. The evidence proffered by him is quite simply not credible. He has located his claim in a spectrum somewhere between the possible and the remotely possible and closer to the latter. This court, like all courts exercising a civil jurisdiction, can only act upon matters proved to the balance of probabilities. It cannot enter into the realm of this kind of possibility, in particular here, the one chance in a thousand that an unproven horse or its offspring will turn into a high performance example of horseflesh.
4. The plaintiff has produced no concrete evidence, good, bad or indifferent to establish what he paid for the four horses. His solicitors, somewhat bizarrely, reacted in apparent outrage to the insistence of the defendants in seeking details of what he paid for the horses. Since that evidence is central to the assessment of damage, I find that response somewhat puzzling. Fortunately, commonsense prevailed and at least a claim of what was paid and by whom for these horses was finally communicated. However, no paperwork, no invoices and no supporting evidence were forthcoming. The court was left to rely entirely upon the unsupported evidence of the plaintiff. When he was closely questioned on the work that he did in order to pay for the barter of ‘High Mist’ which he valued at €10,500, his evidence was evasive. Despite thirty years as a plumbing contractor, he claimed he could not value the pipes, radiators or cylinders he claims to have installed.
5. The valuation of all four horses was, in my view of the evidence, greatly exaggerated. No satisfactory answer was given by the plaintiff or his valuer as to why the figures at which he valued the horses in July 2011 were so completely at variance with that he says he paid for them a few months before. The so-called “breeding value” he claimed, does not, of course, exist. The price a horse fetches when it is sold reflects the hope that there is a very good chance it will breed and that about one in a thousand foals will go on to become a high performer. Thus, regrettably, the court has no credible evidence before it on behalf of the plaintiff upon which it could base an award of damages.
6. The court can only act on credible evidence, and due to the default of the plaintiff in providing that, the court is left to decide the case on the only credible evidence it has before it. This evidence came from Mr. Noel Corcoran. It is plain from his background that he is possessed of great experience in the field of Connemara ponies. I accept that, as he put it himself, he did not come to court to do down anyone’s horse. In his evidence, it was clear how much he loves these little ponies. I accept his evidence was a careful, measured attempt to assist the court, as an expert witness is obliged to do, in assessing the true value of these four horses in July 2011. Mr Corcoran stated that 66% of all coverings of a mare result in a live foal. Only one in every thousand of these is likely to become a high performer.
7. Mr. Corcoran gave a value for ‘High Mist’ in the range of €1,200 to €1,500 in 2011. I will accept his higher valuation and assess the value of this horse at €1,500; for ‘Kyle Orville’, he gave a single value in 2011 of €1,000. I will accept that figure. For ‘Bailey’, he gave a value in the range of €350 to €500. I will accept the higher figure and assess this horse’s value at €500 in 2011. For the unnamed ‘Sports Horse’, Mr. Corcoran gave a value of €1,000. I accept that figure.
8. Thus, the overall value of the horses as of July 2011, I assess on the only credible evidence before the court, at a figure of €4,000. As noted above, the so-called “breeding value” is contained in those figures.
9. As for general damages, I accept the plaintiff has suffered as a result of the shock of having his horses put down, particularly in the manner they were. I assess damages in this regard at €6,000.
10. As for exemplary or punitive damages, in my judgment in the substantive case, I strongly criticised the manner in which these horses were disposed of by South Dublin County Council. I have nothing to add to this judgment. I do, however, have to bear in mind that South Dublin County Council were acting under a duty to remove horses from the public highway when they did so in this case. That is an onerous duty but a vital one. I do not believe there was anything mala fide in their actions then or subsequently in their disposal of the horses. I hope they have already resolved the maladministration involved here which resulted in all of this wholly unnecessary trouble. I will not, however, award punitive or exemplary damages. There will be a decree in the amount of €10,000.
|
