Supreme Court

Joseph Doyle
(Plaintiff)

v.

The Council of the County of Wicklow
(Defendants)

No. 4 of 1972
[14th of December, 1973]

Status: Reported at [1974] IR 55

FitzGerald C.J.

	I agree with the judgment about to be delivered by Mr. Justice Griffin.

Walsh J. 

	I agree with the judgment which is about to be read by Mr. Justice Griffin. I wish, however, to add one qualification in respect of the portion of it which deals with the question of insurance.

	A policy of fire insurance is a policy of indemnity only. Therefore, the fact that an applicant is the holder of a policy of fire insurance is not a matter to be taken into account when he brings an application for damages for malicious injury. The vast majority of such policies contain a clause giving the insurance company a right to subrogate, and to bring the claim in their own name. However, it is possible (though the cases may be few) to have a policy of fire insurance which expressly excludes the right of subrogation. In such a case an insurance company would not be entitled to bring a claim in the name of the applicant. If a County Council wishes to challenge the right of an insurance company to proceed in the name of an applicant under a claim of subrogation, and the matter has been put in issue, then questions may be asked with reference to the nature of the policy of insurance and the policy itself would be both relevant and admissible in evidence.

Budd J. 

	 I agree with the judgment of Mr. Justice Griffin.

Henchy J. 

	I also agree with that judgment.

Griffin J. 

	The facts appear sufficiently from the Case Stated and from the transcript of Dr. Browne’s evidence which, though not forming part of the Case Stated, by consent of the parties was opened to the Court and was deemed to be included in the Case Stated.

	In relation to the first question, counsel on behalf of the respondents submitted that, on the hearing of this application for compensation under the criminal injury code, the Circuit Court judge, in considering the question of insanity, should not apply the standards or rules appropriate to a criminal trial. In my opinion, this submission is not well founded. Before the application for compensation can succeed, the applicant must prove that a crime has been committed by some person or persons, known or unknown, for which the community is to be made liable: per Kennedy C.J. in Artificial Coal Company v. Minister for Finance [1928] I.R. 238. If by reason of insanity the perpetrator of the act here in question is to be excepted from criminal responsibility, no “crime” has been committed by him and, in my view, it would be quite illogical to hold that, on the hearing of the application for compensation for criminal injury arising out of the same act, a standard different from that applied in a criminal prosecution should be applied for the purpose of determining his sanity or insanity.

	The first question submitted by the learned Circuit Court judge necessarily involves a consideration of what are the standards to be applied in relation to the sanity or insanity of the youth who set fire to the abattoir at Bray on the night of the 28th January, 1970, and also consideration of the so-called McNaghten rules. Mr. Peart, for the respondents, concedes that if the McNaghten rules are applied the Circuit Court judge is bound to find against the respondents; but he invites this Court to consider the extent to which the McNaghten rules apply. The answering of a question in a Case Stated which arises in the course of a claim for compensation for criminal injury is not the most appropriate circumstance in which to consider the application of rules which have been widely applied in criminal trials for upwards of 130 years. However, since the enactment of the Criminal Justice Act, 1964 (under which the death penalty has, with certain exceptions, been abolished) it is less likely that this Court will be required to consider the McNaghten rules in a criminal appeal. Neither this Court nor its predecessor, the Supreme Court of Justice, has had to decide the extent to which the McNaghten rules apply or whether they are the sole and exclusive test for determining the insanity of an accused person.

	Whilst insanity has always exempted from criminal responsibility a person doing an act which would otherwise be a crime, the approach of the courts and writers to the question of insanity has become less rigid with the passage of time, as might be expected. In the time of Coke, insanity did not provide a defence to a criminal charge unless the insanity alleged was of such a nature that the accused resembled a beast rather than a man. Hale’s test was “such a person as labouring under melancholy distempers hath yet ordinarily as great understanding, as ordinarily a child of fourteen years hath, is such a person as may be guilty of treason or felony” (1 Hale P.C. 30). This somewhat extreme approach to the insane persisted into the 18th century at which time the view regularly accepted by the courts was that no mentally disturbed person should be excepted from criminal responsibility unless he “is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast” – per Tracy J. in Arnold’s Case (1724) 16 St. Tr. 695. However, in R. v. Hadfield (1800) 27 St. Tr. 1281 the test applied by Lord Kenyon C.J. was that if a man is completely deranged so that he knows not what he does, if he is lost to all sense so that he cannot distinguish good from evil, and cannot judge of the consequences of his actions then he cannot be guilty of crime because the will, which to a certain extent is the essence of every crime, is wanting. Hadfield, who had made an unsuccessful attempt on the life of George III in Drury Lane, was acquitted. In Bellingham’s Case (1812 – 1 Collinson on Lunatics, 636.) the test applied by Sir James Mansfield C.J. was whether, when the act was done, the prisoner was capable of distinguishing right from wrong or was under the influence of any delusion which rendered his mind insensible of the nature of his act.

	In 1843 Daniel McNaghten shot Edward Drummond who was the secretary of the Prime Minister, Sir Robert Peel, believing his victim to be the Prime Minister. At McNaghten’s trial Tindal C.J. directed the jury :- “If upon balancing the evidence in your minds you should think the prisoner a person capable of distinguishing right from wrong with respect to the act of which he stands charged, he is then a responsible agent.” McNaghten was acquitted on the ground of insanity and, following his acquittal, a debate took place in the House of Lords in consequence whereof a series of questions was put to and answered by the judges in relation to the law respecting alleged crimes committed by persons afflicted with insane delusions. Tindal C.J. expressed the opinions of all the judges except Maule J. who gave a somewhat more qualified answer.

	It is well to bear in mind that “Daniel M’Naghten’s case (1843) 10 Cl. & F. 200 was not a legal decision but a statement of the views of the Judges, given in answer to a series of questions put to them by the House of Lords, arising out of a debate in that House. The Judges protested as to the inconvenience of being called upon to express their opinions in the abstract, not in relation to the facts of a particular case and without argument or debate of the matter”– per Kennedy C.J. delivering the judgment of the Court of Criminal Appeal in Attorney General v. O’Brien[1936] I.R. 263.

	The wording of the first question in M’Naghten’s Case (1843) 10 Cl. F. 200 and the answer thereto would seem to indicate that the House of Lords and the judges had in mind the cases of Hadfield (1800) 27 St. Tr. 1281, Bellingham (1812 — 1 Collinson on Lunatics, 636) and McNaghten (1843) 10 Cl. & F. 200. The questions posed in M’Naghten’s Case (1843) 10 Cl. & F. 200 which have given rise to the greatest discussion, and which are most relevant in the present case, are the second and third questions. Question 2 was in the following terms :- “What are the proper questions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?” Question No. 3 was as follows :- “In what terms ought the question to be left to the jury, as to the prisoner’s state of mind at the time when the act was committed?” The judges answered (pp. 210-11) both questions together, their opinion being “that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, and when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the  knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.” I do not deem it necessary to quote the first, fourth and fifth questions in M’Naghten’s Case and the answers given. Since 1843, the McNaghten rules have been recognised in the main as the authoritative statement of the law in England as to criminal responsibility.

	However, there has not been universal interpretation of the McNaghten rules and, as Lord Reid pointed out in Williams v. Williams [1964] A.C. 698, for many years those rules have not been regarded as entirely satisfactory and have frequently been applied liberally; it appears to be the general opinion of medical men that there are types of insanity outside the rules which deprive the insane man of choice or responsibility just as much as the types covered by the rules. In R. v. Windle [1952] 2 Q.B. 826 the Court of Criminal Appeal in England held that the rules are not limited to cases in which the accused is suffering from delusions but apply in all cases of insanity, whatever may be the nature of the insanity or disease of the mind from which the accused is suffering. The Court of Criminal Appeal in Ireland in Attorney General v. O’Brien [1936] I.R. 263 took a different view for Kennedy C.J., who delivered the judgment of that court, said at p. 268 of the report :- “It is to be noted that all the questions are framed in relation to crimes committed by ‘persons afflicted with insane delusion, in respect of one or more particular subjects or persons.’ The answers to the first and fourth questions are definitely limited by this qualification of the questions. It is in the answer to the second and third questions that the statement is contained to which it has been commonly sought to give a wide general application (though the questions were limited in the same way).” Having set out the answer given to the second and third questions, he continued at p. 269 of the report :- “As I have mentioned, the questions submitted to the Judges for opinion were in express terms limited to crimes committed by ‘persons afflicted with insane delusion in respect of one or more particular subjects or persons.’ It follows, in our opinion, that the opinions given by the Judges must in every case be read with the like specific limitation. Nevertheless, the opinions which I have quoted from the answer to the second and third questions have been commonly read as applying to the whole field of insanity, which is, of course, of far wider area, and comprises a more extensive and varied range of cases of mental disease than those which can be conveniently summed up as affliction with insane delusion. Hence the dissatisfaction expressed by many legal and medical persons with the opinions as so read with the wide and general interpretation wrongly given to them. The scientific exploration of mental diseases has in modern times been pursued with results to knowledge not contemplated at a time not very remote from the present.” Again, in R. v. Windle [1952] 2 Q.B. 826 the Court of Criminal Appeal in England held that the word “wrong” meant “contrary to law.” However, Windle’s Case was not followed in the High Court of Australia in Stapleton v. The Queen (1952) 86 C. L.R. 358 and the test was taken to be whether the accused had the capacity to appreciate that his act was wrong according to the standards adopted by reasonable men.

	In my opinion, the McNaghten rules do not provide the sole or exclusive test for determining the sanity or insanity of an accused. The questions put to the judges were limited to the effect of insane delusions and I would agree with the opinion expressed by the Court of Criminal Appeal in Attorney General v. O’Brien [1936] I.R. 263 that the opinions given by the judges must be read with the like specific limitation.

	The questions and answers were also directed to knowledge, and this matter was considered by Mr. Justice Henchy in The People (Attorney General) v. Hayes (Central Criminal – November, 1967) which trial was noted in an article entitled “Not Guilty Because of Insanity” by Professor R. J. O’Hanlon: see Irish Jurist (N.S.), Vol. III, p. 61. That article was of considerable assistance to me in preparing this judgment. In that case the accused was charged with the murder of his wife. Submissions were made by counsel on behalf of the Attorney General as to the form in which the issue of insanity should be left to the jury, and in the course of his considered judgment in relation to these submissions Henchy J. said :- “In the normal case, tried in accordance with the McNaghten rules, the test is solely one of knowledge: did he know the nature and quality of his act or did he know that the act was wrong? The rules do not take into account the capacity of a man on the basis of his knowledge to act or to refrain from acting, and I believe it to be correct psychiatric science to accept that certain serious mental diseases, such as paranoia or schizophrenia, in certain cases enable a man to understand the morality or immorality of his act or the legality or illegality of it, or the nature and quality of it, but nevertheless prevent him from exercising a free volition as to whether he should or should not do that act. In the present case the medical witnesses are unanimous in saying that the accused man was, in medical terms, insane at the time of the act. However, legal insanity does not necessarily coincide with what medical men would call insanity, but if it is open to the jury to say, as say they must, on the evidence, that this man understood the nature and quality of his act, and understood its wrongfulness, morally and legally, but that nevertheless he was debarred from refraining from assaulting his wife fatally because of a defect of reason, his mental illness, it seems to me that it would be unjust, in the circumstances of this case, not to allow the jury to consider the case on those grounds.” I would adopt what was said by Mr. Justice Henchy as being a correct statement of the law on this matter, and in my view it provides the correct test to be applied by the learned Circuit Court judge in determining whether the act of the youth who burned the abattoir in Bray was malicious within the criminal injury code.

	Having regard to the findings of the learned Circuit Court judge and the evidence of Dr. Browne, it seems to me that the respondents have not made out a case that legal insanity absolved the youth, who set fire to the abattoir, from criminal responsibility; for it is legal insanity with which the Courts are concerned, and not medical insanity. }However, this is a matter which will have to be determined by the learned Circuit Court judge.

	With regard to the second question posed in the Case Stated, counsel for the respondents contend that they are entitled to investigate whether the applicant was insured against damage by fire and they submit that, if he was, he is not entitled to recover compensation from the respondents under the Criminal Injury code. They submit that if the applicant is insured against loss, and has been paid, he would be getting unjust enrichment if he were entitled to recover from the respondents, for the net result would be that he would be paid twice for the same loss. Alternatively, they say that, while the proceedings have been brought in the name of the insured, this is effectively a claim on behalf of the insurance company to whom the premises damaged did not “belong” within the meaning of s. 135 of the Grand Jury (Ireland) Act, 1836; and that, accordingly, the insurance company is not entitled to recover compensation. This argument ignores the basis of a policy of fire insurance, which is simply a contract of indemnity. In my opinion, it is beyond question that all claims of the insured arising out of any ground of legal responsibility vest in the insurer by subrogation. The value of all benefits received by the insured from claims which have been satisfied before payment under the policy ought to be deducted from the indemnity at the time of payment; equally, after the insurers have paid the insured under the policy, they have an equity in respect of all the insured’s unsatisfied claims. When the insured person receives any benefits from such claims he must account to the insurers therefore and repay to them anything which he receives beyond a complete indemnity. The right of an insured plaintiff to proceed against the wrongdoer for the benefit of the insurers was recognized early: see Mason v. Sainsbury (1782) 3 Doug. K.B. 61. In that case it was contended that the insurers should not be entitled to recover in an action, brought in the plaintiff’s name, because they had received the insurance premium and were entitled to no more –   whether a loss occurred or not. This argument was rejected by the court, Lord Mansfield saying at p. 64 :- “The office paid without suit, not in ease of the hundred, and not as co-obligors, but without prejudice. It is, to all intents, as if it had not been paid . . . I am satisfied that it is to be considered as if the insurers had not paid a farthing.” – see also Castellain v. Preston (1883) 11 Q. B.D. 380. 

	Quite apart from principle, there is ample judicial authority against the proposition propounded by the respondents. In Jones v. Belfast Corporation (1897) 32 I.L.T.R. 32 Sir Peter O’Brien L.C.J., without giving reasons, stated that the law was quite clear on the point at issue and awarded compensation notwithstanding the fact that the premises damaged by fire were fully covered by insurance and that the insurance money had been actually paid to the owner. In Ballymagauran Co-operative Agricultural and Dairy Society v. County Councils of Cavan and Leitrim [1915] 2 I.R. 85 it was held by the Court of Appeal in Ireland, upon an application for compensation under the criminal injury code, that the fact that the premises damaged were insured against fire cannot be taken into consideration when assessing the amount of compensation to be recovered from the County by the owner of the premises. O’Brien L.C. said at p. 92 :- “The practice of insuring, in cities at any rate, property against loss caused by malicious injury, be it fire or any other wanton or unlawful method of destruction, is now very general; and if the view which is presented to us by the counties in this case is correct in law, the result would be that the large body of property owners insuring against malicious damage would really be only insuring in the interest of others who are in no sense in privity with the contract of insurance at the time it is made. It appears to me that the liability is primarily on the county, and not primarily on the insurance company. If it were primarily on the insurance company, then, of course, there would be great force on broad grounds of justice in the contention of the county.” Palles C.B. said at p. 100 :- “I am of opinion that, as held in Mason v. Sainsbury(1782) 3 Doug. K.B. 61 as regards England, so also in Ireland, although the hundred, barony, or county is not criminally responsible, it is for civil purposes put in the place of the wrongdoers, and the primary liability is on the hundred, barony, or county, from which it follows that as between it and the person whose property is damaged his insurer and himself are one.”

	In my opinion, the Ballymagauran Case was correctly decided so it is irrelevant whether the applicant in the present case had insured against the risk of damage by fire or otherwise, or whether or not he had been paid on foot of his policy of insurance. If he had already been paid on foot of the policy of insurance he, as the insured, must account to the insurers for any benefit he receives from his claim for compensation against the respondents. In my opinion, therefore, the question was correctly disallowed by the learned Circuit Court judge. Because of the latter answer, the remaining questions posed in the Case Stated do not need to be answered.