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1. The history of the relationship between the parties and the facts which have given rise to the dispute between them do not appear to be in significant controversy and are as follows:-

2. The plaintiff is a farmer and resides at Coolbawn, Castlecomer, Co. Kilkenny. For upwards of 100 years until quite recent times coal-mining was carried out in the Castlecomer area where there were several anthracite mines, including one on the plaintiff’s lands which was mined by his ancestors as an adjunct to their farming activities. Most of the mines were underground, including that on the plaintiff’s lands, and the method of extraction adopted was to remove the anthracite leaving pillars of coal at intervals to support the land above which included a covering of shale. In short, after anthracite mining was completed on

3. The defendant is a limited liability company which is engaged in the business of making bricks. Shale and fireclay are required in that connection. In or about 1989 the defendant was known as Irish Clay Industries Limited. It was then interested in acquiring the plaintiff’s extinct mine as a source of shale and fireclay. It had no interest in the pillars of coal. I accept the plaintiff’s evidence, which was not challenged, that in 1989 the defendant company was an independent commercial entity of modest proportions with limited financial resources. Negotiations took place which led to an agreement in writing between the parties made on 9th March, 1989 under which the plaintiff conveyed to the company the adjoining properties described in folio’s 993F and 5889 of the County Kilkenny Register comprising in all 46 acres or thereabouts which were referred to in the trial as Scanlon 1 and Scanlon 2. The purchase price was £73,000 and in the interest of reducing the cash price, the parties agreed that the plaintiff would reserve to himself any coal deposits, including the pillars exposed in course of the defendant’s shale and fireclay operations i.e. as part of the purchase price the plaintiff would have the benefit of coal (in particular the pillars) as it became available in course of the defendant’s operations. The special conditions which form part of the contract include the following:-

4. I am satisfied that condition number 7 was intended to provide certain demarcation boundary fencing and a particular screen of trees. It does not limit such obligations as the defendant may have had regarding the protection of the plaintiff’s coal on the site from unauthorised removal by third parties.

5. A pertinent historical note relating to coal-mining at Castlecomer is that over the years a custom developed whereby miners and their families regarded themselves as being entitled to enter the mining areas and remove coal for their own use. The unauthorised removal of anthracite by miners was in some cases more extensive and they engaged in the sale of coal thus obtained. It seems that traditionally the mine owners turned a blind eye to such activities which were never formally sanctioned but were not regarded as pilfering in the strict sense of the term.

6. Subsequent to the making of the foregoing contract the defendant changed it’s name to Ormonde Brick Limited. It also ceased to be an independent enterprise and became part of the Cement-Roadstone group of companies.

7. In or about May, 1990 contractors on behalf of the defendant commenced operations at Scanlon 1 and removed shale then covering approximately 2 acres of ground on the northern side of the land. It was duly taken to the defendant’s brick factory and in

8. On the 4th day of the coal removal operation the plaintiff was informed by a senior official of the defendant company that no further coal was to be taken from the site. The plaintiff asked for an explanation and was told that the coal was not theirs to give him. Protracted negotiations then took place and it emerged that the root of the difficulty was that there was no statutory mining licence authorising removal of the coal by the plaintiff. Subsequently negotiations also involved the State Mining Board and continued for several years. It is unnecessary to examine the ramifications of that particular problem (which ultimately was resolved) because it is irrelevant to an assessment of the defendant’s obligations to the plaintiff in connection with protecting the coal on its lands in his interest. It does explain the reason for the moratorium on the further removal of coal by the plaintiff from the lands in question until in or about 1997. The practical difficulty which that delay

9. The plaintiff was excluded from the lands by the defendant in or about the first week of June, 1990. Immediately thereafter trespass on the property commenced by local persons in search of coal. It has not been disputed that removal of coal in an organised commercial way commenced about a week later and was undertaken by teams of men working with tractors and trailers and the necessary equipment to remove coal and coal pillars from the location. Such activity was carried out at all times but particularly at night. The plaintiff complained about what was going on to senior officials in the defendant’s employment. He forwarded to them the names of the persons who were removing the coal but no action was taken to prevent such trespass. The plaintiff also reported the matter to the Garda Síochána but they were also disinclined to take any action in the matter in the light of the longstanding local custom of unofficial removal of coal from mines to which I have referred. The end result is that the plaintiff has suffered substantial financial loss through being deprived of coal which is his property and which is also a readily saleable commodity. It is also not in dispute that in the course of a State Mining Board hearing in 1992 the plaintiff

10. The first issue I have to consider is the proper interpretation of special condition number 8 in the contract regarding the reservation by the plaintiff of coal deposits on the land. As already stated, the condition is as follows:-

11. It has been argued on behalf of the defendant that no liability arises on foot of that condition because the coal pillars were not “exposed” by the defendant in the course of their work and, therefore, a condition precedent to any liability they might have has not arisen. I accept that from the beginning it was the practice of the defendant’s contractor, having removed shale or fireclay from a given area, to leave the coal pillars covered by a thin layer of shale. It seems that the pillars were not, therefore, exposed in the literal sense of that word. I have no doubt that “exposed” in the context of condition number 8 means “made available for removal” i.e. made readily accessible for that purpose. That is how the clause was interpreted and operated by both parties up to the time when the defendant terminated the

12. I am satisfied that at all material times the plaintiff did in fact “own” the coal deposits in question pursuant to a permission from McGregor and Sons (Ireland) Limited which held a 35 year lease from Wandesford Estate Co. to carry on open cast mining operations in an area of land which included that which is the subject-matter of the plaintiffs contract with the defendant. It is also conceded in the report of the Mining Board dated 14th December, 1992 that the minerals in question were State minerals “privately owned by Wandesford Estate Co.” In the context of the relationship between the plaintiff and the defendant a practical difficulty was that when entering into the contract of 7th March, 1989 neither party adverted to the necessity for obtaining a mining lease/license from the Minister for Energy under the Mineral Developments Acts, 1940 and 1979. I accept the submission made on behalf of the plaintiff that under the Acts although the coal in question falls within the definition of “State Minerals”, it does not alter the ownership thereof. In the light of the foregoing it follows that after completion of the contract the defendant was in possession of the lands containing the coal which was an asset owned by the plaintiff and forming part of the consideration for the contract. In short, the defendants were in possession of property belonging to the plaintiff which he could not legally remove.

13. It seems to me that the relationship between the parties in this case is analogous to that of bailment which may exist independent of contract. What duty did the defendant as bailee owe to the plaintiff as bailor of the coal? It was held by Barron J. in Sheehy -v- Faughnan [1991] ILRM 719 that a bailee owes a duty to a bailor to take reasonable steps to prevent loss to the bailor, and where loss has occurred, the onus of proof is on the bailee to show that it did not occur through lack of reasonable care on his part. See

14. Applying the judgment of Barron J. in Sheehy -v- Faughnan I am satisfied that in the instant case the defendant had a duty to take reasonable steps to prevent loss to the plaintiff through pilfering of his coal from the defendant’s lands. The coal was inaccessible until the top soil and shale were removed by the defendant pursuant to its operations on the land in connection with the extraction of shale and fireclay. Having removed the shale and top soil from a given area the underlying pillars of anthracite became readily accessible and vulnerable to unauthorised removal as was soon clearly established. I accept the plaintiff’s evidence that organised pilfering on a commercial scale was happening throughout the period of the defendant’s operations and perhaps thereafter in consequence of which Scanlon 1 was in effect stripped of coal and the plaintiff has thereby suffered substantial loss.

15. The fact that large scale pilfering over a protracted period of time without significant let or hindrance by the defendant was happening, even though from the beginning it was made aware of what was going on, itself indicates that reasonable efforts were not made by or on its behalf to protect the plaintiff’s coal. The line taken on behalf of the defendant (vide a letter from their solicitors dated 13th January, 1993) was that they denied having any liability to protect coal from being unlawfully taken by third parties from the lands. However they did not regard themselves as having any obligation to stop the pilferers. It was contended (as was the fact) that the defendant had complied with the fencing requirements set out in clause 7 of the special conditions of the contract and that that was all they were required to do. As already stated, I am satisfied that special condition 7 did not limit their liability in the matter of protecting the coal as contended by their solicitors. It is obvious that such fencing did not and would not protect the lands from coal pilfering and that

16. Unauthorised access to that part of the contract lands called Scanlon 1 appears to have been through either the adjacent Delaney gates or the defendant’s gates which are shown in the photographs introduced in evidence at the trial numbered 11 and 28 respectively. Although securing the Delaney gates by ensuring that they could not be lifted off their hinges was probably a relatively simple matter, it was not until the mid 1990’s that any steps were taken in that regard. It also emerged in evidence that no action was taken to increase the height of the main gate into Scanlon 1 until after the coal had been removed from that area. Mr. Eddie Power, who is responsible for the defendant’s security arrangements, conceded in evidence that the digging of a trench at the boundary of the Scanlon/Delaney lands would have prevented unauthorised tractors and trailers being brought onto Scanlon 1 which was fundamental to the illegal removal of coal on a commercial scale. The defendant had appropriate machinery on the site to carry out such works but failed to do so. In response to the plaintiff’s contention that an important security measure would have been the provision of such a trench, it was stated on behalf on the defendant that they required to bring a large bulldozer onto Scanlon 1 via the adjacent Delaney lands about six times a year. It seen-is to me that the plaintiff’s contention that a “tracked” vehicle such as the bulldozer could have negotiated the proposed trench is probably correct. Alternatively, the trench could have been filled for a short distance to allow access and then re-excavated or a temporary metal “bridge” could have been used. It also is of interest that there was a substantial disparity between security maintained by the defendant on the other part of the land known as Scanlon 2 about which no explanation was given. Another alternative which was open to the defendant was to

17. The onus is on the defendant to show that it took reasonable care to secure coal on its land at Scanlon 1 for the benefit of the plaintiff in accordance with the contract made on 9th March, 1989. The evidence establishes that in breach of contract and in breach of duty as bailee it failed to do so in consequence of which the plaintiff suffered substantial loss. This finding is borne out by the fact that although the identity of the primary culprits was known to the defendant from the beginning nothing of any significance was done to restrain the wrongdoers or to protect the plaintiff’s interest for several years when it was too late.

18. There is one other issue on liability raised in the defendant’s defence i.e. limitation of damages under the Statute of Limitations, 1957 section 1 l(l)(a) and 2(a) which limits the loss sustained by the plaintiff to that which occurred during the period of six years ending on the date of issue of the plenary summons in the action on 7th August, 1996. The plaintiff has conceded that soon after he was prohibited from continuing the removal of coal from Scanlon 1 in or about the first week of June, 1990 substantial pilfering of coal in commercial proportions commenced and it seems continued up to the crucial date from which damages may be claimed i.e. 7th August, 1990. There is no firm information as to the quantity of coal wrongfully removed during that period of approximately two months, but a significant reduction must be made in that regard from the total value of the plaintiff’s claim.

19. I have considered all of the expert evidence and reports regarding the probable residue of coal in Scanlon 1 which was lost through pilferage. I have also taken into account the report of the Department of Industry and Commerce prepared in July, 1964 which was introduced in evidence by the defendant and indicates a remaining residue of coal amounting to about 10% in the general vicinity of Scanlon 1. All in all, it seems to me that it is fair and reasonable to both parties that I should assess the percentage residue of coal in Scanlon 1 at the time when the contract was made in 1989 as being 10% i.e. 862 tonnes of anthracite. I also accept the assessment of the plaintiff’s chartered accountant, Mr. Richard Smyth, that overheads involved in extracting such coal would have been about 8% of gross value. Accordingly, as calculated by Mr. Williams, the plaintiff’s chartered minerals surveyor, the net value of the loss of coal from Scanlon 1 after deduction of 8% overheads is £95,164. I assess the value of pilfered coal at Scanlon 1 during the defendant’s operations there up to 7th August, 1990 at £10,000 - credit should be given also for £10,173 for coal extracted from Scanlon 1 by the plaintiff (see Richard Smyth’s report) - thus reducing the net value of his claim to £74,991. He is also entitled to interest at the court rate on that amount. I shall hear further argument as to the date from which interest should run.