Constitution & Torts
Vindicates Constitutional Rights
Tort law protects recognised rights and interests. Some of these interests are also expressly or impliedly in the Constitution. These include personal liberty, inviolability of dwellinghouse, freedom of expression, freedom of association, property rights, rights to a good name and the right to bodily integrity. In several cases where there has been egregious conduct by State agents, significant damages have been awarded.
Over the last 50 years, the courts have taken some steps to rationalise or place the law of tort in the context of the Constitution. In some cases, the courts have stated that if the law of tort does not at present provide adequate protection for a particular constitutional right, the law of torts may be extended to cover this right. This may have the effect that there may be a right of damages or compensation for breach of such rights, where it did not previously exist under tort law.
The general position is that only the State and State bodies are bound by the Constitution. However, the Constitution recognises personal rights for private citizens and corresponding duties, which the State must in its laws protect. There may, in such circumstances, be a right to compensation or redress against a private person for breach of a person’s constitutional rights.
Narrower View of Constitution’s Role
There are limits to the principle that the Constitution may protect private interests by the creation of new torts. The principle has been controversial. A narrower view is that the Constitution is limited to an obligation to provide in its laws that constitutional rights must be protected.
Some courts have been reluctant to move too far beyond the existing law of tort on the basis of Constitutional rights. Some courts have indicated that there is no general obligation to defend and vindicate the Constitutional right of citizens in all cases on pain of damages.
In some areas such as the protection of good name and reputation, the law of tort is well developed and comprehensively protects the relevant rights. There are other areas such as in relation to freedom of association, where the law of tort not as well-developed. In this latter case, it is possible that the law of tort could be extended to protect such constitutional rights.
Where a particular interest is already protected by law, the courts will not generally extend these principles beyond the existing rules. If the rights are already adequately protected, the courts are reluctant to create new types of claims or actions.
In Grant v Roche Products [2008] I.E.S.C. 35, the family of a man who had committed suicide sued manufacturers of the drug which he had been using.
“… the courts may either modify the definition of a tort or permit the plaintiff to sue directly for infringement of constitutional rights”.
Unconstitutional legislation
Keating v Crowley [2010] IESC 29 related to a claim of compensation arising out of the enactment of unconstitutional legislation.
Budd J. referred to approaches to redress for the infringement of constitutional rights:
“The first approach is to proceed on the basis that the definition of the scope of a right prescribes the circumstances in which the right may be exercised instead of the focus being put on the question of the carelessness or intention of the infringer of the right. However, the question remains whether in any particular case it is just to impose what amounts to strict liability for the infringement of a particular constitutional right. This question arises in a particularly stark form where it is being alleged that the Legislature itself has by its enactment infringed a citizen’s constitutional right. I do not think that the infringement can be taken in isolation from its context as the detrimental effect on a person’s right may have to be balanced against others’ rights and the needs of the common good.
A second approach is to require that there should be proof of intent to infringe the right or negligence on the part of the infringer. However, it could be that there would be a difficulty in establishing culpable intent or negligence in a case and there may be difficulties in deciding whether the infringement was intentional and the need for these ingredients might impede the protection for a constitutional right. By way of a third, pragmatic approach, Henchy J. in Murphy v. Attorney General [1982] IR 241, made it clear that such matters as the remedies for infringement of rights are best dealt with in the factual context of each case.”
“In the circumstances of this case, it seems to me that the plaintiffs have largely been vindicated by the declaration of invalidity of the 1989 Act. The informed public is aware of their stance and their vindication by the pronouncements of the Supreme Court as to the unjustified discrimination against them and the infringement of their property rights. While I do not accept that the Oireachtas has total immunity in respect of legislation, since the Courts are specifically given the mandate to review legislation for repugnancy, nevertheless for public policy reasons, it seems to me that there must be considerable tolerance of the legislature particularly when it has to weigh in the balance conflicting rights. … It seems to me that the appropriate redress in this type of case is a declaration of invalidity. In the circumstances of this case redress should not extend to damages. Having heard cursory evidence, I have concluded that there are a number of imponderables in respect of the heads of damage and that there is a lack of the type of direct causal link necessary. The plaintiffs have never been dispossessed of their property on the Island and indeed the publicity arising from the litigation may well have made the culture of the Great Blasket even more well-known …
If the judiciary is to proceed resolutely but cautiously in relation to redress where a claim is brought in a recognised type of suit based on tort when an Act is found to be invalid, then the Court should be all the more reticent where the claim is based on the effects of the actual enactment of an invalid Act.
My conclusion is therefore that under Articles 15.4.2° and 34.3.2° of the Constitution the Court has jurisdiction to declare an Act invalid and to give necessary and appropriate redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.”
Blehin v Minister for Health and Children [2010] IEHC 329 also dealt with the issue of compensation arising from unconstitutional legislation
“In addressing that question, a crucial factor undoubtedly would be the basis on which the Supreme Court decided the invalidity of s. 260 – that the right of the plaintiff which was infringed was his constitutional right [of] access to the court in the context of his fundamental right to liberty having been restricted, which on any consideration of the hierarchical framework of constitutional rights must be a serious infringement. The nature and extent of the adverse impact on him resulting from such civil wrong as the plaintiff would have been in a position to establish in the litigation which he was precluded from prosecuting would also be a factor. As regards countervailing factors, a matter which could be regarded as being significant would be the status of the Act of 1945 for almost 60 years after its enactment, the presumption that it was constitutionally valid and the manner of its application generally. In the particular context of this case, a significant factor would probably be the consistent manner in which s. 260 was applied by the Supreme Court, from which it would have been reasonable to deduce that s. 260 was ‘an acceptable part of the corpus juris’, [Murphy v Attorney General [1982] IR, at 314 (per Henchy J]. There may be other factors which would be relevant.”
Delay Prosecution
McFarlane v Ireland [2010] ECHR 1272, the European Court of Human Rights ruled by a 12 to 5 majority in a case where there had been an unconstitutional delay in the prosecution of a trial which was ultimately prohibited by the Supreme Court
“The Court considers that it has not been demonstrated that this action could constitute a remedy as regards a judge’s delay in delivering a judgment. While the Government suggested that the applicant should have tested this issue in a constitutional action for damages, they accepted in both their written and oral submissions to the Grand Chamber that there was likely to be an exception to the right to damages for a breach of a constitutional right when the delay was caused by the failure of an individual judge to deliver judgment within a reasonable time, given the important and established principle of judicial immunity. While this period of delay was considered relevant — although not blameworthy — in the second prohibition action, the High Court opined in a later judgment (Joseph Kemmy v. Ireland and the Attorney General) that the immunity of suit conferred by law on the judiciary applied for the benefit of the State in the context of an action against the State in damages for the wrongs of a judge. The 17-month period required to approve the High Court judgment and found blameworthy under Article 6 § 1, would not therefore appear to be addressed by this proposed constitutional remedy.
Dwellinghouse Intrusion
In some cases, the courts have been willing to grant relief based on a breach of constitutional rights that do not fit within the ambit of an existing tort. In Sullivan v Boylan [2013] IEHC 104, Hogan J, highly aggressive and intimidating action by a debt collector which constituted a violation of the protection of the person’s dwellinghouse was held to constitute the basis for awarding damages.
Sullivan v Boylan (No.1) [2012] IEHC 389 [2013] IEHC 104 involved aggressive debt collection in relation to a contested bill aimed at the plaintiff in his dwelling house.
Hogan J. “But just because the common law might have so developed or might yet so develop at some stage in the future does not take from the fact that the existing law of torts is still basically ineffective to protect the plaintiff in a case of this kind. It is true that — just as with the UK — our law of harassment has been placed on a statutory footing (s.10 of the 1997 Act), but in this jurisdiction — unlike the UK Act — this is confined to the criminalisation of such conduct and does not address the question of remedies in tort. The fact that there is no statutory right to recover damages for this wrong simply underscores the basic ineffectiveness of traditional tort law fully to vindicate the constitutional rights to the protection of the person and the inviolability of the dwelling.
“In The People v. Barnes [2006] IECCA 165; [2007] 3 I.R. 170 the Court of Criminal Appeal held insofar as the common law had permitted the householder to kill a burglar merely because he was such, this rule has not survived the enactment of the Constitution in view of the State’s obligation under Article 40.3.2 to protect the life of all citizens. By the same token, insofar as the common law’s ex turpi causa rules permitted a defendant to avoid tortious liability merely (and I stress the word “merely”) because the victim happened in some respect to have also committed an illegal act, such rules would not be compatible with the State’s duty contained in Article 40.3.2 to vindicate the person. While the law of torts may be regarded as the primary mechanism whereby the State’s constitutional duty to vindicate the life and person is achieved (cf. the comments to this effect of Henchy J. in Hanrahan v. Merck, Sharpe & Dohme Ltd. [1988] I.L.R.M. 629 and those of Hardiman J. in Grant v. Roche Products Ltd. [2008] IESC 35, [2008] 4 I.R. 679), the common law must, where necessary, be remoulded and re-fashioned in order to reflect and to accommodate itself to these basic constitutional values.’
Bodily Integrity & Privacy
In DF v Garda Commissioner (No 3) [2014] IEHC 213 the plaintiff who was severely autistic, had been arrested under the mental health legislation and taken to a local Garda station where he was detained for an hour. He claimed damages for false imprisonment assault battery negligence breaches of constitutional rights rights under the European Convention on human rights and the Charter of fundamental rights of the European Union. The claim for breach of constitutional rights to liberty was struck out as was another claiming false imprisonment. The court was prepared to contemplate that battery and assault may not be sufficient to vindicate his constitutional guarantees of bodily integrity and privacy.
“In these circumstances and in view of this particular limitation on the scope of the tort, the plaintiff might be able to show at the full trial of the action that this nominate tort was, in the words of Henchy J in Hanrahan v Merck, Sharp & Dohmne Ltd. [1988] I.L.R.M. 626 at 636, ‘basically ineffective’ to protect his constitutional rights to the protection of the person and bodily integrity.”
Slopping Out
In Simpson v Governor of ‘Mountjoy Prison the High Court held the practice of slopping out by prisoners to be unconstitutional. It did not make an award as considered the plaintiff had exaggerated its claim. The Supreme Court upheld the High Court decision but made an award of €7,500 damages.
MacMenamin J.
“… none of the nominate torts fully describe the nature of the infringement. In truth, what is at issue in this case lies at a point where the right of privacy and the value dignity could be seen as lying at the base points of a pyramid which has at its apex the respect due to any person. These are attributes of personhood, and, along with other values such as autonomy, are aspects of the protection of the person afforded by Article 40.3 of the Constitution. By contrast to any other approach, this identification of the right as being one under the Constitution forms a firm, yet flexible, starting point for consideration of vindication within the contours of established law. The conditions to which the appellant was exposed diminished the right of privacy and the value of dignity due to him as a person, even seen within the limitations which necessarily arose from the fact of his detention. His rights under Article 40.3 of the Constitution were thereby violated.”
“In considering the question of damages, it seems to me that a court may apply the following basic principles. First, there must be a restitutionary element, seeking to put a claimant in the same position as if his or her constitutional rights had not been infringed. Second, it is necessary to ask whether what arose in a particular case was not simply some procedural error. Third, a court’s approach should be an equitable one, having regard to the particular facts of an individual case and the seriousness of the violation. Fourth, if and where necessary, a court award damages under the various headings of common law, such as non-pecuniary loss including pain, suffering, psychological harm, distress, frustration, inconvenience, humiliation, anxiety, and loss of reputation. Fifth, punitive damages will not generally be awarded save in very grave cases, such as where there was a direct intent or purpose in bringing about a significant consequence or detriment.”
O’Donnell J.
“The right of the person, as it has been described, clearly entails more than a prohibition of physical intrusion. Indeed, both the civil and criminal law of assault, which is one of the ways in which the State gives effect to the guarantee to protect the person of the citizen, is not limited to physical touching of the body of the person, and there is no reason to consider the enumerated right as limited in this way. On the contrary, it is, I think, possible to consider that it goes further, and protects the personal space and psychological well-being of the individual. It is clearly implicated when a person is confined by the State in cramped overcrowded and unsanitary conditions with little possibility of exercise. In understanding the extent of the right of the person, it is, I think, useful to have regard to the right of privacy, identified in McGee v. The Attorney General [1974] IR 284 as a right deduced from a series of enumerated rights and the social order contemplated by the Constitution. Privacy obviously has a physical element, but also clearly extends beyond it, and it contains aspects of autonomy. When both rights are read as they must be, which is in the light of the value of dignity espoused in the preamble to the Constitution, it is not difficult to understand why torture, or inhuman or degrading treatment, or indeed severely substandard prison conditions, can be an infringement of the constitutional rights of the individual. The fundamental rights, including the personal rights contained in Article 40, were adopted ‘so that the dignity and freedom of the individual may be assured’ and must be interpreted in that light.
Wrongful Prosecution
In O’Callaghan v Ireland [2019] IEHC 782,the High Court rejected a claim for breach of constitutional rights and breach of the European Convention on Human Rights where the plaintiff had been convicted of robbery and sentenced to 10 years imprisonment but the Court of Appeal decided there was insufficient evidence to submit the case to a jury
Faherty J.
“… not assert any recognised torts such as negligence, malicious prosecution or misfeasance in a public office. Notably, the plaintiff does not make a claim in negligence against the garda investigation: nor does he sue for misfeasance. In particular, he does not maintain that any entity, be that the gardaí, the DPP or the trial judge, acted with either malice or reckless indifference, which are the ingredients of the tort of misfeasance.”
Abuse of Authority
In McDonald v Conroy [2020] IECA 239 the Court of Appeal overturned a High Court judgement ordering a new trial on the issue of whether having consensual sex with a younger person involved exploitation or abuse of authority
Collins J
“Considered against the backdrop of this evidence, the argument made by Fr Conroy, but also by the School, that any sexual relationship between Fr Conroy and Ms McDonald was consensual and that its consensual character absolutely excludes any claim for civil redress by Ms McDonald seems rather surprising. If there was such a sexual relationship, it involved a gross breach of trust by Fr Conroy, as teacher and as Chaplain. It is, perhaps, particularly surprising that the School should be of the view that sexual relations between teacher and student ought to be entirely beyond the reach of the civil law provided that the student is 17 and consents, in circumstances where its own principal expressly recognises the harm such relations can cause to the student and where such conduct was prohibited by the School (and, it seems, by schools generally). If that is indeed the position as a matter of the law of tort in this jurisdiction, it might be thought to give rise to a significant question whether, having regard to the imperative requirements of Article 40.3 of the Constitution, that law is adequate to protect the personal rights of children.”
“There are many competing considerations. Certainty in the law is one and there are obvious advantages in having—as it was put—a ‘bright line rule’. It may be argued that any change in this area should be a matter for the Oireachtas. On the other hand, with some limited exceptions—such as the provisions regarding consent to medical procedures in section 23 of the Non-Fatal Offences Against the Person Act 1997—the Oireachtas has not considered it appropriate to legislate in this area, leaving the contours of tortious conduct, including issues of consent, to be developed by the common-law.”
Mental Health Detention
M.C. v The Clinical Director of the Central Mental Hospital [2020] IESC 28 related to a dispute between the Mental Health Review Board and the Clinical Director of the Central Mental Hospital in relation to the place of residence of woman committed to the Central Mental Hospital. The director had not imolemened the directions of the review board as he believed it was not in her best interests nor in the public interest. Thhe woman concerned sought damages for breach of her Constitutional rights.
“ person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right … but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right.”
“therefore, in the light of the evolution of the principle, whether the existing remedies can or are capable of providing a remedy for breach. Judicial restraint and the separation of powers suggest that the claim should be dealt with under that or those causes of action and it is only if an action at common law ‘is not available’, or does not provide an ‘adequate vehicle by which to vindicate the antecedent constitutional breach’, to quote the language of McKechnie J. in Blehein v. Minister for Health and Children, and if, as a result, the right may not be effectively, effectually, or adequately vindicated, that a court will fashion a remedy deriving from the breach of constitutional rights.”
“the substance of the present claim is for damages for breach of statutory duty and for misfeasance in public office, even if it is not so pleaded. The facts relied on by [the plaintiff] to ground her claim for damages fall within these recognised categories, even though she cannot on those facts establish an essential ingredient or element of the torts. It is only when, to use the language of McKechnie J., the suggested cause of action ‘cannot attract an appropriate or effective remedy’ that a court would fashion a remedy or right. What is ‘effective’ in that sense is not tested by reference to whether a plaintiff can establish the case, but whether the elements of the tort or what McKechnie J. calls its ‘parameters’, are present, and would establish a cause of action. When a remedy does exist under common law, under statute, or in equity, and [sic] no new alternative or exceptional remedy is required.”
“A cause of action exists for damages for this breach of statutory duty, but on the facts, she cannot bring her case within the elements of the tort because she cannot establish either that the Clinical Director knew his actions to be unlawful and would cause injury, or had acted with malice. In that regard, the dictum of Costello P. in W. v. Ireland (No. 2) [1997] 2 IR 141, at p. 169 is apposite: ‘it is necessary to consider why the plaintiff’s claim has failed’. The claim of [the plaintiff] fails because the facts do not warrant the award of damages under the nominate torts …
The actions complained of against the Clinical Director fall, quite clearly in my view, within the recognised category of misfeasance in public office or breach of statutory duty: the Clinical Director failed to take steps required of him by the statutory regime under which he could be, and was, directed by the Review Board to assess and then make the necessary arrangements to support the compliance, supervision, and enforcement by [the plaintiff] of the altered conditions. In doing so the Clinical Director breached his statutory obligations, and what is in issue is whether that breach by him offers a sufficient legal basis on which a cause of action could be maintained by [the plaintiff]. The answer to this question must be ‘yes’, and therefore the action against the Clinical Director is to be assessed in the light of the constituent elements of those torts. One element cannot be established on the facts, that element might broadly be called mala fides, and therefore while a cause of action exists, [the plaintiff] cannot succeed.
The conclusion that follows from the case law I have analysed must be that [the plaintiff] is not entitled to frame her action as one for breach of constitutional rights as she has available to her an effective remedy at common law, albeit she was unable on the facts to establish either mala fides or knowledge by the Clinical Director that his actions were in breach of his statutory powers and obligations.”
“A robust cause of action exists, but she cannot bring the facts of her case within the elements of that cause of action. She is in no different situation than she would be were she to have pleaded negligence and failed to show on the facts that a duty of care was owed to her or was breached by reason of an absence of the necessary nexus required to establish the tort of negligence.
It is not the remedy that is defective, but rather the facts do not meet the elements of that remedy.
It would therefore, in my view, be inappropriate for this Court to posit a new constitutional tort with strict liability, as the inaction by the Clinical Director was one capable of being the subject matter of a claim for breach of statutory duty and/or misfeasance in public office. I would adopt the comment in MacMahon and Binchy, Law of Torts (4th ed., Bloomsbury Professional, 2013), at p. 47, quoting from Budd J. in An Blascaod Mór Teo v. Commissioners of Public Works [1994] 2 IR 372, that there is ‘little justification for a regime of strict liability for infringement of constitutional rights’ and that ‘in such circumstances the principle of ubi ius, ibi remedium was too simple a formula and strict liability would, in many cases, be too low and easy a threshold to reach’.”
Misfeasance in Public Office
In Used Cars Importers Ireland Ltd v Minister for Finance [2020] IECA 298,the Revenue Commissioners had acted in good faith but unlawfully failing to provide criteria by which an open market selling price could be determined. A claim for breach of constitutional rights was rejected.
Murray J.
“for precisely the same reason as MC had no cause of action in constitutional tort for the failure of the respondents there to comply with their statutory obligation, the finding of the trial Judge that Revenue had acted bona fide means that UCII has no cause of action arising from the operation by Revenue of its statutory discretion in the determination of the OMSP. The conclusion is also important to the overall structure of public torts and their relationship with claims for constitutional damages. It follows from M.C. that a claim for damage for maladministration falls only to be determined within the rubric of common law torts of breach of statutory duty, misfeasance in public office or (where relevant) negligence and that claims for damages for breach of constitutional rights have no role in that arena.”