Personal Trespass Defence
Dunne v Clinton
Supeme Court 12 December 1931
Kennedy CJ: It is hardly necessary to reserve judgment in this case. We are all perfectly clear on the position. If it called for any elaborate consideration – we don’t think it does
– we would reserve it, but I think as the Court of Criminal Appeal laid down in Cox s
case 9 April 1929, there is no difference between detention and imprisonment. Taking a classical definition of imprisonment from the Terme de la fey:
“Imprisonment is the restraint of a man’s liberty, whether it be in the open field, or in the street or cage in the streets, or in a man’s own house as well as in the common goal. And in all these places the party so restrained is said to be a prisoner for so long as he hath not his liberty freely to go at all times to all places whether he will without bail or main prize.”
Now, this thing for which this new term of ‘detention’ has been invented and is sought to be introduced is imprisonment within the recognised definition of the law. Taking that old definition as a standard, on the evidence here there is no question, because with all the astuteness and ability of Mr Lynch, he has not been able to show that those men were voluntary boarders for two days in the police barracks. On the evidence they were not free men from the hour when their prolonged interrogation terminated. There is no question of the proper grounds of their arrest or of their interrogation. The only question is whether they were illegally detained, so as to have a cause of action for false imprisonment from the end of that interrogation until they were subsequently brought before a peace commissioner. Mr Binchy puts his theory of the commencement of the detention at 10 o’clock of the morning of the next day after their arrest, because he does not attempt to make the case that a peace commissioner should have been summoned from his bed at four o’clock in the morning when the interrogation had ended to determine whether those men should have been remanded on bail or in custody. They were, however, brought into contact with a solicitor who intervened on their behalf, and were brought before a peace commissioner. No justification is brought for the imprisonment, beyond this, that the guards were entitled to detain those suspected of crime. But the question is, whether it is a justification for a prolonged detention or imprisonment to say that the crime was being investigated. I am of the opinion that is not a sufficient answer, because that may run to any length of time, and the time test is not whether the police had a reasonable time to formulate a charge which they propose to bring, but when they could conveniently bring them before a peace commissioner in order to have their fate determined validly in law so as to be an answer, if a habeas corpus had been applied for under the article of the Constitution which declares that most important principle laid down there cannot be waived aside for the sake of some indefinite investigation within the will and determination of the police officers themselves.
Now, in my opinion they may be detained only until they can be brought before – and this is to be done as soon as can conveniently be done – a peace commissioner and a charge preferred and an order made, either that they be remanded in custody or bail, and the only alternative is to discharge them from custody. The defendant has taken the responsibility of detaining in both of these cases and detention is nothing different from imprisonment and having gone beyond a period at which the services of a peace commissioner could have been conveniently obtained, the imprisonment is not justified and the appeal must be dismissed.
FitzGibbon J: I agree. I have very little to add. I think that the proposition that the plaintiffs were not under restaint up to the moment at which they were finally arrested and brought before a peace commissioner is not only not open on the evidence, but I don’t think that Mr Clinton himselfreally desired to put it forward at all. He considered he was acting within his rights and performing no more than his duty in seeing that those men were not allowed to depart from the barracks and go away while he was investigating the alleged burglary. The result of this case will be to save other energetic and diligent Superintendents from exceeding their powers in what they honestly believe to be the performance of their duties, for it has now been decided definitely, not only by the Central Criminal Court, but by this court, that there is not such thing as detention which is not arrest. A man is not at liberty if under detention. Mr Clinton fully understood the action of his subordinates and accepted responsibility for it. So far as the rest of the case is concerned, I agree that the reasonableness of the duration of the detention is to be measured by the facilities for requisitioning the services of a District Justice or peace commissioner and not by the exigencies of preparing a good or plausible case against a suspected person. The peace commissioner before whom a person charged has been brought on the mere suspicion of the Garda has no option to discharge the prisoner. He must if any evidence is offered remand either in custody or on bail and remit the case for hearing to the District Court and in a proper case the prisoner will be brought up on a formal charge before the District Court and the case must go on and be ended by the discharge of the prisoner or by his return for trial. The provisions of sec 88(4) of the Courts ofJustice Act (No 10 of 1924) as to the bringing ofa person charged with an offence before a peace commissioner have been amended in the Courts of Justice Act 1928, s 10 by the omission of the word “forthwith” but this omission does not exempt the Garda from the duty of exercising all reasonable promptitude and in each case the peace commissioner’s jurisdiction attaches only if a District Justice is not immediately available. The effect of the Constitution is that a person may not be kept under restraint at the will of a police officer or civilian except upon the order of some judicial officer such as a District Justice, or, where a District Justice is not immediately available, of a peace commissioner.
Murnaghan J: I also agree. The authorities cited in argument show that when a person is apprehended by a police officer on a reasonable suspicion of having been implicated in a felony within a reasonable time previously – this form of apprehension, is imprisonment – it would be justifiable if the police had gone either before a peace commissioner or District Justice within a reasonable time. “Reasonable time” is ascertained by considering when a peace commissioner is available and not the time when the police authorities thought they would have a good case formulated against the accused. The peace commissioner or District Justice is the person to determine whether he should be allowed to be detained in a case like the present.
Dowman v Ireland
[1986] ILRM 111 (HC, 1985)
Barron J: The plaintiff is now aged seventeen. Four years ago, he was caught by the assistant manager of a supermarket in the act of stealing a four stone bag of potatoes. He had been sent to buy these by his mother, but had been given something less than their price. He was accompanied by his sister and a cousin, two little girls aged three and four respectively. When caught he and the two young girls were brought to the back of the shop as was a child’s fold-up go-cart which the plaintiff had been pushing and in which the potatoes had been placed. The gardai were sent for by the manager. These proceedings claim damages for an injury received by the plaintiff while being brought to the Garda Station.
In answer to the manager’s call two guards arrived in a patrol car. Having parked the car outside the shop they came to the back of the shop where the manager was waiting with the three children. The third-named defendant (the Garda defendant) took charge of the matter. Having been told what had happened, he asked the plaintiff for his name and address and the names of his parents. He decided to charge him with the larceny of the potatoes and formally arrested him. Meanwhile the driver of the patrol car sought to calm the two small children who were crying and clearly distressed.
The defendant Garda having decided to bring the plaintiff to the Garda Station, the entire party walked through the shop and out to the patrol car. There is a conflict of evidence as to how the plaintiff was brought out. He says that he was marched out of the shop between the two guards, that he pushed the go-cart with his left hand and that the defendant Garda held his right hand twisted behind his back. He says that the manager and the two young children followed them. He complained that as he walked out he was forced to lean forward and that on two or three occasions he complained that his hand was being hurt. The manager is totally vague as to the manner in which they all left his shop and has no real recollection save that of unnecessary roughness on the part of the guard. Both guards say that the defendant Garda pushed the go-cart and held the plaintiff’s right wrist in his left hand and that his colleague followed shepherding the two young children, one on either side of him, and finally the manager brought up the rear. An independent witness, Mr Rocca, who was not called in the Circuit Court saw the two guards and the three children on the pavement outside the shop before they got into the patrol car. He supports the two guards as to how the plaintiff was being held and as to who was pushing the go-cart. He apparently remembered the incident when it was recalled to him after three years. In his own words when introduced to the defendant Garda by a mutual friend he recognised him as the guard involved in a bit of ‘aggro’ on the occasion.
When the car was reached there is again a conflict of evidence as to what occurred.
The plaintiff says that the defendant Garda told the two young children to go home and that he, the plaintiff, said that he was not getting in the car unless the two children did also and that he turned around as he said this. At that stage he says the defendant Garda was holding him with both hands and that he heard a click in his wrist. Both guards say that as the plaintiff was getting into the car he suddenly jerked his arm once to try to break free but failed to do so and that it was only after that incident that there was any insistence that the children should go in the car with them and this was not accompanied by any struggle. The plaintiff also said that the defendant Garda pushed one of the children when he told them to go home. Neither guard was cross-examined as to this aspect of the incident nor as to any remark made to the children that they should go home.
In any event the children were brought home by the squad car. While there the plaintiff’s mother became annoyed with her son, came out to the car, took the money she had given him from him and struck him. There is a conflict of evidence as to whether she did so more than once, whether he put his hands up to protect himself and whether she got into the car or did what she did through the open window. The plaintiff and his mother both say that she bent in through the open window of the car and struck him once and that he did not put up his hand to protect himself. The two guards say that she got into the car, struck him several times until told by them to stop and that he put his hands over his ears to protect himself.
The plaintiff was then brought to the Garda Station where he was kept for about an hour and a half and then released when his older brother arrived. He was not charged but was dealt with under the Juvenile Liaison Scheme. When outside he told his brother that his wrist had been hurt. His brother brought him back and a formal complaint was made. No evidence as to the actual injury alleged was adduced, but equally it was not suggested that such a complaint had not been made.
When he returned home, the plaintiff’s wrist was still paining him and he was brought to see the family doctor. The latter sent him to Jervis Street Hospital where he was treated in the out-patients department. Mr De Vella the head of this department gave evidence, to which there was no objection, both from the case notes and his own examination some months later in August 1981. The plaintiff was unable to use his right wrist which was tender, swollen, stiff and bruised and causing him some pain. The tenderness was on the side of the wrist behind the thumb. Both flexion and extension of the joint was limited. X-ray of the wrist suggest to Mr De Vella that there was a fracture of the bone, though the opinion of the consultant radiologist was that there was no such fracture. X-ray of the hand was negative.
Plaster of paris was applied in the hospital. This was removed on 8 May 1981 and replaced by strapping which was kept on for about two weeks. Mr De Vella himself did not see the plaintiff until 31 August 1981 at which time he said that he had been off school for a week and had given up hurling for about six weeks. At that date he had some tenderness at the side of his wrist behind his little finger. His movements were full, he could make a full fist and he had a strong grip. No marks were visible on the wrist. When seen in March 1984 the plaintiff complained of some discomfort when lifting heavy objects with his right hand or when two burley sticks clashed. A further X-ray gave no assistance as to whether or not there had been a fracture.
Mr De Vella’s opinion was that the plaintiff either suffered a sprain of his wrist or a fracture which in context was a minor injury of no consequence since, if it had existed, the bone had knitted fully. He said that the injury sustained was one normally associated with a fall where the hand was stretched out for protection. His opinion was that it would not been caused by a blow nor by sustained twisting. If the latter had taken place he would have expected hand and finger movements to be stiff and painful which was not the case. In his opinion the likely cause of the injury was a jerk while the wrist was being held, more likely if there was an attempt to pull the hand away, and even more likely if at the same time the wrist was twisted. His opinion was that if the plaintiff had to lean forward as suggested in his evidence that he would have done so to avoid pain in his shoulder and not in his hand. In his opinion there must have been a considerable degree of force involved to cause the injury complained of. No other medical evidence was
adduced.
I am satisfied from the evidence that the plaintiff admitted that he had attempted to steal the potatoes, that he was kept in the shop until the guards arrived and that he was then arrested. He was led out to the patrol car by the defendant guard who held his right wrist loosely in his left hand while pushing the go-cart with his right. The other guard followed with the two children and the manager brought up to the rear. I accept the evidence of the two guards in this respect. I do not accept the evidence of the plaintiff. If he had to bend forward it would have been to protect his shoulder, not his hand or wrist. Further, if his wrist had been twisted as he alleged then the nature of his injury would on the medical evidence have been different. Again he was unconvincing in his evidence and gave three separate versions as to how the guard held him while he was being walked out to the patrol car, I discount the manager’s evidence because he thought the party had left through a check-out aisle when it was clear from all the other witnesses that they had left by the entrance doors and also because he was clearly unable to
recollect the details of the incident.
When the party reached the car there was some hiatus. It seems likely that the plaintiff thought that the two children were going to be left behind and that he tried to refuse to get into the car. I think that there was more than just a sudden jerk by him but something of a scuffle. In a sense this is corroborated by Mr Rocca and also by the second guard when he said that the defendant Garda appeared to tighten his grip following the alleged jerk. It is in any event common case that the plaintiff was at some stage not prepared to enter the car unless the two small children also did so. I do not accept the version either of the plaintiff or of the two guards. The plaintiff must have done more than just turned his head as he was entering the car. Equally there must have been more than just one sudden jerk. Since the plaintiff was being held by the wrist then, so long as he was so held, his wrist would have come behind him as he entered the car provided the defendant Garda remained on the pavement. In my view this is what happened and it is the manager’s recollection of seeing this happen, coupled with the fact of the scuffle, which prompted his overall view that there was unnecessary
roughness.
When the car reached the plaintiff’s home it is difficult to determine what actually happened. Both versions are improbable. The plaintiff’s mother is a very small woman and would have been unlikely to have been able to lean through the open window of the car. Equally it is unlikely that she would have been allowed actually to get into the car on her own with her son. Probably, she leaned in through the open door and gave her son more blows that she remembers. In any event the medical evidence does not support the suggestion that the injury was sustained by a blow from her.
It was also suggested that the injury might have been sustained by a blow from a burley. If so, then it was sustained before the plaintiff set out to get the potatoes. This is highly unlikely. I am fully satisfied that he sustained the injury in the course of a scuffle induced by his belief that the children would be left behind. There was no substance in such belief because even if the defendant Garda had told them to go home the other Garda would not have permitted them to do so on their own.
I am satisfied that the plaintiff suffered no injury while being led from the back of the supermarket to the Garda car, nor was there anything improper in the manner in which that journey was conducted. The injury which he did suffer was sustained while he was entering the patrol car in the course of a scuffle with the defendant Garda. I take the view that the latter was aware that the plaintiff was concerned about his two young charges and that his efforts to resist being put into the patrol car were not in order to escape but to ensure that his two young charges would not be left on the street. The force used by the defendant Garda in those circumstances to ensure that he entered the patrol car was the cause of the plaintiff’s injury.
For the plaintiff to succeed, he must establish either that the act which caused the injury was not one done in the execution of the defendant Garda’s duty, or, ifit was, that the degree of force used was unreasonable. The first question is to determine whether what was done was done in the execution of the defendant Garda ‘s duty. In Kemlin v Gardiner [1966] 3 All ER 931 the appellants had been convicted of assaulting the police in the execution of their duty. The police officers had taken hold of the appellants not to arrest them but to question them and the appellants had struggled in an effort to escape. The court held that as what the officers had done was not done as an integral step in the process of affecting an arrest but merely to hold the appellants for questioning there had been a technical assault. Their conviction was accordingly quashed since the police were not acting in the execution of their duty. This decision was follows in Pedro v Diss [1981] 2 All ER 59, where a similar decision was reached on similar facts.
In the present case, the defendant Garda was not acting in the course of his duty when the injury to the plaintiff was caused. An arresting officer is entitled to use such force as is reasonably necessary to effect an arrest. Once the arrest has been effected, then he is also entitled to use such force as is necessary to ensure that the arrest is maintained. The defendant Garda was doing neither of these things. He was acting neither to effect an arrest nor to maintain one, but to deny the plaintiff the right to concern himself with the welfare of his charges. He was not therefore acting in the execution of his duty and consequently the use of force by him was an unlawful act. That being so, the question as to whether or not the amount of force used was reasonable does not therefore arise. In any event, it would be difficult to find circumstances in which the use of such force as to cause the injury complained of could be found to be reasonable where, as here, the injury was to a young boy appearing to be between ten years and twelve years and in the effective custody of two Garda officers.
The plaintiff is entitled to succeed. No doubt his struggles attributed to his injuries. Nevertheless the effective reason for these injuries was the denial by the defendant Garda of his right to concern himself with the welfare of his young charges. In my view, liability should not be apportioned. I accept the evidence of Mr De Vella as to the nature of the injuries sustained by the plaintiff. I propose to award him a sum of £3,500 and there will be judgment for that sum.
Temple Street v D and another,
[2011] IEHC 1, Hogan J.JUDGMENT of Mr. Justice Hogan delivered on the 12th January, 2011
1. In the early hours of the morning of 27th December, 2010, following a hearing in my house I made an order sanctioning the administration of a blood transfusion to a three month old baby who was desperately ill and who, I was told, urgently required that transfusion within a matter of hours. Although for the reasons I shall now shortly outline, a public hearing of the matter was perforce impossible in the circumstances and even though I also made an order pursuant to s. 27 of the Civil Law (Miscellaneous Provisions) Act 2008 (“the 2008 Act”) prohibiting the publication or broadcast of any matter that would be likely to identify the baby in question, at the conclusion of the hearing, I nonetheless indicated that I proposed to deliver a judgment in open court. The purpose of this judgment, therefore, is not only to give written reasons for my decision , but also to fulfil insofar as it is possible to do so, the requirement of Article 34.1 of the Constitution that justice be administered in public “save in such special and limited cases as may be prescribed by law.” While it was not possible to hold the hearing in open court, the delivery of this judgment will perhaps mitigate the effect of this somewhat by providing a record of what transpired.
2. In line with the order which I made under s. 27 of the 2008 Act, I propose to use random letters to describe the baby (“Baby AB”) and the parents (“CD and EF”) to ensure that his identity is not thereby disclosed.
3. AB was born in September 2010, but his twin sister sadly did not survive. The baby was very unwell by reason of acute bronchiolitis on 25th December, 2010, and his condition deteriorated further during the course of the day. At one point AB stopped breathing and had to be resuscitated. He also had a hypoxemic episode (i.e., a period of low oxygenation), an incident with potentially ominous implications,
4. AB was transferred from another hospital to the plaintiff hospital in the early hours of 26th December. By the early evening of 26th December the situation had become critical. While AB suffers in any event from low haemoglobin, this level was dropping further by reason of his illness and by reason of necessary blood testing that was deemed clinically essential for treatment optimisation. The fact that the haemoglobin was dropping further significantly hindered the capacity of his body to deliver oxygen to his vital organs and to maintain normal neurological functions. In that regard, evidence was given to the effect that AB’s liver was somewhat distended .
5. The usual trigger for a blood transfusion is where the haemoglobin levels drop below 8.0 g/dl. By 9pm on 26th December, it was clear that the haemoglobin level was on a downward spiral and had reached the point where a transfusion was now absolutely necessary. While AB’s parents, CD and EF, were clearly anxious for his welfare and sought the very best medical care, as committed Jehovah Witnesses, they were steadfast in their opposition to this procedure. They had, however, consented to the use of certain blood products earlier that day which had been administered to AB. By this point, however, it was clear that this in itself would not be sufficient and that a transfusion was now necessary.
6. Faced with this objection from the parents, the Hospital resolved that it should then apply to this Court for an order which sanctioned the transfusion. Contact was made with the Duty Registrar who in turn made contact with me shortly after 10pm on 26th December. It was agreed that an emergency hearing would be held in my own house at midnight or as soon thereafter as the parties could assemble.
7. In the event, the hearing commenced shortly before 1am on the morning of 27th December and concluded at about 2.30am. The Hospital was legally represented by solicitors and counsel and the parents appeared in person.
8. At the hearing counsel for the Hospital, Mr. McEnroy S.C., stressed the urgency of the matter and why a transfusion was absolutely necessary in the circumstances. While the parents were present, it was simply not possible in the circumstances for them to be legally represented or to have members of Hospital Liaison Committee of the Jehovah Witnesses present. The treating consultant, Dr. Kevin Carson, who is Clinical Director of Intensive Care at the plaintiff hospital, was sworn and gave evidence detailing the medical history to date. He confirmed that AB’s life was in danger . He specifically confirmed in answer to a direct question from me that there were no medical alternatives to a transfusion and that the issue had to be dealt with immediately within a matter of hours.
9. As already indicated, the parents, CD and EF, were also present. They said that it had not been possible to obtain professional representation given the time constraints. They are the parents of a large family and it appears that this Court has also sanctioned a blood transfusion in respect of another child of theirs, so that they were to some extent familiar with the issues which would arise in such an application. While they wanted the best for their child and were delighted with the quality of the medical care which he had received, they explained that given the tenets of their religious faith they could not possibly consent to a blood transfusion. They also said that they understood their religious objections would be overridden by this Court and they seemed resigned to this fact.
10. There is no doubt as to the sincerity of the religious beliefs of the parents. They struck me as wholesome and upright parents who were most anxious for the welfare of their child, yet steadfast in their own religious beliefs. An abhorrence of the administration of a blood transfusion is integral to those beliefs. Mr. McEnroy S.C. for the Hospital very fairly acknowledged that it would be unreasonable to ask the parents to compromise their strongly held religious beliefs and it was for this reason that this application was thus made.
11. At the conclusion of the hearing I indicated that I would grant the orders sought and deliver my reasons in open court.
12. Before addressing the questions dealing with religious freedom and the welfare of AB, I propose first to address the reasons why it was not possible to have the hearing in open court, together with the circumstances in which I came to make an order under s. 27 of the 2008 Act.
Section 45 of the Courts (Supplemental Provisions) Act 1961 – hearing otherwise the in public
13. While Article 34.1 of the Constitution requires that justice “shall be administered in public”, save “in such special and limited cases as may be prescribed by law”, one such exception is provided by s. 45(1) of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) which provides that:-
“45.—(1) Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters;
(d) proceedings involving the disclosure of a secret manufacturing process.”
14. This application was undoubtedly urgent and relief by way of injunction was sought, so that the matter came within s. 45(1)(a) of the 1961 Act. Since the issue concerned a minor, it also came within s. 45(1)(c). Given the time constraints, the time of year and the fact that the application had to be heard in the early hours of the morning, I concluded that the most practicable venue for the hearing was in my own private residence. In passing, I should also add that a further consideration in that regard was that heavy snowfalls had blanketed the Dublin region, making travel at that time very difficult.
15. The hearing which took place in the early morning of 27th December was perforce heard otherwise than in public, since as Walsh J. put it in Re R Ltd. [1989] I.R. 126 at 134, “the doors of the court” were not open to the public. While the hearing was otherwise then in public, this was authorised by s. 45(1)(a) and s. 45(1)(c) of the 1961 Act. But while this was necessary and unavoidable, I believe that – not least given the importance of the matter – it is desirable in the public interest that the primary command of Article 34.1 regarding the public administration of justice be nonetheless observed insofar as it is now possible to do so and that by delivering a judgment in open court the public can at least thereby become aware of the existence of these proceedings and their outcome.
Section 27 of the Civil Law (Miscellaneous Provisions) Act 2008
16. Section 27(1) of the 2008 Act provides that:-
“27.— (1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.”
17. Section 27(2) states that an application for an order under this section may be made at any stage of the proceedings. However, s. 27(3) provides:-
“(3) The court shall grant an order under this section only if it is satisfied that—
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and
(c) the order would not be prejudicial to the interests of justice.”
18. The phrase “relevant person” is defined by s. 27(11) as meaning:
“(a) a party to the proceedings, or
(b) a person called or proposed to be called to give evidence in the proceedings.”
19. An order under s. 27 (1) of the 2008 Act was sought by the Hospital, since, of course, the non-identification of patients is a key feature of the confidentiality which is integral to the medical profession. CD and EF are, of course, parties to the proceedings and at the hearing before me indicated that they were – understandably – most anxious that neither they nor their family would be personally identified. Baby AB plainly had a “medical condition” and I was satisfied that his non- identification would not be prejudicial to the interests of justice.
20. It was on that basis that I made the order under s. 27(1). This presents one potentially difficult issue of interpretation which would have benefited from further argument had the time and opportunity been available which, however, was simply not the case. While this is not completely satisfactory, I must nonetheless now perforce address this question.
21. As we have seen, s. 27(3) provides that the relevant person must have the medical condition and that “his or her identification as a person with that condition would be likely to cause undue stress to him or her”. In the present case, if one views s. 27(3) literally, then the only relevant person for present purposes is Baby AB. It is true that his parents are “relevant persons” within the meaning of s. 27(11) insofar as they were potential witnesses, but, of course, they did not have the medical condition which would justify the making of the order. And while Baby AB did have the relevant medical condition, given that his very young age he naturally did not have any consciousness or capacity in relation to the proceedings. He thus remained mercifully oblivious to the unfolding medical emergency. Again, viewed literally, it could not be said that even if Baby AB’s identity were to be revealed, this would cause “undue stress” to him within the meaning of s. 27(3)(b), precisely because he could not have had any consciousness of this fact.
22. If this is correct, then it would mean that the court would be powerless to make an order under s. 27 of the 2008 Act where – as here – the subject-matter of the application was a baby or a very young child, even though the identification of the child might cause immense distress to the parents or other close relatives. It would likewise mean that no order could be made under s. 27 where the proceedings concerned a patient who was unconscious or in a coma. I find it difficult to believe that the Oireachtas intended to create such an anomalous state of affairs.
23. It is clear that the literal rule remains the primary rule of interpretation: see, e.g., But given that s. 27 is essentially a remedial provision designed to complement the traditional concepts of medical confidentiality in a legal setting, it can be interpreted “as widely and liberally as can fairly be done”: see Bank of Ireland v. Purcell [1989] I.R. 327 at 333, per Walsh J.
24. In these circumstances, it is, I think, legitimate to have regard to the provisions of s. 5(1) of the Interpretation Act 2005. This provides:-
“5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
25. In my view, the present case comes squarely within the provisions of s. 5(1)(b) of the 2005 Act, since the literal interpretation “would fail to reflect the plain intention” of the Oireachtas. In these circumstances, I believe that it is permissible to adopt a teleological approach to s. 27 by interpreting it broadly and without doing too much violence to the statutory language so as to permit the making of an order in a case such as the present, even though the child in question who has the medical condition will not by reason of its very young age suffer the stress which the language of s. 27(3)(a) would otherwise appear to require. Even if I am wrong in this, it is clear that as the present proceedings come within the ambit of s. 45(1)(c) of the 1961 Act, it is permissible to hold the proceedings in camera, while circulating the judgment and making its contents public in such a way as will preserve the anonymity of Baby AB: see, e.g., Attorney General v. X. [1992] 1 IR 1 at 46, per Finlay C.J. Either way, the identity of Baby AB – and, hence, his family – will thus be protected from disclosure. At the same time, I respectfully suggest that the Oireachtas might usefully wish to re-examine the actual language of s.27 of the 2008 Act in the light of the facts of this case.
Freedom of Religion
26. If we turn now to the substantive questions at issue, the starting point is, of course, Article 44.2.1 of the Constitution which provides:
“Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”
27. Along with the guarantee of free speech in Article 40.6.i, Article 44.2.1 guarantees freedom of conscience and the free practice of religion. Taken together, these constitutional provisions ensure that, subject to limited exceptions, all citizens have complete freedom of philosophical and religious thought, along with the freedom to speak their mind and to say what they please in all such matters. Article 44.2.1 protects not only the traditional and popular religions and religious denominations – such as, for example, Roman Catholicism, the Church of Ireland and the Presbyterian Church – but perhaps just as importantly, it provides a vital safeguard for minority religions and religious denominations whose tenets are regarded by many as unconventional.
28. If one may be permitted to speak bluntly, the antipathy of the Jehovah Witnesses to the taking of blood products may well come within the latter category. Most Irish people would, I suspect, express unease and even disdain for a religious belief which required its faithful to abjure what is often a life saving and essential medical treatment. The Witnesses, on the other hand, regard the blood prohibition as one which is not only scripturally ordained in view of the admonition in Acts 15:29 requiring Christians to “abstain from meats offered to idols, and from blood, and from things strangled, and from fornication”, but is one which also poses – when it arises – a practical test of faith.
29. A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which Article 44.2.1 pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette 319 U.S. 624 (1943):
“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”
30. It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 IR 7.
Article 42: Family Autonomy and the Position of Children
31. Of course, the present case concerns not an adult, but a very young baby. In this regard, Article 41 and Article 42 of the Constitution come squarely into play.
32. Article 41.1 provides:
“1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2º The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
33. Article 42.1 provides:
“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.”
34. Finally, Article 42.5 provides:
“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”
35. There is thus no doubt at all but that parents have the constitutional right to raise their children by reference to their own religious and philosophical views. But, as Article 42.5 makes clear, that right is not absolute. The State has a vital interest in ensuring that children are protected, so that a new cohort of well-rounded, healthy and educated citizens can come to maturity and are thus given every opportunity to develop in life. This interest can prevail even in the face of express and fundamental constitutional rights. No one would suggest, for example, that the right of the State to protect children against possible exploitation and abuse would not, for example, enable the Oireachtas to enact legislation prohibiting the involvement of children in street preaching and the distribution of religious literature on the street at night, even if such activities were thought by some to be scripturally mandated or that the children were being directed in such religious activities for religious reasons by their parents: see, e.g., the judgment of Ruttledge J. for the US Supreme Court on this very point in another noted decision concerning the Witnesses, Prince v. Massachusetts 321 US 158 (1944).
36. Of course, the right of the State to intervene and thus to override the constitutional right of the parents is expressly circumscribed by the language of Article 42.5. The circumstances must be “exceptional” and the intervention proportionate (“…..with due regard”) to the circumstances. There must also have been a “failure” of duty on the part of parents. But there is absolutely no doubt but that the court can intervene in a case such as this where the child’s life, general welfare and other vital interests are at stake. As Denham J. said in North Western Health Board v. HW [2001] 3 IR 622 at 727:-
“The courts will only intervene and make an order contrary to the parents’ decisions and consent to procedures for the child in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.”
37. Of course, in one sense – as Birmingham J. pointed out in a case with very similar facts, Re Baby B, High Court, 28th December, 2007 – the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.
38. Given that Article 40.3.2 commits the State to protecting by its laws as best it may the life and person of every citizen, it is incontestable but that this Court is given a jurisdiction (and, indeed, a duty) to override the religious objections of the parents where adherence to these beliefs this would threaten the life and general welfare of their child.
39. It was for these reasons that I granted a declaration to the effect that it would be lawful in these particular circumstances for the Hospital to administer a blood transfusion (along with other associated blood products) in the case of Baby AB. As Dr. Carson made clear in his evidence to me, such a course of action was clinically necessary and urgent and all possible alternatives had been exhausted. This declaration is, of course, limited to these clinical events and is not to be construed as conferring on clinicians an open ended entitlement into the future to administer such treatment to Baby AB irrespective of the wishes and beliefs of the parents.
Buckley -v- Mullignan & Ors
[2016] IECA 264
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Judgment of Ms. Justice Irvine delivered on the 4th day of October 2016
1. This is the appeal of the plaintiff, Mr. Liam Buckley, against the order of the High Court (De Valera J.) dated 18th December, 2013. That order was made following a six day hearing before a jury of his claim for damages for wrongful arrest, false imprisonment, assault and battery, and a further claim for damages for personal injuries allegedly sustained as a result of negligence on the part of the defendants in and about his arrest on the 24th September, 2011, at George’s Street, Drogheda.
2. It is common case that Mr. Buckley failed in his claims for wrongful arrest, false imprisonment, assault and battery. He was, however, successful in his claim for negligence albeit that the jury found him guilty of contributory negligence to the extent of 69%. The jury assessed his entitlement to damages in the sum of €16,875 with the effect that, having regard to his contributory negligence, he obtained an order for judgment in the sum of €5,231.25. As to costs, the High Court judge awarded Mr. Buckley his costs on the District Court scale limited to a two day hearing, when taxed and ascertained.
The appeal
3. Whilst a relatively extensive notice of appeal was filed on Mr. Buckley’s behalf, by the time the appeal came before this Court his grounds of appeal had been reduced to three in number. These may be summarised as follows:-
(i) That the award of general damages in the sum of €16,875 was inadequate having regard to his injuries and should be set aside as an error of law;
(ii) that the jury’s finding of 69% contributory negligence was grossly disproportionate having regard to the evidence; and
(iii) that the trial judge erred in law in making the costs order which he did having regard to the relevant statutory provisions.
Submissions of the parties
4. Mr. Burns, S.C., on Mr. Buckley’s behalf, submitted that a gross award of €16,875 was not proportionate or just having regard to the severity of his client’s injuries. He referred the Court to Mr. Buckley’s own evidence and to that given by the orthopaedic surgeons retained by the respective parties. They were agreed as to the extent of his injuries and as to his likely prognosis. He had sustained an un-displaced fracture of the malleolus and his left leg was in a cast for six weeks. He had then required some physiotherapy and remained somewhat symptomatic for a period of over two years.
5. Mr. Burns relied upon the Book of Quantum, published in 2004, to demonstrate the error of the jury’s award. In respect of fractures to the lower leg which were substantially recovered, the parameters advised were €15,400 – €34,600. Those values were significantly out of date and were, he submitted, approximately 50% below what a judge sitting alone would be expected to award for the equivalent injury. He relied upon the decision of this Court (Edwards J.) in Cronin v. Stevenson and Another [2016] IECA 186 in support of his submission that the parameters for an award for a fractured ankle at the time of the hearing ought properly to have been within the €25,125 – €52,950 range. Having regard to the severity of Mr. Buckley’s symptoms, his award should have been in the mid to upper end of this range of values.
6. As to contributory negligence, Mr. Burns accepted that he bore the onus of demonstrating that the jury had made a gross error when it apportioned liability as it did. He accepted that there was evidence to support a finding of contributory negligence on the part of his client, principally by reason of his alcohol consumption. As to the extent to which such consumption likely contributed to his injuries, counsel drew the Court’s attention to the fact that his client had been considered sufficiently sober to receive an adult caution thirty minutes after his arrival at the garda station. The jury’s finding should have been no more than 30% – 50% given that Mr. Buckley’s liability had to be assessed by reference to his blameworthiness for the injury sustained. Mr. Buckley had never previously been arrested and had not been involved in any disturbance on the night in question. His injury was sustained as a result of the fact that, in the course of his arrest, he and Gda. Mulligan had fallen to the ground. That fall occurred because they lost balance. He accepted that his client’s resistance to arrest would have been a contributory factor but submitted that Gda. Mulligan also contributed to the fall insofar as he had lent in over Mr. Buckley applying weight to him in the course of a turning manoeuvre. As to the extent of Mr. Buckley’s resistance, Mr. Burns relied upon his custody record which recorded the “circumstances of the offence” and which made no reference to his client having resisted arrest.
7. As to costs, Mr. Burns submitted that s. 94 of the Courts of Justice Act 1924 (the “1924 Act”) applied and that, in the absence of special circumstances, having succeeded in his action Mr. Buckley should have been awarded his costs on the High Court’s scale. Whatever about awarding him costs on the Circuit Court scale there were no circumstances to justify the limitations that had been imposed by the High Court judge particularly having regard to the fact that the award was low due to the manner in which the jury had apportioned liability. Mr. Buckley was entitled to pursue his action for wrongful arrest, false imprisonment, assault and battery before a jury and likewise his claim for damages for negligence, given that that cause of action arose out of the same set of facts. He could only have a jury trial in the High Court. Regardless of the fact that he had lost his claims for wrongful arrest, false imprisonment, assault and battery, those proceedings had been reasonably pursued and he had succeeded in his claim for damages for negligence. Thus, counsel submitted, Mr. Buckley’s entitlement to costs fell to be considered in the context of an action properly brought in the High Court.
Respondents’ submissions
8. Mr. Callanan, S.C., on the defendants’ behalf, accepted that the award made by the jury was somewhat frugal. However, it was not disproportionate to the point that it should be considered to amount to an error of law. The award came within the lower end of the range advised in the Book of Quantum. He submitted that an appellate court should afford a jury somewhat greater latitude than it would do a judge sitting alone when considering whether the award ought to be set aside on the grounds that it lacked proportionality.
9. As to the jury’s apportionment of liability, Mr. Callanan submitted that the plaintiff had not established that it had made a gross error as was required to displace its finding of contributory negligence. There was evidence to support a substantial finding of contributory negligence. He relied upon Mr. Buckley’s consumption of alcohol, the fact that he had resisted arrest and that he had been generally uncooperative.
10. As to the award of costs made by the High Court judge, Mr. Callanan argued that s. 17 of the Courts Act 1981 (the “1981 Act”), as amended, applied. The plaintiff had lost all of his causes of action that had entitled him to a jury trial and had only succeeded in his claim for damages for negligence. The test advised by Mr. Burns was, he submitted, one which was incapable of application. The judge’s determination as to the proper order to be made in respect of costs should not be based upon a consideration of whether or not a claim which had been unsuccessful had been reasonably pursued.
Relevant legal principles
11. The relevant legal principles and authorities require that awards of damages should be:-
(i) Fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate with the scheme of awards for personal injuries generally.
12. Because the appellate court does not have the opportunity of hearing the evidence and assessing the credibility of witnesses, it should not readily interfere with an order made by a judge at first instance or indeed by a jury. That said, an appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded and that which the appellate court considers appropriate in respect of the injuries sustained. In Rossiter v. Dun Laoighaire / Rathdown County Council [2001] 3 IR 578 at 583 Fennelly J. described the role of an appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne (1876) I.R. 10 C.L. 160).”
13. It is generally accepted that an appellate court should not engage in what might be described as petty interference with an award of damages and should only interfere if satisfied that the error in the award is so serious as to render it unjust or lacking in proportionality having regard to the injuries sustained. The proportionality test is particularly appropriate insofar as it can readily be applied to any appeal regardless of whether the complaint made by the appellant is one of excessive generosity or undue parsimony on the part of the judge or jury.
The appeal concerning the quantum of damages
14. Having considered the submissions of the parties and the evidence given in the Court below I am quite satisfied that the award of the jury in this case was not fair to Mr. Buckley and was sufficiently disproportionate to his injuries that the same must be set aside as an error of law.
15. I reject the submission made by Mr. Callanan that an appellate court should be slower to interfere with an award made by a jury than one made by a judge sitting alone. While he may be correct when he asserts that a jury is more likely than a judge sitting alone to make an award which is either overly generous or excessively frugal, I can see no logical basis for his argument that the appellate court should overlook such excesses if authored by a jury but not if authored by a judge.
16. It has to be remembered that the principles to be applied by an appellate court when considering an appeal from an award of damages in respect of personal injuries have not changed in any substantial way from those which applied prior to the abolition of juries in 1988. Accordingly, it is difficult to see on what legal basis the Court could adopt the approach advanced by Mr. Callanan. Further, the role of the appellate court in a personal injuries claim is to correct any error in the award made by the Court of first instance which would otherwise perpetrate an injustice on one of the parties. How could it be just and fair that a plaintiff who received an insufficient award of damages from a judge sitting alone would be entitled to have that wrong rectified while a plaintiff with similar injuries whose claim was dealt with by a jury should be denied such a remedy?
17. Mr. Buckley was twenty one years of age at the time he sustained his injury, namely, an un-displaced fracture to the left lateral malleolus – that is a bone at the bottom of the leg where it joins the ankle. He also sustained a mild strain to the ankle itself. A plaster of paris cast was applied to the lower leg for a period of six weeks during which period Mr. Buckley was on crutches. Thereafter he had a number of sessions of physiotherapy. Mr. Buckley told the Court that for approximately two years post injury he experienced pain in his ankle if required to walk any significant distance. Travelling over uneven ground produced similar symptoms. His ankle was somewhat stiff first thing in the morning and occasionally he had pain at night time. Two years post injury he was still taking anti-inflammatory medication on an intermittent basis and had still not regained full use of his ankle. While he was still complaining of some modest symptoms as of the date of trial there was little by way of evidence to suggest that he was in any way curtailed in terms of his work or leisure activities.
18. Mr. Owen Barry and Mr. Brian Hurson, the orthopaedic surgeons who gave evidence on behalf of the parties, were in substantial agreement as to the nature and extent of Mr. Buckley’s injuries and as to his prognosis. They accepted that his symptoms were consistent with the injury which he had sustained. On examination two years post accident he was found to have a two centimetre muscle wasting of the left calf and this, Mr. Barry considered, was consistent with the patient’s ongoing complaints. However, an MRI scan, carried out at that time was essentially normal thus allowing Mr. Barry to conclude that with further physiotherapy the plaintiff’s outlook was good.
19. The starting point for this Court’s assessment as to whether the award made by the jury should be considered so unsatisfactory such that it should be considered to amount to an error in law must be its own view as to the value of the plaintiff’s claim. In this regard s. 22 of the Civil Liability and Courts Act 2004 is of relevance insofar as it requires the Court, when assessing damages in a personal injuries action, to have regard to the guidelines contained in the Book of Quantum.
20. While the Book of Quantum suggests parameters of €15,400 – €34,600 for a fracture to the lower leg which has substantially healed, this 2004 publication is undoubtedly out of date. It is common case that awards, particularly at the upper end of the personal injuries spectrum, regularly exceed those advised in the Book of Quantum by as much as 50%. However, it does not necessarily follow that all of these indicative values, particularly those in respect of lesser injuries, should be considered to be 50% below what might be regarded as a fair or just award.
21. In my view, Mr. Buckley’s injuries must be considered to be relatively modest when assessed in the context of the entire range of personal injuries actions which come before the courts. Thus the compensation to which he is entitled must reflect that fact insofar as damages must not only be proportionate to the injury sustained but must be proportionate to those awards made in respect of other more serious or more minor injuries.
22. It is also undoubtedly the case that Mr. Buckley’s injury when viewed within the spectrum of potential ankle injuries is not one which could be described as significant or severe. He did not require any operative intervention or any period as an in-patient in hospital. The fracture was un-displaced and his risk of arthritis negligible. Mr. Buckley had made a reasonable recovery two years post injury albeit that it was anticipated he would have symptoms for some further period during which he would likely undertake some further physiotherapy. That being so, while his symptoms were not particularly debilitating, their duration had to be viewed as extending to a period of perhaps three years.
23. Notwithstanding my conclusion that Mr. Buckley’s injuries were relatively modest, I am quite satisfied that the award made by the jury was not one which satisfies the test of proportionality having regard to the nature of the injury, the extent of the treatment required and the duration of his symptoms. Having regard to the evidence concerning the plaintiff’s injuries and the legal principles to which I have already referred, I am satisfied that the award to which the plaintiff was entitled was in the order of €35,000. Hence the award made in favour of the plaintiff in the High Court must be considered to amount to an error of law on the part of the jury. That being so I would propose that the same be set aside in favour of an award of €35,000.
Contributory negligence
24. It is well established law that an appellate court should not interfere with an apportionment of fault made by a judge or jury unless satisfied that such apportionment was grossly disproportionate having regard to the evidence, (see Snell v. Haughton [1971] I.R. 305).
25. The difficulty for an appellate court when asked to interfere with a finding of contributory negligence made by a jury is that it has no way of knowing the evidence which the it relied upon to reach the apportionment which it did, in this case an attribution of 69% to Mr. Buckley. Further, it is impossible to discern whether the jury correctly approached its task by reference to its assessment of Mr. Buckley’s blameworthiness for his injuries. By way of contrast, in a personal injuries action tried before a judge alone, the Court will know from the judgment of the High Court judge precisely what evidence he or she relied upon to support their conclusion and will also be in a position to determine whether they correctly made their assessment, as required, based upon the moral blameworthiness of the parties for their respective causative contributions to the injury concerned.
26. Another difficulty for the appellate court in the present case is that it does not know how or when the jury concluded Mr. Buckley sustained his ankle injury. It is clear that they rejected the evidence adduced on his behalf to the effect that it was likely caused by Gda. Mulligan deliberately kneeling upon his ankle when he was lying down on the ground. It may have occurred in the course of the plaintiff’s fall to the ground or while on the ground after the fall.
27. As to the circumstances of the fall, the transcript reveals that Gda. Mulligan stated that he tripped and fell to the ground having lost his balance. This happened, he said, because Mr. Buckley had brought his arms up into the air in an effort to resist arrest. He stated that whilst locked together they turned and as they did so they lost balance due to Mr. Buckley’s resistance and the fact that he had to lean against him to bring his arms under control.
28. Regardless of whether this injury was sustained in the course of the fall or during the period while he was on the ground following the fall, it is difficult to find any evidence which would justify a finding on the part of the jury that Mr. Buckley was 69% blameworthy for his causative contribution to his ankle injury. While he resisted arrest thus contributing to the fall he did not do so in any type of aggressive fashion. He did no more than raise his arms up into the air to avoid being handcuffed. He did not, for example, swing a punch at Gda. Mulligan or take some other aggressive action likely to result in an engagement wherein injury might be sustained. Also, while he clearly had consumed excessive alcohol it is difficult to know from the evidence the extent to which that contributed to the fall in light of Gda. Mulligan’s evidence that he leant in on top of Mr. Buckley because he was resisting being handcuffed.
29. I am satisfied that the jury could only have come to the apportionment of liability which it did by mistakenly taking into account all of Mr. Buckley’s adverse conduct on the night in question rather than only that conduct which could be implicated as being causative of his injury. If I am correct in this assumption, the jury adopted an incorrect and impermissible approach to its consideration of the issue of contributory negligence with the result that it made a finding which was grossly excessive in all of the circumstances.
30. Given that the jury found the defendants guilty of negligence which was causative of Mr. Buckley’s injuries but in circumstances where the causative connection between his conduct and his injury cannot clearly be established from the evidence, it appears to me that this Court should properly apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961which provides that if it is not possible to establish different degrees of fault, liability should be apportioned equally. In light of my earlier conclusion that the plaintiff should be awarded a sum of €35,000 in respect of his general damages, having regard to his contributory negligence that award must now abate to a figure of €17,500.
The costs issue
31. The outcome of the plaintiff’s appeal in respect of the jury’s award of general damages and its finding as to the extent of his of contributory negligence has a significant impact on his appeal against the order for costs made by the trial judge and the submission made in that regard. It will be remembered that the plaintiff was awarded Circuit Court costs on the basis of a two day hearing, the same to be taxed in default of agreement. As no argument was advanced to challenge the two day limit placed on the costs order, I will confine my consideration of this issue to the statutory provisions that apply to an award of damages in the amount of €17,500.
32. The effect of s. 94 of the 1924 Act, notwithstanding its subsequent amendment by the Courts of Justice Act 1928, the Courts Act 1971 and the Courts Act 1988, is that Mr. Buckley was entitled to bring his claims for damages for false imprisonment, wrongful arrest, assault and battery in the High Court and to have them decided by a judge sitting with a jury.
33. Regardless of the fact that jury trials were abolished for personal injuries actions by s.1 of the Courts Act 1988, Mr. Buckley retained the right to bring his negligence action alongside his other claims because that cause of action arose out of the same set of facts as those material to such claims.
34. The relevant statutory provisions are as follows:-
Courts Act 1988
1.(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 , or any other provision made by or under statute, or any rule of law, an action in the High Court-
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(3) Subsection (1) of this section does not apply in relation to-
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.
35. While Mr. Buckley was entitled to seek to have his claim tried before a jury, he was equally entitled to bring his claims before a judge sitting alone in the High Court or before a court of lesser jurisdiction. Section 94 does no more than state that there is nothing to prejudice a plaintiff’s right to seek to have a jury determine various classes of claims, including those in respect of assault and false imprisonment.
36. In respect of costs payable in an action where a plaintiff has a right to a jury trial in a civil case, s. 94 of the 1924 Act, provides as follows:-
“…[S]ubject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”
37. Having elected to seek a jury trial I am quite satisfied that this is the section to which the High Court judge was bound to have regard when deciding what order to make in respect of the costs of the proceedings.
38. Section 94 of the 1924 Act was, however, amended by the provisions of the 1981 Act. In turn, s. 17 of the 1981 Act was substituted by s. 14 of the Courts Act 1991) so that it now provides as follows:-
Section 17
(1) When an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsection (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.
(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds IR£25,000 but does not exceed IR£30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.
(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds IR£5,000 but does not exceed IR£15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.
39. It is clear that s. 17(1) only applies if the plaintiff’s claim does not, because of the amount of his award, fall to be considered under either subs. (2) or (3) of that section. In the present case the award which ought properly have been made by the jury was €17,500, the same having an Irish Pound equivalent of £13,772. That being so it is unnecessary to consider the effect of s. 17(1) on the award of damages erroneously made by the jury. The plaintiff’s award of damages falls within the parameters advised in s. 17(3). Thus his High Court costs must be determined in the manner therein specified. He is entitled to the lesser of the following sums, namely:-
(i) €17,5000 that being the amount of his award of damages, or
(ii) such sum as may be agreed, or taxed in default of agreement, on the basis that the claim was commenced and pursued in the Circuit Court over a two day period.
Conclusion
40. For the reasons advanced earlier in this judgment, I am satisfied that the award of the general damages made by the jury in this case was not just or proportianate having regard to the evidence concerning the plaintiff’s injuries and that it should be set aside in favour of an award of damages in the sum of €35,000. I am also satisfied that the jury erred in its approach to the issue of contributory negligence such that this court should apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961,with the effect that liability should be apportioned equally between the parties. In such circumstances the plaintiff is entitled to an award of €17,500: an award which is governed by the provisions of s. 17(3) of the Courts Act 1981 (as substituted by s.14 of the Courts Act 1991). Accordingly I would allow the appeal and propose an award of general damages in favour of the plaintiff in the sum of €17,500, with costs to follow in the lesser of the two amounts specified in that section upon the basis of a two day hearing as decided by the trial judge and from which decision no appeal was pursued.
Bowes v McSherry
[2019] IEHC 115 (01 March 2019)
O’Hanlon J.
Status:
DEFENDANT
JUDGMENT of Ms. Justice Bronagh O’Hanlon delivered on the 1st day of March, 2019
1. The plaintiff is the former partner of the defendant.
2. The defendant is a gentleman and was convicted of a Sec. 3 assault on the plaintiff. He served 22 months of a three and half year prison sentence with the final twelve months suspended. He entered a drug treatment centre for seven months on his release from prison. He now attends Move, an organisation to assist men with violent tendencies and is half way through a programme with that organisation. The assault, the subject matter of these proceedings, occurred on 20th December, 2015 on the public roadway in Clondalkin in the County of the City of Dublin and the defendant admits the said assault which have given rise to the plaintiff’s claim against him for damages for personal injury loss and damage as a result of same. This case is listed for hearing for the assessment of damages.
3. Garda Cian Langan gave evidence to this Court confirming the said assault on the 20th December, 2015 and referring to photographic evidence in the form of thirteen original photographs which showed extensive damage to the eyes of the plaintiff and to her face and confirmed boot marks on her neck and face. In addition, the garda showed video evidence to the court which lasted for one and half minutes of a portion of the said assault. The garda witnessed the aftermath of this assault and confirmed the injuries as described by the plaintiff and referred to in the medical reports.
4. Garda Langan confirmed that the plaintiff was taken in by her neighbour and that the defendant fled the scene but was later arrested and charged and pleaded not guilty at first but then changed his plea. The garda confirmed that the photographs shown to the court were taken between one and half to two hours following this assault and he confirmed that the defendant arrived at the scene of the incident at 4:37:27am and remained there in wait at the plaintiff’s residence until the taxi in which the plaintiff was a passenger arrived at the scene at 5:24:24am that morning. The garda witness gave evidence that the assault lasted for longer than the one and half minutes shown on the video clip and he confirmed the time of arrest of the defendant as 7:55am. The plaintiff in these proceedings gave evidence to object to bail and after a return for trial on a s. 3 assault, admissions were made. The garda accepted that the plaintiff in her initial statement in the hospital had indicated that the defendant had mental health and alcohol abuse difficulties.
The plaintiff’s evidence
5. The plaintiff described how she does not go out very often but this was a Christmas gym night and when she arrived back at her home at 5:24:24am later in a taxi with a female friend and others and that the assault began when the defendant jumped on this taxi breaking the windscreen with his fists. This caused the taxi driver, who is described by the plaintiff as a friend of the defendant, to run away. The assault by the Defendant on the Plaintiff involved her being repeatedly punched and kicked, being dragged along the ground while the assaults continued including punching and kicking. She was rendered unconscious by the first punches and regained consciousness during the course of the attack only to be rendered unconscious a second time by further blows. The plaintiff described her humiliation and distress in that locals witnessed this attack. The plaintiff confirmed the evidence given by Garda Langan and the continuing difficulties from which she suffers as a result of these injuries. The multiple fractures to her skull and face required reconstructive surgery of the face. She described a situation where it is impossible for her to fully close her lips due to damage in the upper lip and she complains of the feeling that her face appears deformed. A metal plate had to be inserted through the mouth in order to align the facial bones subsequent to this assault. Psychological sequelae, as borne out by the medical evidence, offered on her behalf, shows the plaintiff to have symptoms of post-traumatic stress disorder and the report proffered by a Psychiatrist on behalf of the Defendant gives a diagnosis of her psychological difficulties described as arising from chronic anxiety disorder and indicates a mixed picture. The plaintiff continues to have significant nightmares regarding the incident and is fearful both for her own safety and that of her children.
6. An application was made on behalf of the plaintiff to the Personal Injuries Assessment Board and authorisation granted to bring these proceedings pursuant to s. 17 of the Personal Injuries Assessment Board Act, 2003 and 2007, on foot of authorisation No. PLO52720161775 dated 8th September, 2016.
7. In describing this attack, the plaintiff described being head-butted and described the defendant’s actions as if he were hunting. In order to protect herself while she was trying to get a neighbour to let her into the neighbour’s house, the plaintiff put her head under a car and when the neighbour opened the door she crawled into the house. The plaintiff believes that she suffered upwards of twenty kicks during this assault. The plaintiff was initially brought to Tallaght Hospital, discharged herself because of the time of the year and because of the fact that she had young children at home. The plaintiff gave credible evidence to this Court which the court accepts.
8. She was referred to St. James’ Hospital where she was treated by Mr. O’Ceallaigh, Consultant Maxillofacial Surgeon who carried out corrective facial surgery. The plaintiff described how he was not able to align the right side of the plate under the nose and that her lip is not attached to the gum anymore and that she now has to endure a permanent plate which had to be inserted to treat the fractures to her cheek bones. She notes that her mouth moves at a different rate and she has permanent numbness with her face swelling on the right side in the nasal cavity causing the face to be bigger on that side than on the left hand side.
9. The report of Dr. Jason Carty, Consultant in emergency medicine in Tallaght Hospital in his report of 29th May, 2018 refers to the corrective surgery which involved an open fixation of her right sided facial fracture which involved placement of a secured metal plate to the broken bones to preserve alignment. This report confirms the difficulties the plaintiff described in her evidence. The said report describes the plaintiff as having eye lacerations cleaned and sutured and that she discharged herself early from that hospital on 24th December, 2015. He noted her physical difficulties but also ongoing difficulties with trust issues and sleep and memory difficulties. He described her as having moderate mental health difficulties and described her injuries as being consistent with the incident which had occurred. Thirty-two months post-accident, he believed that she had reached the ceiling of recovery concerning her facial injuries and was going to have ongoing paraesthesia and that the swelling would not be expected to resolve further. His report describes the plaintiff as suffering grievous and life changing injury and that she was doing well to manage to rear her children but that even with the best support what happened her was going to affect her for the rest of her life.
10. Dr. Guy Molyneux, Consultant Psychiatrist, St. Vincent’s Hospital, Fairview, Dublin 3 examined the plaintiff and in his report dated 11th October, 2018 notes her account of the abusive relationship which the plaintiff had with the defendant in that she described having been stalked by him and he noted her account that some months previously she had received abusive texts and described the defendant as often driving by her house. On her account, in 2015, so that her children could have some relationship with the defendant, the plaintiff had recommenced communication with him but unfortunately the defendant interpreted this act as an attempt by her to rekindle a romantic relationship with him. This evidence was not contradicted.
11. This report evidences that three years after the assault the plaintiff had suffered and continues to suffer a significant psychological effect, she is on high alert and fearful of a return by the defendant to assault her further. She is described as severely damaged and vulnerable. She has difficulties with sleep and has nightmares and is unable to develop a new relationship. Dr. Molyneux assessed the plaintiff as having thought processes which indicated a resilient person with lots of helpful cognitions such as not wanting to be seen as being vulnerable and not wanting this event to have ruined her life, but he noted that she had experienced a shattering ordeal which has affected her self-confidence and self-esteem. In his opinion and prognosis this report evidences the fact that the plaintiff sustained a horrific assault leaving her with severe physical and life changing injuries as well as psychological injuries. He noted fear, anxiety, low self-esteem and vulnerability as well as her concern for her future and a decreased sense of enjoyment. The best fit diagnosis in his view was found to be post-traumatic stress disorder DSM-5. This doctor noted that the plaintiff had not had the time or the finances to receive any meaningful psychotherapy to help her process and cope in the aftermath of the assault. This report recommends that the plaintiff speak to her GP to seek a referral for cognitive behavioural therapy and that that the person chosen to give this therapy ought to be someone experienced in treating post-traumatic stress disorder. This report also evidenced his view that such treatment would cost between €5,000 to €10,000.
12. The defendant’s had Dr. Michael Mulcahy, Consultant Psychiatrist examine the plaintiff in January, 2019 and his report is dated 22nd January, 2019. This report describes the plaintiff as having residual problems with her face with some areas of anaesthesia and cosmetic concerns. He accepts that she is a person under great stress. Notwithstanding that, he found that the plaintiff projected an image of a competent person although this report noted the plaintiff’s lack of confidence in the civil authorities in relation to her appeals for assistance and notes that the plaintiff presents many features of post-traumatic stress disorder although his preference would be to describe her difficulties as that of a chronic anxiety disorder and that sleep problems and hypervigilance are common in both conditions and that clinically she presents a mixed picture.
13. Points raised by the defence confirmed that the plaintiff accepted that in the immediate aftermath of this assault she scored 15 out of 15 on the Glasgow test and that there was no evidence of cognitive loss following this incident. She confirmed visits to her GP every two months presently. The plaintiff confirmed that she returned to work three months after this incident and was paid while she was out sick for that period of time. She did agree that her mood was found to be normal objectively and subjectively. The plaintiff agreed that she was referenced in various broadcasts and newspaper articles on the topic of domestic violence and she confirmed that she had good intentions in that and that she saw herself as a survivor of domestic abuse, that she did not feel ready to go for counselling at this time. The plaintiff also accepted that she had been giving a verbal warning at work because of the amount of time she had to take off in relation to legal matters and in relation to the criminal trial and that she had to take special leave without pay. The plaintiff described being on Mirtazapine in 2015/2016 and at present.
14. The defendant described his own conduct as disgraceful and apologised to the plaintiff and to his children. He agreed that he had left his post when a member of the defence forces and that he was given an option to leave the army and he had done so and had begun his own business. He agreed that he had paid maintenance for the children in the past but was not paying same at present. He accepted fully that he had broken nearly every bone in the plaintiff’s face and that he had kicked her and that he had taken his closed fist to her face and he accepted that he had carried out the acts as seen on the video.
15. In his defence the defendant noted that he had spent seven months in the Coolmine addiction centre and had been released early from prison to take part in that course which is one for alcoholics and that he attends Alcoholics Anonymous three to four times a week and he has taken a course with Move and that he has completed eight or nine weeks of a six-month course with that organisation. The defendant complained that that because he has been in the eye of the media that no one will employ him. He confirmed that he owns 7 Fairview Cavan which is an apartment, but that he had transferred this to his mother on the 19th September, 2017 and he agreed that the within proceedings had begun on the 7th January, 2013. The defendant agreed that he also owned a property known as Belfry, Churchview Cavan, Co. Cavan.
The law
16. In Conway v. Irish National Teachers Organisation [1991] 2. I.R. 305 Finlay C.J. analysed the relevant principles in respect of damages:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are: —
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. [ Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 316-317).
Conclusions
17. This Court finds the plaintiff’s account of this incident to be factually correct. This is an extremely serious case in which the court is asked to assess damages for personal injuries loss and damage suffered by the plaintiff as a result of a significant admitted assault by the defendant upon her. In so doing there is no doubt and no issue but that the assault by the defendant upon the plaintiff caused the difficulties she has experienced which are ongoing and permanent. He fully admits same and apologises for same. The court notes that the admissions and apology did not come immediately. This Court accepts the evidence of Garda Langan. This Court notes that the medical reports bear out the evidence adduced on behalf of the plaintiff. This Court finds that beyond any doubt, the defendant’s assault caused the significant and permanent injuries suffered by the plaintiff.
18. In assessing damages, the court cannot take into account extraneous matters such as the fact that the defendant is not paying money to the plaintiff in respect of the maintenance of his two children who live with the plaintiff. Separate issues concerning the children are dealt with in another forum. The court notes that the defendant was tried, convicted and sentenced in a criminal court in relation to this assault. It is not the function of this civil court to punish the defendant rather to assess the appropriate measure of damages arising from this assault. Taking the foregoing into account the court has decided to deal with this matter by way of ordinary compensatory damages to cover the plaintiff’s physical injuries which were extensive and have ongoing and permanent effect, her mental distress, anxiety, deprivation of convenience and of the other harmful effects of this wrongful act which have affected her self-esteem, her trust in others and have caused the plaintiff post-traumatic stress disorder symptoms as described in the medical reports coupled with overlapping symptoms of chronic anxiety.
19. The court notes the steps taken by the defendant to rehabilitate himself and this fact is noted and welcomed but it does not reduce a quantum of damages which the plaintiff is entitled to by way of ordinary compensatory damages.
20. The court also notes that the plaintiff has not had cognitive behavioural therapy as yet nor has she engaged to any degree with services which would be available through her employment working in a hospital. She cited her reasons as including lack of time because she was rearing the children on her own but also her present state of mind. The court takes the view that she must as a matter of urgency apply some of the monies which the court is now awarding to her to address these difficulties and the court would envisage her as having an obligation to herself to do so.
21. In all the circumstances given the extreme effect on her face and daily discomfort of the long term and permanent aspects of her facial injuries the appropriate amount in general damages is €150,000 this includes consideration and assessment of the effect of this assault on her and the long term psychological consequences of the injury she has received. With proper treatment in accordance with the medical evidence, it is possible for the plaintiff to achieve considerable health improvement in the medium term in respect of this aspect of her injuries. The award therefore is for in the sum of €150,000 in respect of general damages, to cover pain and suffering to date and into the future, regarding her physical and permanent injuries and to include a measure of damages to compensate her for her mental health difficulties and to enable her to access assistance for same.
Brett v Mullarkey
Court of Common Pleas.
23 April 1873
[1873] 7 I.L.T.R 91
K
Lawson J.
[The law as to pews in the established church can have nothing to do with this case].
It must be assumed that White came to the pew by legal means, i.e., by deed; both parties are estopped from denying his right. This was a pew which could hold several persons, and White first gave the license to one person and then to another. The prior license to the defendant was revocable at any time, and if there was any effect in the subsequent license to the plaintiff, it did revoke it. The defendant could have no right to the seat, for the possession of the pew is an incorporeal right, and the right to come and remain for a certain time on the land of another can only be granted by deed; and a parol license to do so, though money be paid for it, is revocable at any time, and without paying back the money, Wood v. Leadbitter 13 Wells & W. 838. Both parties were in the same position; but it is a very different thing to come in oneself and to try to exclude others. The onus lies on the person who committed the assault to prove that he had some legal right. Mullarkey, it is said on the other side, obtained possession. But possession means something more that physical prehension. If another man has as good or a better right, physical prehension is not enough against him, Jones v. Chapman 2 Exch. 803.
Morris, J.
[In that case, which is a case of land, there could be no physical possession at all, so as to exclude the rest of the world. But if a man found a thing in the street and it did not belong to him, certainly he has a right to defend it against another person who wants to take it from him.]
The right which the defendant founds his right upon is a right to the whole pew. At the time of the alleged assault, the defendant says that he, the defendant, was in possession of the whole pew, that is a plea alleging a right to the possession of the whole seat. The defendant required the plaintiff to leave, that sets aside the idea of his only claiming his own seat. This is not a right to a thing which can be taken physical possession of like a coin or a stick, but it is a right to exclude the whole of the rest of the world. It is a matter of public policy that a question of right should not be decided by force.
[Morris, J.—If a man takes possession of an empty house, and another person comes in and tries to exclude him, and neither of them has a better title than the other, is there any case to show that the party in possession may not defend that possession? That is a stronger. case than Jones v. Chapman, 2 Exch. 303, for there one party had a title.]
The defendant is obliged to prove his right. Was the defendant really in possession of the pew? He was not in possession of that part of the seat on which he was not himself sitting.
Keogh, J.
We are of opinion that the questions left by the Chief Justice to the jury were proper. The evidence was all of one way. The parties had no right on either side. The possession of the seat was enjoyed by the defendant at the time in question. As to the complaint which was made of disturbing the church, it was created by the plaintiff, who came to put the defendant out of possession. The case of Catteris v. Cowper, 4 Taunt. 547, applies strongly to every point in this case. The defendant was in visible occupation of the seat; he was sitting at the door and put his arm up to stop the plaintiff coming in, and the plaintiff then proceeded to force his way in. We see no ground to disturb the verdict.
McCann v Mannion
Circuit Court.
14 July 1932
[1932] 66 I.L.T.R 161
Judge, Moonan
Judge Moonan
In a case similar to this just before Easter I spoke about how important it is that teachers should exercise self-discipline and complete self-restraint, and should not give any display of quick temper before their pupils. Teachers must be protected against any unjust attacks upon them concerning what they do in maintaining discipline. A teacher is justified in inflicting proper corporal punishment when it is necessary. The person most competent to estimate the conduct which deserves such punishment is the teacher himself, and it would require proof of malice or of something approaching to malice to induce me to interfere with his discretion. If he believes that a pupil deserves corporal punishment, he is entitled to inflict it, and I think it would be fatal to the teachers’ profession and fatal to the discipline if every parent of a child who is punished were allowed to rush into the Courts to recover damages against the teacher, and the Courts were to busy themselves in deciding whether this child or that child deserved to be slapped. Only the teacher can be the judge of that. But the punishment must be a proper punishment and must not be attended with risk, and that raises the question to be decided in the present case. From the evidence in this case I am perfectly satisfied that the defendant did see some justification in the plaintiff’s conduct for the infliction of corporal punishment, and that he did inflict punishment. I think myself there was something in her conduct to justify his inflicting corporal punishment. But I adhere to what I have laid down in McGee’s case, that there is a recognised safe way to inflict corporal punishment, and that any teacher who goes beyond it is taking a very serious risk, and if any injury ensues, such child is entitled to compensation for such injury. The defendant admittedly struck the plaintiff on the cheek. He committed a technical assault in doing so. Now, what was the extent of the injury? I will certainly not allow every fond parent of a disobedient child which has been punished to come into Court and get damages, but I cannot hold that this was a case concocted by the McCanns to extract damages from the teacher. There has been exaggeration of the injuries received by the plaintiff. I think that the defendant, when properly inflicting corporal punishment and while doing so without any undue temper or violence, was guilty of a technical assault in beating the child with his open hand on the ear, and that the child suffered somewhat as a result of that technical assault. The injury caused was of a very slight description. There has been nothing more than the mere technical assault. Decree for £2.
Buckley -v- Mullignan & Ors
[2016] IECA 264 (04 October 2016)
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
Judgment of Ms. Justice Irvine delivered on the 4th day of October 2016
1. This is the appeal of the plaintiff, Mr. Liam Buckley, against the order of the High Court (De Valera J.) dated 18th December, 2013. That order was made following a six day hearing before a jury of his claim for damages for wrongful arrest, false imprisonment, assault and battery, and a further claim for damages for personal injuries allegedly sustained as a result of negligence on the part of the defendants in and about his arrest on the 24th September, 2011, at George’s Street, Drogheda.
2. It is common case that Mr. Buckley failed in his claims for wrongful arrest, false imprisonment, assault and battery. He was, however, successful in his claim for negligence albeit that the jury found him guilty of contributory negligence to the extent of 69%. The jury assessed his entitlement to damages in the sum of €16,875 with the effect that, having regard to his contributory negligence, he obtained an order for judgment in the sum of €5,231.25. As to costs, the High Court judge awarded Mr. Buckley his costs on the District Court scale limited to a two day hearing, when taxed and ascertained.
The appeal
3. Whilst a relatively extensive notice of appeal was filed on Mr. Buckley’s behalf, by the time the appeal came before this Court his grounds of appeal had been reduced to three in number. These may be summarised as follows:-
(i) That the award of general damages in the sum of €16,875 was inadequate having regard to his injuries and should be set aside as an error of law;
(ii) that the jury’s finding of 69% contributory negligence was grossly disproportionate having regard to the evidence; and
(iii) that the trial judge erred in law in making the costs order which he did having regard to the relevant statutory provisions.
Submissions of the parties
4. Mr. Burns, S.C., on Mr. Buckley’s behalf, submitted that a gross award of €16,875 was not proportionate or just having regard to the severity of his client’s injuries. He referred the Court to Mr. Buckley’s own evidence and to that given by the orthopaedic surgeons retained by the respective parties. They were agreed as to the extent of his injuries and as to his likely prognosis. He had sustained an un-displaced fracture of the malleolus and his left leg was in a cast for six weeks. He had then required some physiotherapy and remained somewhat symptomatic for a period of over two years.
5. Mr. Burns relied upon the Book of Quantum, published in 2004, to demonstrate the error of the jury’s award. In respect of fractures to the lower leg which were substantially recovered, the parameters advised were €15,400 – €34,600. Those values were significantly out of date and were, he submitted, approximately 50% below what a judge sitting alone would be expected to award for the equivalent injury. He relied upon the decision of this Court (Edwards J.) in Cronin v. Stevenson and Another [2016] IECA 186 in support of his submission that the parameters for an award for a fractured ankle at the time of the hearing ought properly to have been within the €25,125 – €52,950 range. Having regard to the severity of Mr. Buckley’s symptoms, his award should have been in the mid to upper end of this range of values.
6. As to contributory negligence, Mr. Burns accepted that he bore the onus of demonstrating that the jury had made a gross error when it apportioned liability as it did. He accepted that there was evidence to support a finding of contributory negligence on the part of his client, principally by reason of his alcohol consumption. As to the extent to which such consumption likely contributed to his injuries, counsel drew the Court’s attention to the fact that his client had been considered sufficiently sober to receive an adult caution thirty minutes after his arrival at the garda station. The jury’s finding should have been no more than 30% – 50% given that Mr. Buckley’s liability had to be assessed by reference to his blameworthiness for the injury sustained. Mr. Buckley had never previously been arrested and had not been involved in any disturbance on the night in question. His injury was sustained as a result of the fact that, in the course of his arrest, he and Gda. Mulligan had fallen to the ground. That fall occurred because they lost balance. He accepted that his client’s resistance to arrest would have been a contributory factor but submitted that Gda. Mulligan also contributed to the fall insofar as he had lent in over Mr. Buckley applying weight to him in the course of a turning manoeuvre. As to the extent of Mr. Buckley’s resistance, Mr. Burns relied upon his custody record which recorded the “circumstances of the offence” and which made no reference to his client having resisted arrest.
7. As to costs, Mr. Burns submitted that s. 94 of the Courts of Justice Act 1924 (the “1924 Act”) applied and that, in the absence of special circumstances, having succeeded in his action Mr. Buckley should have been awarded his costs on the High Court’s scale. Whatever about awarding him costs on the Circuit Court scale there were no circumstances to justify the limitations that had been imposed by the High Court judge particularly having regard to the fact that the award was low due to the manner in which the jury had apportioned liability. Mr. Buckley was entitled to pursue his action for wrongful arrest, false imprisonment, assault and battery before a jury and likewise his claim for damages for negligence, given that that cause of action arose out of the same set of facts. He could only have a jury trial in the High Court. Regardless of the fact that he had lost his claims for wrongful arrest, false imprisonment, assault and battery, those proceedings had been reasonably pursued and he had succeeded in his claim for damages for negligence. Thus, counsel submitted, Mr. Buckley’s entitlement to costs fell to be considered in the context of an action properly brought in the High Court.
Respondents’ submissions
8. Mr. Callanan, S.C., on the defendants’ behalf, accepted that the award made by the jury was somewhat frugal. However, it was not disproportionate to the point that it should be considered to amount to an error of law. The award came within the lower end of the range advised in the Book of Quantum. He submitted that an appellate court should afford a jury somewhat greater latitude than it would do a judge sitting alone when considering whether the award ought to be set aside on the grounds that it lacked proportionality.
9. As to the jury’s apportionment of liability, Mr. Callanan submitted that the plaintiff had not established that it had made a gross error as was required to displace its finding of contributory negligence. There was evidence to support a substantial finding of contributory negligence. He relied upon Mr. Buckley’s consumption of alcohol, the fact that he had resisted arrest and that he had been generally uncooperative.
10. As to the award of costs made by the High Court judge, Mr. Callanan argued that s. 17 of the Courts Act 1981 (the “1981 Act”), as amended, applied. The plaintiff had lost all of his causes of action that had entitled him to a jury trial and had only succeeded in his claim for damages for negligence. The test advised by Mr. Burns was, he submitted, one which was incapable of application. The judge’s determination as to the proper order to be made in respect of costs should not be based upon a consideration of whether or not a claim which had been unsuccessful had been reasonably pursued.
Relevant legal principles
11. The relevant legal principles and authorities require that awards of damages should be:-
(i) Fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate with the scheme of awards for personal injuries generally.
12. Because the appellate court does not have the opportunity of hearing the evidence and assessing the credibility of witnesses, it should not readily interfere with an order made by a judge at first instance or indeed by a jury. That said, an appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded and that which the appellate court considers appropriate in respect of the injuries sustained. In Rossiter v. Dun Laoighaire / Rathdown County Council [2001] 3 IR 578 at 583 Fennelly J. described the role of an appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne (1876) I.R. 10 C.L. 160).”
13. It is generally accepted that an appellate court should not engage in what might be described as petty interference with an award of damages and should only interfere if satisfied that the error in the award is so serious as to render it unjust or lacking in proportionality having regard to the injuries sustained. The proportionality test is particularly appropriate insofar as it can readily be applied to any appeal regardless of whether the complaint made by the appellant is one of excessive generosity or undue parsimony on the part of the judge or jury.
The appeal concerning the quantum of damages
14. Having considered the submissions of the parties and the evidence given in the Court below I am quite satisfied that the award of the jury in this case was not fair to Mr. Buckley and was sufficiently disproportionate to his injuries that the same must be set aside as an error of law.
15. I reject the submission made by Mr. Callanan that an appellate court should be slower to interfere with an award made by a jury than one made by a judge sitting alone. While he may be correct when he asserts that a jury is more likely than a judge sitting alone to make an award which is either overly generous or excessively frugal, I can see no logical basis for his argument that the appellate court should overlook such excesses if authored by a jury but not if authored by a judge.
16. It has to be remembered that the principles to be applied by an appellate court when considering an appeal from an award of damages in respect of personal injuries have not changed in any substantial way from those which applied prior to the abolition of juries in 1988. Accordingly, it is difficult to see on what legal basis the Court could adopt the approach advanced by Mr. Callanan. Further, the role of the appellate court in a personal injuries claim is to correct any error in the award made by the Court of first instance which would otherwise perpetrate an injustice on one of the parties. How could it be just and fair that a plaintiff who received an insufficient award of damages from a judge sitting alone would be entitled to have that wrong rectified while a plaintiff with similar injuries whose claim was dealt with by a jury should be denied such a remedy?
17. Mr. Buckley was twenty one years of age at the time he sustained his injury, namely, an un-displaced fracture to the left lateral malleolus – that is a bone at the bottom of the leg where it joins the ankle. He also sustained a mild strain to the ankle itself. A plaster of paris cast was applied to the lower leg for a period of six weeks during which period Mr. Buckley was on crutches. Thereafter he had a number of sessions of physiotherapy. Mr. Buckley told the Court that for approximately two years post injury he experienced pain in his ankle if required to walk any significant distance. Travelling over uneven ground produced similar symptoms. His ankle was somewhat stiff first thing in the morning and occasionally he had pain at night time. Two years post injury he was still taking anti-inflammatory medication on an intermittent basis and had still not regained full use of his ankle. While he was still complaining of some modest symptoms as of the date of trial there was little by way of evidence to suggest that he was in any way curtailed in terms of his work or leisure activities.
18. Mr. Owen Barry and Mr. Brian Hurson, the orthopaedic surgeons who gave evidence on behalf of the parties, were in substantial agreement as to the nature and extent of Mr. Buckley’s injuries and as to his prognosis. They accepted that his symptoms were consistent with the injury which he had sustained. On examination two years post accident he was found to have a two centimetre muscle wasting of the left calf and this, Mr. Barry considered, was consistent with the patient’s ongoing complaints. However, an MRI scan, carried out at that time was essentially normal thus allowing Mr. Barry to conclude that with further physiotherapy the plaintiff’s outlook was good.
19. The starting point for this Court’s assessment as to whether the award made by the jury should be considered so unsatisfactory such that it should be considered to amount to an error in law must be its own view as to the value of the plaintiff’s claim. In this regard s. 22 of the Civil Liability and Courts Act 2004 is of relevance insofar as it requires the Court, when assessing damages in a personal injuries action, to have regard to the guidelines contained in the Book of Quantum.
20. While the Book of Quantum suggests parameters of €15,400 – €34,600 for a fracture to the lower leg which has substantially healed, this 2004 publication is undoubtedly out of date. It is common case that awards, particularly at the upper end of the personal injuries spectrum, regularly exceed those advised in the Book of Quantum by as much as 50%. However, it does not necessarily follow that all of these indicative values, particularly those in respect of lesser injuries, should be considered to be 50% below what might be regarded as a fair or just award.
21. In my view, Mr. Buckley’s injuries must be considered to be relatively modest when assessed in the context of the entire range of personal injuries actions which come before the courts. Thus the compensation to which he is entitled must reflect that fact insofar as damages must not only be proportionate to the injury sustained but must be proportionate to those awards made in respect of other more serious or more minor injuries.
22. It is also undoubtedly the case that Mr. Buckley’s injury when viewed within the spectrum of potential ankle injuries is not one which could be described as significant or severe. He did not require any operative intervention or any period as an in-patient in hospital. The fracture was un-displaced and his risk of arthritis negligible. Mr. Buckley had made a reasonable recovery two years post injury albeit that it was anticipated he would have symptoms for some further period during which he would likely undertake some further physiotherapy. That being so, while his symptoms were not particularly debilitating, their duration had to be viewed as extending to a period of perhaps three years.
23. Notwithstanding my conclusion that Mr. Buckley’s injuries were relatively modest, I am quite satisfied that the award made by the jury was not one which satisfies the test of proportionality having regard to the nature of the injury, the extent of the treatment required and the duration of his symptoms. Having regard to the evidence concerning the plaintiff’s injuries and the legal principles to which I have already referred, I am satisfied that the award to which the plaintiff was entitled was in the order of €35,000. Hence the award made in favour of the plaintiff in the High Court must be considered to amount to an error of law on the part of the jury. That being so I would propose that the same be set aside in favour of an award of €35,000.
Contributory negligence
24. It is well established law that an appellate court should not interfere with an apportionment of fault made by a judge or jury unless satisfied that such apportionment was grossly disproportionate having regard to the evidence, (see Snell v. Haughton [1971] I.R. 305).
25. The difficulty for an appellate court when asked to interfere with a finding of contributory negligence made by a jury is that it has no way of knowing the evidence which the it relied upon to reach the apportionment which it did, in this case an attribution of 69% to Mr. Buckley. Further, it is impossible to discern whether the jury correctly approached its task by reference to its assessment of Mr. Buckley’s blameworthiness for his injuries. By way of contrast, in a personal injuries action tried before a judge alone, the Court will know from the judgment of the High Court judge precisely what evidence he or she relied upon to support their conclusion and will also be in a position to determine whether they correctly made their assessment, as required, based upon the moral blameworthiness of the parties for their respective causative contributions to the injury concerned.
26. Another difficulty for the appellate court in the present case is that it does not know how or when the jury concluded Mr. Buckley sustained his ankle injury. It is clear that they rejected the evidence adduced on his behalf to the effect that it was likely caused by Gda. Mulligan deliberately kneeling upon his ankle when he was lying down on the ground. It may have occurred in the course of the plaintiff’s fall to the ground or while on the ground after the fall.
27. As to the circumstances of the fall, the transcript reveals that Gda. Mulligan stated that he tripped and fell to the ground having lost his balance. This happened, he said, because Mr. Buckley had brought his arms up into the air in an effort to resist arrest. He stated that whilst locked together they turned and as they did so they lost balance due to Mr. Buckley’s resistance and the fact that he had to lean against him to bring his arms under control.
28. Regardless of whether this injury was sustained in the course of the fall or during the period while he was on the ground following the fall, it is difficult to find any evidence which would justify a finding on the part of the jury that Mr. Buckley was 69% blameworthy for his causative contribution to his ankle injury. While he resisted arrest thus contributing to the fall he did not do so in any type of aggressive fashion. He did no more than raise his arms up into the air to avoid being handcuffed. He did not, for example, swing a punch at Gda. Mulligan or take some other aggressive action likely to result in an engagement wherein injury might be sustained. Also, while he clearly had consumed excessive alcohol it is difficult to know from the evidence the extent to which that contributed to the fall in light of Gda. Mulligan’s evidence that he leant in on top of Mr. Buckley because he was resisting being handcuffed.
29. I am satisfied that the jury could only have come to the apportionment of liability which it did by mistakenly taking into account all of Mr. Buckley’s adverse conduct on the night in question rather than only that conduct which could be implicated as being causative of his injury. If I am correct in this assumption, the jury adopted an incorrect and impermissible approach to its consideration of the issue of contributory negligence with the result that it made a finding which was grossly excessive in all of the circumstances.
30. Given that the jury found the defendants guilty of negligence which was causative of Mr. Buckley’s injuries but in circumstances where the causative connection between his conduct and his injury cannot clearly be established from the evidence, it appears to me that this Court should properly apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961which provides that if it is not possible to establish different degrees of fault, liability should be apportioned equally. In light of my earlier conclusion that the plaintiff should be awarded a sum of €35,000 in respect of his general damages, having regard to his contributory negligence that award must now abate to a figure of €17,500.
The costs issue
31. The outcome of the plaintiff’s appeal in respect of the jury’s award of general damages and its finding as to the extent of his of contributory negligence has a significant impact on his appeal against the order for costs made by the trial judge and the submission made in that regard. It will be remembered that the plaintiff was awarded Circuit Court costs on the basis of a two day hearing, the same to be taxed in default of agreement. As no argument was advanced to challenge the two day limit placed on the costs order, I will confine my consideration of this issue to the statutory provisions that apply to an award of damages in the amount of €17,500.
32. The effect of s. 94 of the 1924 Act, notwithstanding its subsequent amendment by the Courts of Justice Act 1928, the Courts Act 1971 and the Courts Act 1988, is that Mr. Buckley was entitled to bring his claims for damages for false imprisonment, wrongful arrest, assault and battery in the High Court and to have them decided by a judge sitting with a jury.
33. Regardless of the fact that jury trials were abolished for personal injuries actions by s.1 of the Courts Act 1988, Mr. Buckley retained the right to bring his negligence action alongside his other claims because that cause of action arose out of the same set of facts as those material to such claims.
34. The relevant statutory provisions are as follows:-
Courts Act 1988
1.(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 , or any other provision made by or under statute, or any rule of law, an action in the High Court-
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(3) Subsection (1) of this section does not apply in relation to-
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.
35. While Mr. Buckley was entitled to seek to have his claim tried before a jury, he was equally entitled to bring his claims before a judge sitting alone in the High Court or before a court of lesser jurisdiction. Section 94 does no more than state that there is nothing to prejudice a plaintiff’s right to seek to have a jury determine various classes of claims, including those in respect of assault and false imprisonment.
36. In respect of costs payable in an action where a plaintiff has a right to a jury trial in a civil case, s. 94 of the 1924 Act, provides as follows:-
“…[S]ubject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”
37. Having elected to seek a jury trial I am quite satisfied that this is the section to which the High Court judge was bound to have regard when deciding what order to make in respect of the costs of the proceedings.
38. Section 94 of the 1924 Act was, however, amended by the provisions of the 1981 Act. In turn, s. 17 of the 1981 Act was substituted by s. 14 of the Courts Act 1991) so that it now provides as follows:-
Section 17
(1) When an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsection (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.
(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds IR£25,000 but does not exceed IR£30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.
(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds IR£5,000 but does not exceed IR£15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.
39. It is clear that s. 17(1) only applies if the plaintiff’s claim does not, because of the amount of his award, fall to be considered under either subs. (2) or (3) of that section. In the present case the award which ought properly have been made by the jury was €17,500, the same having an Irish Pound equivalent of £13,772. That being so it is unnecessary to consider the effect of s. 17(1) on the award of damages erroneously made by the jury. The plaintiff’s award of damages falls within the parameters advised in s. 17(3). Thus his High Court costs must be determined in the manner therein specified. He is entitled to the lesser of the following sums, namely:-
(i) €17,5000 that being the amount of his award of damages, or
(ii) such sum as may be agreed, or taxed in default of agreement, on the basis that the claim was commenced and pursued in the Circuit Court over a two day period.
Conclusion
40. For the reasons advanced earlier in this judgment, I am satisfied that the award of the general damages made by the jury in this case was not just or proportianate having regard to the evidence concerning the plaintiff’s injuries and that it should be set aside in favour of an award of damages in the sum of €35,000. I am also satisfied that the jury erred in its approach to the issue of contributory negligence such that this court should apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961,with the effect that liability should be apportioned equally between the parties. In such circumstances the plaintiff is entitled to an award of €17,500: an award which is governed by the provisions of s. 17(3) of the Courts Act 1981 (as substituted by s.14 of the Courts Act 1991). Accordingly I would allow the appeal and propose an award of general damages in favour of the plaintiff in the sum of €17,500, with costs to follow in the lesser of the two amounts specified in that section upon the basis of a two day hearing as decided by the trial judge and from which decision no appeal was pursued.
Gammell -v- Doyle (t/a Lee’s Public House) & Anor
[2009] IEHC 416 (28 July 2009)
Court: High Court
Composition of Court:
Judgment by: Hanna J.
a
1. The plaintiff in this case is a labourer and resides at 25 Cedarwood Crescent, Kilcoole in the County of Wicklow. The first named defendant is the owner of public house situated in Kilcoole. The second named defendant is a road haulage operator. He resides at 44, The Crescent, Greystones in the County of Wicklow.
2. The incident giving rise to this case is simply described. On 26th December, 2005, the plaintiff was in the first named defendant’s licensed premises at Kilcoole. After a sequence of events, which was the matter of much controversy at the hearing of this action, the second named defendant punched the plaintiff in the face, thereby causing him to suffer a significant injury. There is no dispute that the second named defendant assaulted the plaintiff. No issue arises as to the fact that the plaintiff had inflicted upon him a fracture of the left cheekbone. Mr. White pleaded guilty to a charge of assault on 17th July, 2007, and received a sentence of two and a half years’ imprisonment which was suspended.
3. Much controversy raged during the trial concerning the status of the plaintiff in the said licensed premises and his general demeanour, state of inebriation and behaviour prior to the punch administered to him. The plaintiff denied that there was any question over his right to be present in the pub, denied any allegations of misconduct on his part and contended that the punch administered to him, quite literally, came out of the blue.
4. Prior to this matter coming on for trial, the plaintiff entered into a settlement with the first named defendant, Mr. William Doyle. Therefore, Mr. Doyle involved himself as a witness only when the matter proceeded before me for two days. At no point were we told the amount of this settlement but it was acknowledged by Mr. Declan McGovern S.C. for the plaintiff that the second named defendant was entitled to credit for any payment made to the plaintiff.
The Evidence
5. The plaintiff, who is 52 years of age and describes himself as a builder’s labourer, said that on St. Stephen’s Day, 2005, he went into Lee’s Public House to see his daughter. His youngest daughter, Laura, worked there; his older daughter, Emma, drinks there. The plaintiff had earlier been in two pubs in Bray. He arrived at approximately seven p.m. The plaintiff said that he went into the lounge; his daughter Emma was not there. The plaintiff ordered a drink. He spoke to the owner of the pub and the owner’s daughter. He spent one hour in the lounge and had two pints. He then went around to the bar to see if his eldest daughter was there. There was a crowd in the bar because of the Tighe funeral. The deceased was a young man. The plaintiff said that he knew the deceased very well. Their employers in the building trade were brothers, although not in business together.
6. He checked around for Emma. He did not see her. Mr. David White, the second named defendant, called him over and bought him a drink. He was sitting in the corner near the hatch. There were four people there including Mr. White’s wife. She was there with another woman sitting to her right. Both ladies were sitting and the plaintiff was on Mr. White’s left-hand side; they were sitting on bar stools.
7. The plaintiff had a conversation with Mr. White. He enquired of Mr. White if he had had a good Christmas and enquired after his business. It was noisy and busy in the pub. There was no conversation with Mr. White concerning his wife or the other lady. The plaintiff says he just said “hello.” He knew Mr. White and his wife’s family fairly well. Maybe Mr. White took up something wrong. The plaintiff says he had turned around to say hello to a Mr. Coyne but Mr. White punched him on the left-hand side of his face. He was turned to the right at the time; he was facing the toilets. He fell to the floor and was dazed.
8. The barman, Mick Doherty, came over and took him outside. His daughter, Laura, also came out. He made his own way home. He felt terrible and was bleeding and sick. The next morning his son brought him to Loughlinstown Hospital. After initial treatment there, he was referred the following Friday to St. James’s Hospital where he came under the care of Professor Stassen. The plaintiff had suffered a significant fracture of the left cheekbone. The professor operated upon him. The plaintiff was discharged the following evening. He was experiencing considerable pain for which he took pain killers. He had also received stitches.
9. Subsequent to this, when he was on the way to visit his doctor, he met Mr. White who apologised to him and remarked, according to the plaintiff, words to the effect of “I hear you are going to take me to the cleaners.” Mr. White allegedly went on to say “fuck you, I don’t care what you do” or words to that effect. The plaintiff says he went to his solicitor Mr. Neville Murphy the next day. At the District Court, prior to the matter being sent forward for trial, the plaintiff said that Mr. White asked if they could sort it out and the plaintiff said it was too late.
10. At this point in the evidence in chief the plaintiff’s counsel, Mr. Declan McGovern S.C., put to the plaintiff certain particulars of negligence and breach of duty on the part of the plaintiff and acts by him of provocation of the second named defendant which were set out in Mr. White’s defence. The first particular alleged that the plaintiff was provocative towards the second named defendant on a number of occasions, asking him about his past sexual experiences with local women. The plaintiff denied this and says that there was no conversation at that level at all. A second particular was then put to him alleging that he was provocative towards the second named defendant in that he made lewd and/or improper and/or sexual references and/or threats and/or suggestions in relation to the second named defendant’s wife. “No, not at all” was the plaintiff’s reply. Finally, when the allegation was made that he was provocative towards the second named defendant in that he pushed his face into the side of the second named defendant’s face, so too did he deny that. He expressed the view that the second named defendant might have taken something up wrong.
11. Under cross-examination by Mr. Mel Christle S.C., who acted for Mr. White, it was queried whether he just had two pints in Bray. The plaintiff said he was seeing friends in Bray. He was asked was he not there for any other reason. It was put to him that he was banned from Lee’s Public House. The plaintiff denied that this was the case. Nobody had told him he was barred from Lee’s Public House. Had he not seen this allegation in the first named defendant’s defence, Mr. Christle enquired? The plaintiff persisted in saying that nobody had told him he was barred from Lee’s Public House. He was not aware of this fact. He said he had two pints in a pub in Bray. He got to Bray around five p.m. and started drinking there around five fifteen p.m. and he had returned to Kilcoole by bus around six p.m. He had not been drinking before he went to Bray.
12. He went in looking for Emma. He had two pints in the lounge before he went to the bar. When asked why he did not check for her in the bar he said he knew that she would not be there.
13. He referred to the wake. He said that around that time he had lived approximately 500 yards from Mr. Tighe, the deceased. Under cross-examination, the plaintiff claimed that that was as much as he knew of Mr. Tighe. I should comment at this point that this is at variance to what the plaintiff said in giving his evidence-in-chief. He accepted it was a sad death. Lee’s, as well as being a public house, was also an undertakers. The plaintiff said that his eldest daughter hung around with Mr. Tighe’s sister. He had arranged to go to the funeral the next day and would have paid his respects if he had seen any one of the family. He denied that he was drunk when he entered the bar. He denied that his state of inebriation became noticeable when he spoke to Mr. White. The plaintiff said that he was called over and bought a pint by Mr. White and said that he said “thanks.”
14. A certain number of crude suggestions allegedly made by the plaintiff were then put by Mr. Christle to Mr. Gammell. Did he not enquire of Mr. White if he was “riding the babysitter”? The plaintiff denied this. Did he not look at the defendant’s wife and remark that she was looking well and that he “wouldn’t mind getting into her knickers”? Again the plaintiff denied this. It was put to the plaintiff that Mr. White asked him to leave the bar after the remarks and the plaintiff said no, that didn’t happen. It was also put to him that his daughter Laura asked him to leave such was his aggressive nature. The plaintiff denied this. Neither daughter was there. It was then put to Mr. Gammell that he leaned into Mr. White, as it were, invading Mr. White’s space. The plaintiff denied this. Laura again asked him to leave and, again, he refused and recommenced the invective. Again, the plaintiff denied this.
15. The plaintiff then said words to the effect “you all think you’re big lads driving around in big jeeps and cars. You’re a shower of wankers.” The plaintiff then allegedly turned his invective on the family of Mr. Tighe, referring to them as knackers and said that they were probably at home drunk; this, according to Mr. Christle, notwithstanding the fact that members of the family were walking in and out. All of this the plaintiff denied. He did accept that the funeral parlour was accessible from the public house.
16. He then, according to Mr. Christle, leaned into the second named defendant, Mr. White, again, and started poking him on his shoulder. At this point, Mr. White asked him to leave or else he would “lose it”. No such thing happened, said the plaintiff. It was suggested that he kept poking at Mr. White and invading Mr. White’s body space and, furthermore, that he was very drunk. It was put to him that both Mr. and Mrs. White had asked him to leave and again all of this was denied. The assault occurred subsequent to all of this.
17. Evidence was given by a member of the gardaí attached to Greystones’ Garda Station that the second named defendant pleaded guilty to assault on 17th June, 2007, and was sentenced, as noted above, on 20th December, 2007. He confirmed that the defendant demonstrated contrition and that he had no previous convictions for assault or drink related matters.
18. No further evidence was called on behalf of the plaintiff; medical reports having been agreed. I must observe that I found it rather surprising that neither of the plaintiff’s daughters, particularly Laura, were called to give evidence since it was apparent, not least during the plaintiff’s cross-examination, that such evidence could have been of considerable assistance to this Court. The absence of such evidence was properly commented upon by Mr. Christle S.C.
19. The next witness to give evidence was the second named defendant Mr. David White. He stated that he was 47 years of age and lived in Kilcoole. He has been married to his wife, Josephine, for 25 years. They have three children. He had studied for one year at Blackrock Technical College. He runs a haulage business.
20. He knew Mark Tighe very well. His death was a shock to the whole community. The body was brought to the funeral home attached to Lee’s Public House. The deceased was only 33 years of age. He and his wife were in company with others in Lee’s. He was there approximately one hour before the plaintiff came in. There were around 100 people there. He noticed Terence; he offered to buy him a pint. He knew that he was barred. The barman, Michael Doherty, served the drink and Mr. White handed it to Mr. Gammell. He observed that the plaintiff was drunk. He made the remark above referred to concerning the babysitter. The defendant answered that she was down in Wexford. He then made the remark about the defendant’s wife and the defendant tried to pass it off lightly saying words to the effect “you will have to ask her.” He carried on with the conversation in the manner as put by Mr. Christle to the plaintiff in cross-examination. He described the Tighes as “alcoholics and knackers.” The defendant was straining to deal with what the plaintiff was saying. At this stage, he told the plaintiff, in his own words, to “fuck off back to the lounge.” At this point, Laura came over and the witness believed she asked the plaintiff to leave. He did not leave. He turned and tried to ignore the plaintiff. He was listening to the plaintiff and Laura. The defendant’s wife told the plaintiff to “get lost.”
21. He was listening to the plaintiff and Laura. The defendant’s wife told the plaintiff to “get lost”. Then the plaintiff came back with his remarks about cars and jeeps etc. The defendant realised that the plaintiff was very drunk. The defendant was getting very upset. They were there to wake Mark Tighe, but the plaintiff only repeated his remarks about the Tighes. He started prodding the defendant and put his face up against the defendant. He told him to move away but the defendant did not. He then punched the plaintiff.
22. He went out the back to calm down. He came back, organised a taxi and went home. The defendant admitted that he simply “lost it” as a result of the plaintiff’s conversation and conduct. John Coyne was not there when he struck the plaintiff.
23. The next day he rang his brother-in-law who suggested that an apology would sort matters out. On 4th January, he met the plaintiff at a bus stop and apologised to him. He said he would sort out the medical bills to which the plaintiff agreed. The next thing, a solicitor’s letter arrived. He denied saying that he did not care etc. He called to the plaintiff’s house. It is there that the plaintiff said that matters rested in the solicitor’s hands.
24. Under cross-examination, he admitted that he was a strong man, although great strength is not required now to drive modern trucks. He admitted that he struck the plaintiff and that he had been provoked into doing so by what the plaintiff had said. He moved away to calm down. He admitted he was a bit drunk. He was provoked because of what he said. The plaintiff had no regard for the people in there.
25. The next person to give evidence was Mrs. Josephine White. Her husband had been with Mr. Tighe’s family over the Christmas period following upon the death of Mark Tighe. The plaintiff lives about five minutes walk away from the Tighes. When in the pub, she heard raised voices. She asked the plaintiff to leave. He was very “narky.” She had heard what the plaintiff had said about her. She decided to ignore him and asked him to go. She heard him talking about the Tighes. She saw him poking David. It was horrible. David could not take it any more. She maintained stoutly under cross-examination that the plaintiff did say all of the things that were attributed to him.
26. Michael Doherty, the barman, was next to give evidence. He said he had been a barman for 15 years. Mr. and Mrs. White were seated at the end of the bar. The plaintiff was standing beside the defendant. The defendant ordered a drink for the plaintiff. The plaintiff had been barred from the pub. He had been instructed to this effect. He saw the defendant giving the drink to the plaintiff. The undertaker’s business was adjacent to the pub. There was an unwritten rule when there was a funeral that people who were barred were allowed in to sympathise with the family of the deceased. He hoped that the plaintiff would not have another drink. That would be a problem.
27. He saw the plaintiff and the defendant talking but he did not know what they were talking about. The plaintiff was standing to the defendant’s left-hand side. They were more or less standing side by side. He felt that they were talking for between five and ten minutes. He heard Dave say “you can’t say that.” He saw the plaintiff prodding the defendant and he saw the defendant hit the plaintiff. Approximately two or three minutes elapsed between the commencement of the prodding and the defendant hitting the plaintiff. Laura went to the plaintiff. She then came back and said that the plaintiff had gone home. The waking continued. Under cross-examination he said that he knew the plaintiff’s daughter Emma and that she drank in the lounge more likely than in the bar. He did not see the plaintiff in the lounge. Mr. Doyle, the owner of the pub, was not there.
28. The witness was later recalled to say that the plaintiff was barred from other pubs in the area.
29. Mr. John Coyne then gave evidence. He noticed the defendant at the counter. He was not in that corner prior to the plaintiff being struck. He does not recall the plaintiff being struck. He heard about it after all the commotion. He knows the plaintiff to see; he is not a friend of the plaintiff.
30. A Mr. Michael Nolan gave evidence. Due to the fact that I disallowed evidence that had not been put to the plaintiff, Mr. Nolan’s evidence did not advance matters.
31. Mr. Shay Fahy gave evidence. He was the father of the late Mark Tighe. He was a retired machine driver. He had been in the public house. There was a big crowd. He had been there earlier in the day and had gone home. People went in and out of the funeral parlour. He was not told of what happened for a long time afterwards. The defendant was a close friend of the family and was with the family over the Christmas period after Mark’s death.
32. Evidence was then received from Mr. William Doyle, the owner of the public house in which these transactions occurred. He came from outside Wicklow Town. He was the owner of the pub since July, 1991. In that year, he barred the plaintiff from the pub. It was not true that the plaintiff was unaware that he had been barred. In 2004, he had seen the plaintiff gain entry to the pub and had him removed. He was also barred from two other licensed premises in Kilcoole. He was also barred from two pubs in Greystones and two in Delgany. Mr. Doyle owned four pubs.
33. Family funerals were an exception; people otherwise barred were allowed into premises to commiserate. This was confined to family members. When it was suggested to him that the plaintiff said he spoke to him, that is on the 26th December, 2005, he emphatically asserted that he was not in the pub at the time. He would have passed through it between the hours of nine and ten o’ clock at night, but he was definitely not there when the plaintiff was there.
34. He said he knows Mr. White. He said the plaintiff had attempted to gain access to other premises from which he was barred. Under cross-examination, he confirmed that Laura was working for him. He also knew the plaintiff’s daughter Emma. She was normally in the lounge area. For funerals, strictly persons within the family circle who had been barred from the pub were allowed in. He accepted that the plaintiff was in the bar. He disputed the fact that the plaintiff had been in the lounge for two hours. There was a large staff turnover. Sometime people who were barred would “chance their arms.” Maybe staff did not know the plaintiff.
35. Mr. Doherty started working the pub in 2004. The pub was knocked down and rebuilt. Mr. Doherty was aware that the plaintiff came to Mr. Doherty’s attention when he came into the bar. The aim was not to make a scene. If a barred person had a drink they let them finish the drink and then have a word. If they didn’t leave, it would then proceed to the next step. The main objective was that the person would leave without creating a hullabaloo. If Mr. Doherty had seen the plaintiff earlier he would not have got a drink. He remembers that night very well. He did not know how many people were there. To access the bar, the plaintiff would walk in through a hallway around the bar into the bar area. There was a minimum of one or two floor staff. When asked under cross-examination how he was able to walk all the way around, Mr. Doyle expressed the view that perhaps the staff in there did not know the plaintiff. Mr. McGovern S.C. asked that if the plaintiff being barred would not create difficulties for his daughter Laura. Mr. Doyle denied this. Mr. McGovern S.C. persisted in putting the case that the plaintiff was not barred from the pub. Mr. Doyle stated that he was. On re-examination, he said that Laura knew that her father was barred from the pub.
36. That concluded the oral evidence in the case. The case was then adjourned to enable the parties to prepare written submissions since a number of legal matters had arisen. For the plaintiff, Mr. McGovern S.C. contended that if the plaintiff’s version of events was accepted then he must succeed. Even if the defendant’s version of events was accepted, the court should still find in full for the plaintiff. Self-defence was not being pleaded, neither had any such case been made in oral evidence. Even if insulting language was used, this could not justify an assault. The defendant could have sued; he could have walked away. Referring to Lane v. Holloway [1968] 1 QB 379, Mr. McGovern said the provocation could only be material when considering the issue of aggravated damages but should not affect the assessment of pecuniary damages. Providing the Australian authority of Fontin v. Katapodis [1962] 108 C.L.R. 177, Lord Denning M.R. said, at p. 378:-
“The defendant has done a civil wrong and should pay compensation for the physical damage done by it. Provocation by the plaintiff can properly be used to take away any element of aggravation; but not to reduce the real damages.”
In the same case, Salmon L.J. stated the following, at p. 390:
“I would unhesitatingly come to that view without any authority at all. I cannot see how logically or on any principle of law, the fact that the plaintiff has behaved rather badly and is a cantankerous old man can even be material when considering what is the proper compensation for the physical injury which he has suffered.”
I should note that Lord Denning M.R. returned to the theme and maintained his view in Murphy v. Culhane [1977] 1 Q.B. 94.
37. Mr. McGovern S.C. maintained that the words and conduct alleged against the plaintiff, if established, would not amount to contributory negligence. He did, however, concede that the case of Ward v. Chief Constable of the Royal Ulster Constabulary [2000] N.I. 543 did open the way for applying contributory negligence to the case. In that particular case, Girvan J. in awarding damages to the plaintiff for excessive and disproportionate force used by the police, reduced by one-third the plaintiff’s damages because the plaintiff had made some minor physical contact with the police thereby causing them to push her violently. However, it was urged upon me that the defendant’s action in this case was grossly disproportionate to any insult inflicted by the plaintiff. Finally, it was argued that this could not be a case in which contemptuous damages should be awarded. Reference was made to the judgment of the Supreme Court in Cooper Flynn v. R.T.E. (Supreme Court, Unreported, 2000), a libel suit. In that case, the Court noted that the jury had found that the plaintiff had no reputation to vindicate. In this case, the plaintiff clearly has suffered a serious injury.
38. For Mr. White, Mr. Mel Christle S.C., in urging me to prefer the version of events as advanced by the defendant and other witnesses on his behalf, submitted that, first, since the plaintiff had compromised the case, as far as the first defendant Mr. Doyle was concerned, the plaintiff then became identified with the first defendant and must bear responsibility for wrong on the part of that defendant. In particular, he relied on s. 35(1)(h) of the Civil Liability Act 1961 which provides as follows:
“Where the plaintiff’s damage was caused by concurrent wrongdoers, and after the occurrence of the damage the liability of one of such wrongdoers is discharged by release or accord made with him by the plaintiff, while the liability of the other wrongdoers remains, the plaintiff shall be deemed to be responsible for the acts of the wrongdoer whose liability is so discharged”.
39. Accordingly, the plaintiff must assume responsibility for the wrongs of the first named defendant. These include not only the wrongs alleged against the first named defendant in the personal injury summons, but also permitting the plaintiff to be on the premises in the state and condition he manifested when he was barred.
40. Mr. Christle S.C. urged that there be a substantial finding of contributory negligence against the plaintiff because of his words and conduct. In this regard, he relied upon s. 34(1) of the Civil Liability Act 1961. That section provides as follows:
“Where, in any action brought by one person in respect of a wrong committed by any other person, it is proved that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff or of one for whose acts he is responsible (in this Part called contributory negligence) and partly by the wrong of the defendant, the damages recoverable in respect of the said wrong shall be reduced by such amount as the court thinks just and equitable having regard to the degrees fault of the plaintiff and defendant: provided that-”
41. Referring to the definition of “wrong” in s. 2 of the said Act, Mr. Christle said that, whatever be the position at common law, there is clear provision for contributory negligence in relation to intentional torts which are also crimes such as assault. “Wrong” is defined in the same Act as meaning:
“[w]rong’ means a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional”.
42. He also referred to the case of Hackett v. Calla Associates Ltd. and Ors. (Unreported, High Court, Peart J., 21 October, 2004). In that case, Peart J. found contributory negligence against the instigator/ringleader of a melee which provoked a disproportionate response from nightclub security staff. The plaintiff was struck with a blunt instrument causing him to lose the sight of one eye. Peart J. held that contributory negligence in that case amounted to 50%.
43. Mr. Christle S.C. then turned to the question of contemptuous damages. I invited submissions on this arising from a reference in a textbook to a number of rather ancient authorities. It seemed to point to a possible line of authority where contemptuous damages, something that is not unfamiliar to the courts in defamation suits, might have some relevance in the proceedings involving this Court in respect of assault. Two of the cases, Plaistowe v. Daly [1832] N.S.W.S.C. 22 and Thorn v. Hunt [1838] N.S.C.W. 95, concerned the most technical of assaults and resulted in awards of one farthing in damages. Closer to home, the former Court of Appeal decided to give a decision in favour of what was apparently a verdict of self-defence in an assault action by a jury. Grealy v. Casey [1901] N.I.J.R. 121 involved a dispute between the plaintiff, a “punter”, colloquially, and a bookmaker. The client was engaged in a dispute over the amount of debt and, in the course of a quarrel, called the bookmaker/defendant what were described as “opprobrious names” and stood opposite him in a “frightening manner.” The Court of Appeal held that the jury were the sole judges as to the construction of the words “fighting attitude” and were in the circumstances entitled to bring in a verdict upholding the defence of self-defence.
44. Finally, on the issue of liability, Mr Christle S.C. asked me to apply rigorously the provisions of s. 26 of the Civil Liability and Courts Act 2004. He invited me to hold that the plaintiff had given false and misleading evidence and, for this reason, the plaintiff’s action should be dismissed. Section 26(1) of the Act of 2004 provides as follows:-
“If, after the commencement of this section, a plaintiff in a personal injuries action gives or adduces, or dishonestly causes to be given or adduced, evidence that—
(a) is false or misleading, in any material respect, and
(b) he or she knows to be false or misleading,
the court shall dismiss the plaintiff’s action unless, for reasons that the court shall state in its decision, the dismissal of the action would result in injustice being done.”
Findings as to fact
45. It is perhaps instructive to peruse the plaintiff’s personal injury summons. I do not have any copy of the verifying affidavit. In the summons, the plaintiff of course alleges assault against the second named defendant. He also alleges negligence and breach of duty against the first named defendant, Mr. Doyle. Among the particulars alleged against him are the following:
(f) failing to remove the second named defendant from the licensed premises when the first named defendant knew, or reasonably ought to have known, that the second named defendant constituted a danger to the safety of customers in the licensed premises;
(g) failing to warn the plaintiff that the second named defendant constituted a danger to the safety of the plaintiff when the first named defendant knew, or ought reasonably to have known, that the second named defendant constituted such danger; and
(h) continuing to serve the second named defendant with alcoholic beverages when the first named defendant knew, or ought reasonably to have known, that the second named defendant constituted a danger to the safety of customers in the licensed premises.
46. If such was the case to be advanced against the first named defendant it seems highly odd that the plaintiff should willingly join the company of someone whom he knew and who was, apparently, such a lethal threat to customers and the public house that night and he was being served alcoholic drink with the effect of enhancing the danger. It is fair to say that the plaintiff painted a somewhat different picture in giving evidence before this Court. If he is to be believed, we have to accept that for no other reason apparent to the plaintiff, an otherwise civilised conversation degenerated into an impulsive act of violence on the part of the second named defendant. He was not barred, he did not say any of the things alleged by Mr. White; this all happened completely out of the blue. The only possible explanation is that Mr. White might have misheard something or taken it up wrong and, in a flash, an otherwise ordinary everyday conversation exploded into an act of violence.
47. Having observed the witnesses who gave evidence in this case, I have no hesitation in preferring the version of events offered by Mr. and Mrs. White and the material witnesses called by Mr. White’s lawyers. I find as a matter of probability the following:-
• The plaintiff was barred from this public house and had been for many years since. He was fully aware of this fact and had, indeed, been prevented from entering in 2004.
• The plaintiff had been drinking earlier, at the very least in Bray, when he made his way to Mr. Doyle’s premises on the evening in question. He was in a drunken state at the latest when he went into the bar area, a fact that became apparent to Mr. White after he bought him a drink.
• The pub was crowded that night largely due to the waking of the late Mark Tighe. Due to that fact and because less experienced staff were probably working in the lounge area, the plaintiff’s presence was not noted. I am satisfied that had the plaintiff been spotted by more experienced staff he would not have been admitted to the pub and certainly would not have been served alcoholic drink in the lounge area. I regard as entirely bogus the plaintiff’s claim that he was looking at that stage for his daughter at that point. Instead, he sat down in the lounge and drank at least two pints.
• I accept fully the evidence of Mr. William Doyle that he, Mr. Doyle, was not present in the lounge when the plaintiff was there. Had he been there, I have no doubt but that he would have asked the plaintiff to leave. The allegation of a conversation having taken place between the plaintiff and Mr. Doyle and his daughter is entirely false in my view.
• The next step on the plaintiff’s odyssey might perhaps have been prompted by a desire to find one of his daughters. However, his daughter Laura was there in the lounge. Yet, the plaintiff did not move himself to go to her and speak to her having found himself waylaid by the offer of a drink from Mr. White. This was a wake and within this sombre setting, Mr. White’s gesture was appropriately convivial and intended as an act of friendship and kindness to someone who was barred.
• I accept entirely the evidence of Mr. and Mrs. White that the plaintiff said the venomous, crude and provocative things described by them. I am satisfied that the plaintiff engaged in a tirade of appalling abuse and lewd sexual references. This was done in the sad setting of a gathering of people, many of whom would have known the late Mark Tighe.
I am satisfied that the plaintiff pressed his face close up against Mr. White and poked him for a number of minutes while speaking to him in the manner which I have described. Although warned by Mr. White and asked to leave by Mrs. White, he persisted heedless of the fact that he was making the defendant very angry. It was this conduct by the plaintiff which sparked the unfortunate, unlawful and highly dangerous reaction which cannot be condoned by this Court. That said, I accept that Mr. White was subjected to the most outlandish provocation.
Conclusion
48. If one were to rely on the cited English authorities and common law, the plaintiff would succeed against the defendant in obtaining an award of damages for tort of assault. It must be stressed here that we are dealing with the civil aspect of this case. The criminal aspect of this case has already taken its course and to that extent the public interest has been served. The plaintiff is prima facie entitled to an award of damages in common law. Before proceeding to assess those damages, however, there are two matters which I consider. One is the application of s. 35(1)(h) of the Civil Liability Act 1961. The other is the issue of contributory negligence in view of the provision of s. 34 of the said Act. These are already cited above.
49. I am not satisfied that I should find any level of responsibility on the part of the first named defendant. In the first instance, the case was not argued in front of me that there was any degree of negligence on Mr. Doyle’s part or that of his servants or agents. Given the circumstances of the night in question, and the substantial crowd which had assembled in the pub, one should be careful not impose an almost impossible duty of care on a publican. I feel, in all of the circumstances of the case, that Mr. Doherty acted discreetly and appropriately. Having heard the evidence, albeit, without adversarial input from Mr. Doyle, I would not have been disposed to make any finding against him on foot of the particulars set forth in the personal injury summons. I find as a fact that Mr. White was not in the condition suggested in the particulars by the plaintiff; he was not the volcanic risk to the public which the summons tend to suggest. On the evidence before me, there was nothing about Mr. White’s behaviour or demeanour which would reasonably have caused the pub staff to apprehend a risk to the public. I accept of course that he had consumed alcohol, or had drink taken in the colloquial expression. As regards the conduct of the plaintiff, given all the circumstances it would have been difficult, if not impossible, to ascertain what the plaintiff was up to. It seems to me that his contemptible behaviour was confined to a very limited circle of people, principally Mr. and Mrs. White, and by the time things proceeded to physical contact I do not think there was anything which reasonably could have been done, for example, by Mr. Doherty. I am satisfied that when the incident occurred there was an appropriate response.
50. I make no finding of contributory negligence against the first named defendant. Thus, s. 35(1)(h) of the Civil Liability Act, 1961 has no material application.
51. The plaintiff, on the other hand, through his wanton conduct, negligence and want of care contributed substantially to the injury which he suffered. The issue of contributory negligence does not appear to have arisen in the English authorities cited above. In this jurisdiction, the Court must have regard to the intervention of the Oireachtas. I see no good reason why intentionally provocative and insulting behaviour carried out over a period of some minutes cannot come within the ambit of contributory negligence. This assault would not have occurred were it not for the persistent misconduct and verbal vitriol of the plaintiff. While again stressing that one must not seek to justify the act of violence which occurred, there is no doubt in my mind that the plaintiff’s behaviour should weigh heavily against him. It is not unreasonable, therefore, to apply the yardstick set out by Peart J. in Hackett v. Calla Associates Ltd. and Ors. (Unreported, High Court, Peart J., 21 October, 2004), I would reduce the plaintiff’s damages by 50%.
52. Two other matters fall to be considered. First, I must assess the damages including consideration as to whether or not this is an appropriate case for contemptuous damages. Finally, I must consider the relevance of s. 26 of the Civil Liability and Courts Act 2004. Addressing first the issue of contemptuous damages. It is apparent that the authorities are both extremely old and not of much assistance. The most recent Irish authority turned on an issue of self-defence which is of no materiality to this case. No authority was found where contemptuous damages were awarded in consequence of the infliction of significant personal injury. I believe it would be hazardous course to award contemptuous damages in such circumstances where the statute has built into law such safeguards as contributory negligence and indeed the Act of 2004. I feel that it would be safer to leave contemptuous damages in the realm of the law of defamation.
53. Turning to the assessment of damages, the plaintiff was referred to St. Columcille’s Hospital, Loughlinstown. He was there complaining of swelling and bruising around the left eye and tenderness of the bones of the left eye. Radiographs revealed a possible fracture of the left infra-orbital bone as well as a nasal fracture. He was seen in St. James’s Hospital on 30 December, 2005. He had some bruising and swelling around the left eye. There was a depression of the left zygoma. He underwent surgery and a general anaesthetic on the same day. A low-profile plate was placed along the frontal zygomatic suture. The plaintiff did very well postoperatively and was discharged home the next day. In summary, the plaintiff incurred a significant fracture of his left zygoma warranting open reduction and internal fixation and the placement of a plate on his left frontal zygomatic suture.
54. I accept that the plaintiff experienced considerable pain and discomfort in the immediate aftermath of his injury. This gradually resolved into numbness of the left cheek, left lip and left upper teeth. There is very mild evidence of flatness of the left cheek. The place was palpable and some tenderness was noted over it, but at last review in November, 2006, things seemed to be getting better and matters were resolving. He is likely to suffer mild continuing symptoms with some numbness and pins and needles in his left cheek. He will have similar symptoms in his left lip and left teeth. Cold will cause him to experience pain from time to time.
55. I would assess general damages in this case in the sum of €15,000 to date and €25,000 into the future. That would be reduced in an award by 50% together with any special damage.
56. I now turn to s. 26 of the Civil Liability and Courts Act 2004. Again, this is set out above. The question I must ask myself is did the plaintiff give false or misleading evidence to this Court knowing same to be false and misleading and was it material? I have already made it clear that I expressly prefer the evidence offered on behalf of Mr. White. I simply do not accept that the incident occurred in the manner alleged by the plaintiff. The plaintiff has at all times maintained that he remembered what happened on that evening and that he sought to contradict the accounts of others which on the balance of probabilities I hold to be true accounts. No infirmity of memory is alleged against the plaintiff or contended for by him.
57. I am satisfied that the plaintiff’s account of what occurred was both fanciful and self-serving and deliberately so. He knew what was going to be alleged against him from the pleadings. In my view, he maintained his evidence both as to his status as a customer and his conduct on the evening in question with a view to deflecting any blame for what occurred and the deleterious effects such might have on the damages he might receive by way of same being reduced. On his behalf, Mr. McGovern S.C. argued that to dismiss the case under s. 26 would amount to an injustice. I would not disagree with him were it to be the case that a plaintiff who had received a significant injury and yet told untruths to a material extent should watch an undoubted tortfeasor walk away. However, in this case it will not occur.
58. The law has taken its course and the second named defendant has suffered the imposition of a significant, albeit suspended, sentence. As to the undoubted nature of the plaintiff’s injury, it is notable that s. 26 is silent as to the existence or nature or extent of any injury. It is “injury neutral” and, therefore, must contemplate a situation where a genuinely injured plaintiff who grossly exaggerates a claim to the extent of giving materially false or misleading evidence can fall foul of its provisions. The purpose of this section is well describe by Peart J. in the case of Carmello v. Casey [2008] 3 IR 524 at pp. 539 to 540. Peart J. says, and I quote:-
“Section 26 was introduced by the Oireachtas for the very clear purpose of avoiding injustice to, inter alios, defendants against whom false or exaggerated claims are mounted in the hope of recovering damages to which such plaintiffs are not entitled. Such actions are also an abuse of the process of the court. It has always been a very serious criminal offence to knowingly give false evidence under oath. The proof of such an offence is required to be beyond reasonable doubt. The court is not so constrained, and makes its finding on the balance of probability. This section is certainly of a draconian nature, but it is deliberately so in the public interest, and is mandatory in its terms, once the court is so satisfied on the balance of probability, unless to dismiss the action would result in injustice being done.”
In the circumstances, in my view, the plaintiff comes within the intended scope of s. 26 of the Civil Liability and Courts Act 2004. Since the law has imposed the appropriate penalty on the defendant, Mr. White, for his action, and since I am satisfied the plaintiff has given false or misleading evidence knowing same to be the case with a view to affecting materially the outcome of the case, I dismiss the action.
Lanigan -v- Central Authority & ors
Lanigan -v- Governor of Cloverhill Prison & ors [2018] IECA 40 (08 February 2018)
Court of Appeal
Composition of Court:
Birmingham J., Mahon J., Hedigan J.
Judgment by:
Birmingham J.
JUDGMENT of Mr. Justice Birmingham delivered on the 8th day of February 2018
1. The Court has dealt with these two linked appeals together. The appeals are described as linked appeals in that they arise from a shared general background and context. The starting point for both appeals is to be found in the fact that the Magistrates’ court in Dungannon, Co. Tyrone, on 17th December, 2012 issued a European Arrest Warrant in respect of Francis Lanigan (hereinafter referred to as “the appellant”), in order that he could be tried for murder and possession of a firearm with intent to endanger life, which crimes are alleged to have been committed on 31st May, 1998 in Dungannon. The appeal to which the Central Authority is a party is an appeal against a decision and order of White J. in what are described as plenary proceedings. In general terms those proceedings had raised issues about the constitutionality of s. 16(1) and s. 20 of the European Arrest Warrant Acts 2003 – 2012, on the grounds that the proceedings are regarded as inquisitorial. The second appeal is from Humphreys J. and relates to a habeas corpus matter/Art. 40 enquiry.
2. The procedural background to the two appeals is an extremely complex one. The background was set out by Humphreys J in Lanigan v. Governor of Cloverhill Prison & ors [2017] IEHC 23. Humphreys J. pointed out that by that time the case had been before at least nine High Court judges, it had been before the Court of Appeal and the Supreme Court on multiple occasions as well as before the Court of Justice of the European Union on one occasion. For ease of reference it is convenient to set out a summary of the narrative provided by Humphreys J.:
“EAW proceedings commence
2. The UK authorities allege that the applicant committed murder and was in possession of a firearm with intent to endanger life on 31st May, 1998, in Dungannon, Co. Tyrone. The UK authorities have stated that it was not until 2011 that they gathered sufficient evidence to charge the defendant. Charges were directed by the Public Prosecution Service for Northern Ireland on 4th May, 2012.
3. The Magistrates’ court in Dungannon issued a European Arrest Warrant for this offence on 17th December, 2012.
4. The High Court (MacEochaidh J.) endorsed the EAW for execution by the Garda on 7th January, 2013. The applicant was arrested on 16th January, 2013.
5. EAW proceedings [2013 EXT 1] then came before the High Court, initially before Murphy J. Bail was refused by Edwards J. on 26th February, 2013. Legal aid was applied for on 3rd July, 2013, and also refused. The applicant subsequently re-applied for legal aid before Peart J. which was granted on 26th July, 2013.
6. Points of objection to surrender were put forward on 26th November, 2013. The hearing of the surrender application commenced on 30th June, 2014.
Constitutional proceedings commence – EAW process continues
7. On 23rd July, 2014, the applicant began constitutional proceedings seeking a declaration that the European Arrest Warrant Act 2003 was invalid by reference to its inquisitorial and sui generis procedure that allegedly permitted departure from fundamental norms of fair procedures.
8. On 17th December, 2014, Murphy J. delivered judgment on preliminary issues in the EAW proceedings.
9. On 1st December, 2014, by virtue of the commencement of legal provision to that effect, the option of referring a question to the CJEU became available in EAW proceedings generally.
10. On the same date, the applicant made a fresh bail application. On 8th December, 2014, the applicant applied to dismiss the surrender application, which was refused on the grounds that it related to the preliminary issues on which the court had already ruled. On the latter date, a further ground of objection to surrender was raised.
11. On 19th December, 2014, Murphy J. granted bail on certain conditions which the applicant could not at that point meet.
12. On 18th January, 2015, Murphy J. decided to refer a number of questions to the CJEU relating to delay in addressing the EAW request outside the time limits set out in art. 17 of the framework decision. At the same time she refused to refer a question relating to the sui generis or adversarial nature of EAW proceedings to the Luxembourg court.
13. On 9th February, 2015, the High Court dismissed an application to vary the monetary terms of bail set by the court on 19th December, 2014.
14. The reference to Luxembourg was not in fact sent until 19th May, 2015. The Advocate General commented on this at para. 94 of his opinion as part of overall “excessive lapse of time” and “unjustified delays in the procedure” which amounted to provisional detention of 30 months, ten times longer than the maximum period authorised by Art. 17 of the framework decision, including successive adjournments of the preliminary issues, and the “repeated periods of inactivity on the part of the executing judicial authority, including 4 and a half months between hearing and delivering judgment on the preliminary issues and four months between the decision to make a reference to the court for a preliminary ruling and the actual order for reference”.
15. Meanwhile the applicant had appealed to the Court of Appeal in relation to bail. That court allowed the appeal on 6th July, 2015, and relaxed the bail conditions.
16. The Court of Justice gave judgment answering the referred questions, on 6th July, 2015, (Case C-237/15 Minister for Justice and Equality v. Lanigan [2016] QB 252).
17. On 4th September, 2015, the High Court (Murphy J.) directed the surrender of the applicant to the UK under the Act of 2003 and his detention in Cloverhill pending surrender. She refused leave to appeal. An appeal was in fact brought without leave (2015/482) but the Court of Appeal refused that appeal (Minister for Justice and Equality v. Lanigan [2016] IECA 91 (Unreported, Court of Appeal (Peart J. (Irvine and Mahon JJ. concurring)), 16th March, 2016). The Supreme Court refused leave to appeal on 27th June, 2016 (Minister for Justice and Equality v. Lanigan [2016] IESCDET 85 (Unreported, Supreme Court (Clarke, MacMenamin and Laffoy JJ.)). That decision appears to be the final decision on the execution of the EAW as far as domestic law is concerned. The 60 day period is meant to cover that between arrest (January, 2013) and final decision on execution. If the latter date was June, 2016 then the period involved was around 20 times that provided for by EU law.
18. Mr. Barron [senior counsel for the Authority] has raised the question as to whether the CJEU requires the State to also complete any consequent Article 40 applications during the period of 60 days specified for the final decision on execution of the EAW as set out in art. 17(3) of the framework decision. That would appear to be correct in that art. 23 which provides a 10 day provision for execution, would naturally only run from the date at which the legal process is at an end and the execution is free to proceed. Independently of that there is an overall obligation of urgency in relation to the execution of the warrant (art. 17(1)).
19. On 9th November, 2015, the applicant was apparently again granted bail by the Court of Appeal (2015/496) (Kelly, Irvine and Hogan JJ.) in the s. 16 proceedings [2013 EXT 1]. A fresh order for bail appeared to be required following the determination of the substantive EAW proceedings by the High Court.
The first habeas corpus application
20. On 9th September, 2015, the applicant made a first Art 40.4 application [2015 No. 1415 SS] before White J., who directed that the application for an inquiry be made on notice. That was done before Hunt J. on 10th September, 2015, who ordered an inquiry which took place before Barrett J. on 14th September, 2015. The order drawn up on that date states that the matter was adjourned, to 17th September, 2015, not adjourned for judgment. However Barrett J. in fact delivered judgment on 17th September, 2015. At the conclusion of that Article 40.4 application the applicant applied for bail and was refused. The order of Barrett J. was appealed to the Court of Appeal (2015/488).
21. On 15th September, 2015, Butler J. ordered a stay on the order for surrender on the application of the state in the light of the proceedings before Barrett J. The order is in an unusual form in that it is entitled in both the extradition proceedings [2013 No 1 EXT] and in the first habeas corpus [2014 No. 1415SS, although the Court of Appeal record number 2015/488 is also cited]. Mr. Barron submits that the correct proceedings in which the order should be granted is within the 2013 extradition proceedings. He was not in a position to explain why the order was also granted in the first habeas corpus application.”
The second habeas corpus application
22. A second article 40 application (the present case) was launched arising from the stay application. On 15th October, 2015, an ex parte application made to Noonan J. was refused.
23. An appeal was lodged to the Court of Appeal (2015/527) which overturned the refusal of the second habeas corpus inquiry by Noonan J., in a decision delivered by Peart J. on 19th October, 2016. At the same time the court upheld the order of Barrett J. refusing relief in the first article 40. The court also admitted the applicant to bail …”
3. To complete the picture it is now necessary to say that the Supreme Court was requested to deal with both of the matters that are now before this Court on a leapfrog basis. The Supreme Court issued a determination on the 26th July, 2017 which refused to permit this. That determination was longer and set out the background in far greater detail than would be normal in the course of a determination, but explained that this had been necessary, in the context of the labyrinthine nature of the litigation. While recognising that this was a determination and not a judgment on a substantial appeal, the decision section merits quotation:
“Decision
56. It has been necessary to set out the history of the case in far greater detail than would normally be desirable in a determination, because the labyrinthine nature of the litigation is not sufficiently summarised in the application. Having carried out that exercise, however, it is at least clear that the entire history has its root in the decision of Murphy J. to request, receive and act upon information obtained pursuant to the power conferred by s.20 of the Act. No other point sought to be raised in these applications could in fact benefit the applicant, since this was the matter that went to the heart of the decision to order his surrender and to the heart of his challenge to the result. The applications for his release under Article 40.4 could only have succeeded if he had demonstrated a fundamental flaw or denial of justice in reaching that decision. Similarly, the challenge to the requirement for a certificate for leave to appeal could be of relevance only if he could show a possibility of success on an appeal on that point.
57. In acting as she did, Murphy J. was clearly seeking to vindicate the rights of the applicant and was proceeding in accordance with the principles discussed by this Court in Rettinger. She relied upon the procedure set out in s.20 of the Act (as amended) and upon the analysis of that section by this Court in Sliczynski. The applicant does not assert that the decision in that case was wrong, but only says that it is being used to justify “far-fetched” propositions of law. No challenge has been mounted to the constitutionality of the section, but only to its interpretation.
58. Having regard to the analysis of the judgment in Sliczynski, it is entirely clear that this Court has considered and endorsed as lawful the use of the s.20 procedure as part of the sui generis inquisitorial EAW process. Further, it is clear that as part of that process information may be received otherwise than by way of sworn affidavit. The concern is for the provenance and authenticity of the information and for its relevance to whatever question is in issue. As Murphy J. pointed out, it is not intended that there should be cross-examination on its accuracy. There is nothing in the application to support a contention that Murphy J. went beyond the parameters of either the statute or the binding precedent.
59. Other matters complained of relate, for the most part, to case management decisions of the judges dealing with the Article 40.4 applications. These do not raise points of law of general public importance. In the circumstances of the case the applicant has not shown that leave is necessary in the interests of justice.
60. The complaint that his application under Article 40.4 was dealt with by Barrett J. when he only wanted an adjournment on bail pending determination of the plenary proceedings is manifestly ill-founded. Article 40.4 is not to be used simply as a convenient mechanism for getting bail. It imposes a duty on the High Court to carry out the constitutional inquiry. In any event, this matter was the subject of an appeal to the Court of Appeal and there is no ground for a further appeal.
61. The applicant has not shown any arguable grounds tending to show that a “leapfrog” appeal would be necessary in relation to the dismissal of the plenary proceedings by White J.
62. In these circumstances leave to appeal to this court will be refused in all three applications.”
4. In the course of his oral presentation, counsel on behalf of Mr Lanigan dealt first with what has been described as the “twenty five day point” in shorthand, which arises in the appeal from Humphreys J., then turned to the appeal from White J. before returning to the appeal from Humphreys J. This Court will follow the same sequence.
5. This so-called “twenty five day point” is raised in the following circumstances. The procedures, including time stipulations, relating to committal of persons pursuant to European Arrest Warrants are dealt with in s. 16 of the European Arrest Warrant Act 2003 as amended. The provisions that would appear to be in issue are these:
“16(1) Where a person does not consent to his or her surrender to the issuing state […] the High Court may, upon such date as is fixed under s. 13 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her.
(2) Where a person does not consent to his or her surrender to the issuing state […], the High Court may, upon such date as is fixed under section 14 or such later date as it considers appropriate, make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her, provided that…
[…]
(4) Where the High Court makes an order under subs. (1) or (2), it shall, unless it orders postponement of surrender under s. 18 –
(a) inform the person to whom the order relates of his or her right to make a complaint under Article 40.4.2 of the Constitution at any time before his or her surrender to the issuing state.
(b) order that the person be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) for a period not exceeding 25 days pending the carrying out of the terms of the order, and
(c) direct that the person be again brought before the High Court –
(i) if he or she is not surrendered before the expiration of the time for surrender under subs. (3(a)) as soon as practical after that expiration, or
(ii) if it appears to the central authority in the state that, because of circumstances beyond the control of the state or the issuing state concerned, that person will not be surrendered on the expiration referred to in subpara. (i) before that expiration.
(5) Where a person is brought before the High Court pursuant to subs. (4)(c) the High Court shall –
(a) f satisfied that because of circumstances beyond the control of the state or the issuing state concerned, the person was not surrendered within the time for surrender under subs. (3A) or, as the case may be, will not be so surrendered –
(i) with the agreement of the issuing judicial authority, fix a new date for the surrender of the person,
(ii) order that the person be detained in a prison or if the person is not more than 21 years of age, in a remand institution for a period not exceeding 10 days after the date fixed under subpara. (1) pending the surrender, and
(b) in any other case, order that the person be discharged.
(5B) Where a person is ordered, under subs. (4)(b) to be detained in a prison (or, if the person is not more than 21 years of age, in a remand institution) and is brought before the High Court pursuant to subs. (4)(c) the person shall be deemed to be in lawful custody at all times beginning at the time of the making of the order under subs. (4)(b) and ending when he or she is brought before the Court.
(6) Where a person –
(a) lodges an appeal pursuant to subs. (11) or
(b) makes a complaint under Art. 40.4.2 of the Constitution, he or she shall not be surrendered to the issuing state while proceedings relating to the appeal or complaint are pending.
[Highlighted sections are those most in issue].
6. The issue raised in this case arises from the fact that on 15th September, 2015 Butler J., following an application to him, ordered a stay on the order for surrender in a situation where the applicant had brought proceedings under Art. 40.4, having brought the matter before White J. on 9th September, 2015 who directed that the application for an enquiry be on notice. That occurred before Hunt J. on 10th September, 2015 and an enquiry followed before Barrett J. on 14th September, 2015 and an oral judgment given on 17th September, 2015 which decision was appealed to the Court of Appeal.
The approach of the High Court judge
7. Humphreys J. dealt with the matter by indicating that it seemed to him that the correct procedure and sequence of events was as follows: That firstly the court makes an order for the surrender of the person under either subs. (1) (endorsement of an EAW) or subs. (2) [Schengen Alert] of s. 16. On making the order for surrender, the court informs the person of their rights and directs that the person be brought back to the court if the person is not surrendered before the expiration of the time for surrender under subs. (3A). The order for surrender generally takes effect 15 days after it is made (subs. (3)) unless habeas corpus or appeal proceedings are brought, the taking effect of the order for surrender triggers the start of a 10-day period in which the surrender needs to be effected. If the person is not surrendered within that 10-day period, the person should be brought back to the High Court (subs. (4)(c)) and the court may on certain conditions fix a new date for surrender (subs. (5)) or may discharge the person.
8. Significantly, Humphreys J. then goes on to observe that the time at which the person needs to be brought back to the High Court by reason of the expiry of the 10-day period under subs. (3A) is not ten days after the surrender order takes effect, but ten days after the order takes effect (subject to subs. … (6)) in other words, he said, ten days after any appeal or Art. 40 application is concluded. He further observed that subs. (6) reflects recital 12 which reserves for each member state the right to apply its own constitutional rules as to fundamental rights. The right to apply for habeas corpus, he notes, is reflected in Art. 5(4) of the ECHR and Art. 47 of the EU Charter.
9. On the basis of that analysis he concluded:
“On that logic, there was never any need to apply to Butler J. for a stay, because the 10 day period never got rolling for the simple reason that that period was subject to sub-s. (6) and therefore subject to the possibility of applying pursuant to Article 40.4.”
10. Having expressed the firm view that the application for a stay to Butler J. was unnecessary, he then addressed the approach of his colleague McDermott J. in Myerscough v. Governor of Arbour Hill [2016] IEHC 333 and the approach of the Court of Appeal in that case, taking the position that his assessment of the authorities reinforces his view that the stay application was unnecessary. However, the stay application being unnecessary did not mean that it infringed any rights of the applicant, as it merely duplicated the stay that would arise statutorily from the fact that the time for surrender under the 2003 Act had not arrived. Therefore, he said that even if the stay was over-cautious, it was not unlawful.
11. For my part I find the analysis engaged in by Humphreys J. cogent, to the point of compelling. However, whether one takes the view that the application to Butler J. was unnecessary, as I would be inclined to do, or the view that it was an appropriate intervention and it is this intervention which validated Mr Lanigan’s ongoing detention, one way or another the challenge has to fail.
12. I turn next to the decision of White J. The proceedings the subject matter of that decision were commenced by issue of a plenary summons dated 23rd July, 2014 which was served along with the statement of claim on 11th December, 2014. The summons indicated that the relief sought was as follows:
“For an order that insofar as the European Arrest Warrant 2003, as amended, has introduced an inquisitorial and sui generis procedure that permits departure from fundamental norms of fair procedure, as particularised in para. 21 of the Statement of Claim and also unfairly restricts the right of appeal, it is repugnant to the Constitution and contravenes the European Convention on Human Rights, the EU Charter on Fundamental Rights, and for an order that the Plaintiff surrender as sought in related proceedings [2003/1EXT] should not be permitted.”
13. In response, the defendants issued a notice of motion seeking the following orders:
(i) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts dismissing the plaintiff’s claim on the grounds that it discloses no reasonable cause of action or that the said claim is frivolous or vexatious.
(ii) Further and in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the claim as failing to disclose any cause of action known to law and on the basis that the claim is unsustainable and/or bound to fail in law.
(iii) Further and in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing the plaintiff’s claim as being an abuse of the process.”
14. It is important to appreciate that White J.’s decision (Lanigan v. Central Authority and others [2016] IEHC 682) was given in the context of an application brought by the defendants to dismiss the plaintiff’s claim rather than at the conclusion of a substantive hearing. Counsel for the appellant is therefore correct in stating that at this stage the issue is one of arguability and the onus on the State, if it is to succeed in having the proceedings dismissed without a full hearing is a heavy one. Counsel has summarised the proceedings as raising both constitutional and non-constitutional issues. In summary, the constitutional issues are
(i) the inquisitorial/sui generis nature of the proceedings;
(ii) associated with that, the restriction on the opportunity and ability to cross examine; and
(iii) the restrictions on the right to appeal to cases where the trial judge issues a certificate for that purpose.
The non-constitutional points sought to be raised were:
(i) that the original High Court judge, Murphy J., had been misled by reason of having been given false or misleading information;
(ii) a claim for damages pursuant to the decision of the ECJ in Francovich, this relates to the fact that an application for bail by Mr Lanigan was opposed; and
(iii) a claim for damages under Kobler decision on the basis that an application for a reference was wrongly refused.
15. The respondents, for their part, say that the arguments advanced by the appellant are based on a number of assumptions, these being:
a. That Murphy J. at the s. 16 hearing was obliged to advise the appellant in relation to the provisions of s. 20 of the European Arrest Warrant Act 2003 and invite submissions.
b. That Mr Lanigan had some basis for objecting to the High Court judge seeking further information from the Northern Ireland authorities that he had been unable to pursue.
c. That the appellant had contested the information provided by the Northern Ireland Prison Service and the police authority.
d. That the Maghaberry Prison Report was inconsistent with the information provided by the Northern Ireland authorities.
e. That the appellant was in personal danger – his life was under threat.
f. That the appellant was prevented from arguing the alleged unconstitutionality of the European Arrest Warrant Act 2003 before the High Court in the s. 16 proceedings.
However the respondents say that each of these assumptions are wrong. The respondents say that there was no obligation on the trial judge to advise the appellant that she was considering exercising her entitlement to seek further information under s. 20 of the Act. On this aspect, I am in agreement with the State respondents. There were a number of references to s. 20 in the course of submissions by counsel for the Minister, so even someone not well versed in the European Arrest Warrant procedure would have become aware of the existence of the entitlement to seek information. However, as it happens in this case the appellant was represented by a very experienced legal team who undoubtedly were aware of the provisions of s.20. The question of seeking information pursuant to s. 20 was an issue in the High Court proceedings that were ongoing in July, 2014. At the end of July, 2014 the appellant issued plenary proceedings, the proceedings which are now at the centre of this appeal. However the proceedings were not served until 11th December, 2014, which of course was after the High Court gave its first judgment on 17th November, 2014 and after further information had been provided by the Northern Ireland authorities. It would seem that an issue having arisen in the context of the s. 16 hearing and Mr Lanigan decided to keep his constitutional arguments for another day. This practice of keeping points back to be run later and separately was not an acceptable one and raises issues as to whether what is happening amounts to an abuse of process. In Minister for Justice v. O’Connor [2017] IESC 21, O’Donnell J. commented:
“There is no substance to the argument that the appellant was entitled to make objection in a piecemeal fashion.”
I would respectfully echo those remarks. Indeed I would go further and say that it is incumbent on courts to be aware of the possibility of tactics designed to buy time or postpone the evil day. In this case, the appellant did not seek to refute the information that was provided by the Northern Irish authorities in the course of the s. 16 hearing. However, he now says that because of a report on conditions in Maghaberry Prison that he has accessed, that the information provided to the High Court judge was false and misleading. That report postdates the s. 16 hearing, and an erroneous assertion to the contrary in the statement of claim has now been corrected. In any event, on the key issues of whether there is a threat to life in the case of prisoners, the report does not support the contentions of the appellant, Mr Lanigan, indeed the respondents say that the report undermines the assertions made by the appellant. In any event, the respondents say that there is an unreality to suggestions of threats from the INLA and loyalist sources from which the appellant would not or could not be protected by the authorities, in a situation where he has been living openly in Dublin while on bail.
16. The approach of the High Court judge was to recall the established jurisprudence in relation to striking out and dismissing proceedings and the rule in Henderson v. Henderson. He did so in terms that are largely noncontroversial and indeed I do not understand there to be any real dispute between the parties as to what the law is in this area. The dispute is as to whether this is an appropriate case to exercise a jurisdiction the extent of which is well established.
17. Having touched on the issue of delay, he concluded that such delay as there had been had not influenced the Court’s decision and that the plaintiff was entitled to issue the summons and that the defendant was entitled to make the case that the action was bound to fail and should not go further, he then turned to the issues raised by the proceedings. So far as s. 16(11) and the restrictions on the right to appeal are concerned, he took the view that this had been definitely decided in the judgment of McKechnie J. of O’Sullivan v. The Chief Executive of the Irish Prison Service [2010] 4 IR 562. To this the appellant responds with some acerbity and says that if cases can be definitely decided as a result of a High Court decision, why does one need a Supreme Court or a Court of Appeal? In truth, there might be some justification for this response if it were not for the fact that the requirement for a certificate to appeal in the EAW regime does not stand alone, and mirrors similar provisions in other areas, such as planning, immigration and NAMA, to name but a few and indeed the system of certification can be traced right back to the Courts of Justice Act 1924 and s. 29 thereof. Thus the nature of the procedure has been considered in cases such as Irish Asphalt v. An Bord Pleanála [1996] 2 IR 179 and Irish Hardware Association v. South Dublin County Council [2001] IESC 5. Thus he felt able to conclude that that aspect of the applicant’s claim was bound to fail. I believe he was entitled to reach that view and I regard it as relevant that the applicant must have known the statutory architecture that existed from the 16th January, 2013 when he was first arrested on foot of the European Arrest Warrant.
18. In relation to the invocation of s. 20, the respondents in the High Court relied on the case of The Minister for Justice Equality & Law Reform v. Sliczynski [2008] IESC 73. While the plaintiff in the High Court sought to distinguish Sliczynski and to downplay its significance, the High Court however considered the decision in considerable detail and placed considerable emphasis on it. The High Court felt that the categorisation of the proceedings as sui generis, i.e. of its own kind, was self-evident. I agree with that remark and indeed with the fact that it is now well established that the proceedings are inquisitorial, however, inquisitorial only in one sense. Generally speaking, the parties present their evidence in the way they would in any other form of proceedings. Section 20, which is the section which is in issue here does represent a departure from the situation that generally applies. However, to suggest that as proceedings are in a sense inquisitorial, the right to cross examine is set at nought is without foundation. The point was made with some force in exchanges between bench and bar by one member of the court that while it is the case that a majority of member states of both the Council of Europe and the European Union have legal systems which are at least partly inquisitorial, there is no basis for concluding that cross examination is excluded, on the contrary, searching cross examination is a feature of legal proceedings in many member states.
19. I am of the view therefore that the three constitutional issues raised, the sui generis/inquisitorial issue, the restriction on cross examination arising from s. 20 and the arrangements for appeal were properly considered by the trial judge and his conclusion that the case should not be permitted to proceed on that aspect was one that was open to him and his conclusions are not ones which should be interfered with.
20. I turn now, briefly, to the non-constitutional issues. There is, first of all, the complaint that the trial judge was misled to the extent that it is said that the order for the surrender of Mr Lanigan was obtained by fraud. I have already referred to the emergence of a report on conditions in Maghaberry Prison. The task facing those that would suggest that the publication of a report that postdates the High Court judgment establishes that information put before the High Court was false, misleading or fraudulent is a difficult one. The respondents have contended, and I myself would accept, that the report offers no additional support whatever to Mr Lanigan.
21. Turning then to what might be described as the Francovich and Kobler point, I do not think it is unfair to describe them as “make weights”. I do not see them as points of any real substance, and as much was more or less conceded by counsel for the applicant who emphasises that at this stage he merely has to establish that it has not been established that the points are unarguable. For my part I would see their inclusion at this stage as a contrivance and without merit.
22. So in summary I would uphold the approach taken by the High Court judge, White J. and would simply add this observation: that where it is sought to spin a labyrinthine web, and where elements of the challenge to surrender are fed out in a piecemeal basis, it is likely that those doing so will have the proceedings subjected to strict, indeed rigorous scrutiny.
Appeal from Humphreys J.
23. Before the High Court, counsel for Mr Lanigan summarised his challenge to the detention under four headings:
• Res judicata and Henderson v. Henderson jurisprudence do not apply in habeas corpus applications and therefore the court was invited to revisit previous determinations under existing accepted law. It was submitted that for reasons which were advanced but rejected at earlier stages that the determination was unlawful.
• Article 40.4 must be interpreted in a manner consistent with EU law and by extension with UN General Assembly Working Group on Arbitrary Detention Reports on Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court. On this basis it was submitted that the Constitution had to be construed as meaning that a court hearing an Article 40 application had jurisdiction to revisit previous determinations.
• The third point is that the granting of a stay was not appropriate, having been ousted by legislation. This point has already been considered in the course of this judgment under the heading of the so-called 25 day point and has already been rejected.
• Fourthly, the extravagant delays, which Mr Lanigan described as egregious, and which he puts down to the State’s litigation strategy was such as to render the detention unlawful per se.
24. Humphreys J. pointed out that by reference to the suggested entitlement to reopen issues, that he was being asked to revisit decisions of three High Court colleagues, Murphy, Barrett and White JJ., as well as a decision of the Court of Appeal on appeal from Barrett J. The High Court judge then went on to refer to extracts from “The Law of habeas corpus in Ireland” by Kevin Costelloe and to the authorities there referred to, in support of the proposition that an applicant will not be permitted to challenge on a secondary application grounds which had previously been rejected in a previous hearing, citing Re Charles Wilson (No. 1) (unreported, Supreme Court, 11 July 1968) and Junior v. Clifford (unreported, High Court, 17 December 1993). Humphreys J. went on in the same context to refer to the decision of Hogan J. in Joyce v. The Governor of the Dóchas Centre [2012] 2 IR 666.
25. Having set out what he saw as the ground rules, Humphreys J. then addressed the criticisms that were advanced of the earlier decisions. He points out that so far as Murphy J. was concerned, the criticism against her is that she did not defer making the orders sought in the light of the constitutional action and also that counsel had gone through her judgment and had identified possible appeal points. He points out that the approach being taken would authorise a form of appeal to a judge of coordinate jurisdiction which he said was impermissible in our system. He says that this is doubly so when there is an EU obligation of expedition, and where the legislature has seen fit to restrict the right of appeal.
26. With those comments of the High Court judge I find myself in complete agreement. Indeed, I would add that having regard to our international obligations, and our obligations arising from our membership of the EU, the delays that have bedevilled this application are completely unacceptable. In that regard I should say that I do not at all accept that the delays that have occurred are attributable to the State’s litigation strategy but rather it seems to me that the delays have to be laid firmly at the door of Mr Lanigan and the strategy that he has pursued.
27. The error attributable to Barrett J. was in deciding the merits of the first Art. 40 application when what was being sought on behalf of Mr Lanigan was that the inquiry should be deferred. He then pointed out that the decision of Barrett J. was the subject of an appeal to the Court of Appeal. Humphreys J. was entirely correct to take the view that the decision of the Court of Appeal was binding on him. Insofar as the present appeal in effect invites this Court to revisit the decision of a differently constituted Court of Appeal, I would decline to do so.
28. White J. is criticised for misunderstanding the applicant’s case and then wrongfully concluding that the proceedings were bound to fail. Again, the difficulty about an appeal to a judge of the same jurisdiction arises.
29. The approach taken by Humphreys J. was one that might be categorised as indulgent, but tolerant, flexible and indulgent as he was undoubtedly was, he was nevertheless firm in rejecting the application. In my view he was perfectly correct to do so.
30. It seems that the intent to initiate serial proceedings and to reopen what had already been decided is prompted by the fact that it is well established that even where there has been an unsuccessful application for surrender, this does not necessarily preclude a further application. It is said that if regard is had to the concept of “equality of arms” that serial or multiple challenges to surrender should likewise be permitted. In my view this argument is quite misconceived. There is no reason why the requesting state or the Central Authority should not wish to put its best foot forward from day one. However, on the other side, there must be some temptation for an individual whose surrender is sought to postpone the evil day, whether by deliberately holding points back or by seeking to raise a point late in the day which did not seem to have been worth arguing the first time round.
31. I am also in complete agreement with Humphreys J. that EU law does not require a reinterpretation of the Constitution. The trial judge quotes counsel for Mr Lanigan as submitting that EU law incorporates ECHR and UN standards and so has priority over judicial interpretations of the Constitution and that the latter has to be adjusted to accommodate the former. In that regard the High Court judge commented:
“At the level of high generality that is a fair point but at the level of detail, that proposition does not ‘bite’ in any meaningful way in the present case.”
I would echo those observations and indeed I regard the contrary proposition to be unarguable.
32. In summary then I would uphold the decision of Humphreys J. to dismiss the Art. 40 application and would dismiss the appeal. I have already indicated that I would also uphold the decision of White J., so in the event I would dismiss both appeals. I would simply add that I do not regard a reference to the Court of Justice of the European Union which has been canvassed as appropriate or necessary in either case.
F v West Berkshire HA
[1991] UKHL 1 (17 July 1990)
JUDGMENT
Die Jovis 4° Maii 1989
Upon Report from the Appellate Committee to whom was
referred the Cause In re F, That the Committee had heard
Counsel as well on Monday the 27th and Tuesday the 28th days
of February as on Wednesday the 18th, Thursday the 2nd, Monday
the 6th, Tuesday the 7th, Wednesday the 8th and Thursday the
9th days of March last, upon the Petition and Appeal of the
Official Solicitor to the Supreme Court, of Penderel House,
287 High Holborn, London WC1V 7HP praying that the matter of
the Order set forth in the Schedule thereto, namely an Order
of Her Majesty’s Court of Appeal of the 3rd day of February
1989, might be reviewed before Her Majesty the Queen in Her
Court of Parliament and that the said Order might be reversed,
varied or altered or that the Petitioners might have such
other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; as upon the cases of
Fiona Kinloch (by her mother and next friend Lesley Perkins)
and the West Berkshire Health Authority, lodged in answer to
the said Appeal; and Counsel having been heard as amicus
curiae and also on behalf of the Mental Health Act Commission,
the Intervenors in the said Appeal; and due consideration had
this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of the 3rd day of February 1989
complained of in the said Appeal be, and the same is hereby,
Set Aside, save as to legal aid taxation, and that the said
Petition and Appeal be, and the same is hereby, dismissed this
House: And it is further Ordered, That the following Order
and Declaration be substituted for that of Mr. Justice Scott
Baker of the 2nd day of December 1988, as amended on the 16th
day of December 1988:
“(1) it is declared that the operation of
sterilisation proposed to be performed on the
plaintiff being in the existing circumstances in
her best interests can lawfully be performed on
her despite her inability to consent to it;
(2) It is ordered that in the event of a material
change in the existing circumstances occurring
before the said operation has been performed any
party shall have liberty to apply for such further
or other declaration or order as may be just”;
And it is also further Ordered, That the costs of the said
Respondent Fiona Kinloch be taxed in accordance with Schedule
2 to the Legal Aid Act 1974, as amended, such costs to include
provision for three Counsel.
Cler: Parliamentor:
Oral Judgment: 4.5.89
Reasons: 24 5.89
HOUSE OF LORDS
IN RE F.
(RESPONDENT)
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Griffiths
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
LORD BRIDGE OF HARWICH
My Lords,
I have had the advantage of reading the speeches of my
noble and learned friends Lord Brandon of Oakbrook and Lord Goff
of Chieveley. I concurred in the dismissal of the appeal, subject
to a variation of the terms of the order made by Scott Baker J.,
for the reasons given by them.
The appeal raised a number of difficult questions regarding
both the jurisdiction and the procedure of the court in relation to
the lawfulness of the sterilisation of an adult woman disabled by
mental incapacity from giving her consent to the operation. These
issues are fully examined by Lord Brandon and Lord Goff and I
further agree, for the reasons they give in the following
conclusions:-
-
-
-
that no court now has jurisdiction either by statute or
derived from the Crown as parens patriae to give or
withhold consent to such an operation in the case of an
adult as it would in wardship proceedings in the case of a
minor; -
that the court has jurisdiction to declare the lawfulness of
such an operation proposed to be performed on the ground
that it is in the circumstances in the best interests of the
woman and that, although such a declaration is not
necessary to establish the lawfulness of the operation, in
practice the court’s jurisdiction should be invoked whenever
such an operation is proposed to be performed. -
that for the future the procedure to be used when applying
for a declaration of the kind in question should be regulated
as proposed in the speech of my noble and learned friend
Lord Brandon of Oakbrook.
-
-
The issues canvassed in argument before your Lordships
revealed the paucity of clearly defined principles in the common
law which may be applied to determine the lawfulness of medical
or surgical treatment given to a patient who for any reason,
temporary or permanent, lacks the capacity to give or to
communicate consent to that treatment. It seems to me to be
axiomatic that treatment which is necessary to preserve the life,
health or well being of the patient may lawfully be given without
consent. But if a rigid criterion of necessity were to be applied
to determine what is and what is not lawful in the treatment of
the unconscious and the incompetent, many of those unfortunate
enough to be deprived of the capacity to make or communicate
rational decisions by accident, illness or unsoundness of mind might
be deprived of treatment which it would be entirely beneficial for
them to receive.
Moreoever, it seems to me of first importance that the
common law should be readily intelligible to and applicable by all
those who undertake the care of persons lacking the capacity to
consent to treatment. It would be intolerable for members of the
medical, nursing and other professions devoted to the care of the
sick that, in caring for those lacking the capacity to consent to
treatment they should be put in the dilemma that, if they
administer the treatment which they believe to be in the patient’s
best interests, acting with due skill and care, they run the risk of
being held guilty of trespass to the person, but if they withhold
that treatment, they may be in breach of a duty of care owed to
the patient. If those who undertake responsibility for the care of
incompetent or unconscious patients administer curative or
prophylactic treatment which they believe to be appropriate to the
patient’s existing condition of disease, injury or bodily malfunction
or susceptibility to such a condition in the future, the lawfulness
of that treatment should be judged by one standard, not two. It
follows that if the professionals in question have acted with due
skill and care, judged by the well-known test laid down in Bolam
v. Friern Hospital Management Committee [1957] 1 W.L.R. 582,
they should be immune from liability in trespass, just as they are
immune from liability in negligence. The special considerations
which apply in the case of the sterilisation of a woman who is
physically perfectly healthy or of an operation upon an organ
transplant donor arise only because such treatment cannot be
considered either curative or prophylactic.
LORD BRANDON OF OAKBROOK
My Lords,
This appeal concerns the proposed sterilisation of an adult
woman, F., who is disabled by mental incapacity from consenting
to the operation. By an originating summons issued in the High
Court, Family Division, on 20 June 1988, in which F. by her
mother and next friend was named as plaintiff and the West
Berkshire Health Authority (“the health authority”) as defendant,
F. applied for (1) a declaration, under R.S.C., Ord. 15, r. 16, that
– 2 –
to effect her sterlisation would not amount to an unlawful act by
reason only of the absence of her consent or (2) the consent of
the court under either its parens patriae or its inherent jurisdiction
to her sterilisation. The application was heard by Scott Baker J.
in chambers with the assistance of counsel instructed by the
Official Solicitor as amicus curiae. On 2 December 1988 the
judge gave judgment in open court and by order of that date made
the declaration sought under (1) above. Pursuant to a direction
given by the Lord Chancellor under section 90(3)(b) of the Supreme
Court Act 1981 the Official Solicitor, being of opinion that it was
in F.’s interests that the case should be considered by the Court
of Appeal, obtained the leave of that court to appeal against the
decision of Scott Baker J. By order dated 3 February 1989 the
Court of Appeal (Lord Donaldson of Lymington M.R., Neill and
Butler-Sloss L.JJ.) dismissed the Official Solicitor’s appeal and
gave him leave to appeal to your Lordships’ House. Subsequently
the House allowed an application by the Mental Health Act
Commission for England and Wales for leave to intervene in the
appeal and your Lordships had the benefit of additional argument
by counsel for them at the hearing.
The material facts relating to F., which are not in dispute,
are these. She was born on 13 January 1953, so that she is now
36. She suffers from serious mental disability, probably as a
consequence of an acute infection of the respiratory tract which
she had when she was about nine months old. She has been a
voluntary in-patient at Borocourt Hospital (a mental hospital under
the control of the health authority) since 1967 when she was 14.
Her mental disability takes the form of an arrested or incomplete
development of the mind. She has the verbal capacity of a child
of two and the general mental capacity of a child of four to five.
She is unable to express her views in words but can indicate what
she likes or dislikes, for example, people, food, clothes and
matters of routine. She experiences emotions such as enjoyment,
sadness and fear, but is prone to express them differently from
others. She is liable to become aggressive. Her mother is her
only relative and visits her regularly. There is a strong bond of
affection between them. As a result of the treatment which F.
has received during her time in hospital she has made significant
progress. She has become less aggressive and is allowed
considerable freedom of movement about the hospital grounds
which are large. There is, however, no prospect of any
development in her mental capacity.
The question of F. being sterilised has arisen because of a
relationship which she has formed with a male patient at the same
hospital, P. This relationship is of a sexual nature and probably
involves sexual intercourse, or something close to it, about twice a
month. The relationship is entirely voluntary on F.’s part and it is
likely that she obtains pleasure from it. There is no reason to
believe that F. has other than the ordinary fertility of a woman of
her age. Because of her mental disability, however, she could not
cope at all with pregnancy, labour or delivery, the meaning of
which she would not understand. Nor could she care for a baby if
she ever had one. In these circumstances it would, from a
psychiatric point of view, be disastrous for her to conceive a
child. There is a serious objection to each of the ordinary
methods of contraception. So far as varieties of the pill are
concerned she would not be able to use them effectively and there
– 3 –
is a risk of their causing damage to her physical health. So far
as an inter-uterine device is concerned, there would be danger of
infection arising, the symptoms of which she would not be able to
describe so that remedial measures could not be taken in time.
In the light of the facts set out above Scott Baker J.
concluded that it would be in the best interests of F. to have an
operation for sterilisation by ligation of her Fallopian tubes. The
Court of Appeal unanimously affirmed that conclusion, and no
challenge to its correctness was made on behalf of any party at
the hearing of the appeal before your Lordships.
It might have been supposed that, with such complete
agreement that it was in F.’s best interests that she should be
sterilised, no difficulty about giving effect to that agreement
would have arisen. Difficulty, however, has arisen because of
doubts about three questions of law and legal procedure. The first
question is whether it is necessary or desirable for the court to
become involved in the matter at all. The second question is, if
so, what jurisdiction does the court have to deal with the matter,
and according to what principles should that jurisdiction be
exercised. The third question is, assuming that the court has
jurisdiction and is bound to exercise it in a particular manner,
what procedure should be used for the invocation and subsequent
exercise of that jurisdiction.
If F. were a minor of say 17, instead of an adult of 36, and
the same problem arose in relation to her, there would be no
difficulty in answering these three questions. This is because your
Lordships’ House dealt authoritatively with a case involving the
sterilisation of a girl just under 18, who suffered from mental
disability closely comparable to F.’s, in In Re B. (A Minor)
(Wardship: Sterilisation) [1988] A.C. 199. The answer to the first
question would have been that, because of the seriousness of
deciding whether the girl should be sterilised or not, the court, in
the form of the High Court, Family Division, should be involved in
the matter. The answer to the second question would be that the
court could exercise its wardship jurisdiction, and, in doing so,
would be bound to treat the welfare, or to use an expression with
substantially the same meaning, the best interests of the minor, as
the paramount consideration. The answer to the third question
would be that the wardship jurisdiction of a court would be
invoked by the issue by an interested party of an originating
summons under R.S.C., Ord. 90, r. 3, and the procedure then
followed would be the ordinary procedure designed to bring all
relevant expert and other evidence before the court so as to
enable it to decide whether sterilisation was or was not in the
best interests of the girl.
For reasons which will become apparent later, no court or
judge has now any jurisdiction with respect to the person of an
adult under mental disability comparable with the wardship
jurisdiction of the High Court with respect to the person of a
minor in a similar condition. Because of this, no ready answers
are available to the three questions referred to above in the case
of such an adult, and a separate examination of each of them has
to be made.
(1) The necessity or desirability of the court being involved
– 4 –
Part IV of the Mental Health Act 1983 contains provisions,
which it is not necessary to detail, imposing restrictions or
conditions on the giving to mentally disorded persons of certain
kinds of treatment for their mental disorder. The Act, however,
does not contain any provisions relating to the giving of treatment
to patients for any conditions other than their mental disorder.
The result is that the lawfulness of giving any treatment of the
latter kind depends not on statute but the common law.
At common law a doctor cannot lawfully operate on adult
patients of sound mind, or give them any other treatment involving
the application of physical force however small (“other treatment”),
without their consent. If a doctor were to operate on such
patients, or give them other treatment, without their consent, he
would commit the actionable tort of trespass to the person. There
are, however, cases where adult patients cannot give or refuse
their consent to an operation or other treatment. One case is
where, as a result of an accident or otherwise, an adult patient is
unconscious and an operation or other treatment cannot be safely
delayed until he or she recovers consciousness. Another case is
where a patient, though adult, cannot by reason of mental
disability understand the nature or purpose of an operation or
other treatment. The common law would be seriously defective if
it failed to provide a solution to the problem created by such
inability to consent. In my opinion, however, the common law
does not so fail. In my opinion, the solution to the problem which
the common law provides is that a doctor can lawfully operate on,
or give other treatment to, adult patients who are incapable, for
one reason or another, of consenting to his doing so, provided that
the operation or other treatment concerned is in the best interests
of such patients. The operation or other treatment will be in
their best interests if, but only if, it is carried out in order either
to save their lives, or to ensure improvement or prevent
deterioration in their physical or mental health.
Different views have been put forward with regard to the
principle which makes it lawful for a doctor to operate on or give
other treatment to adult patients without their consent in the two
cases to which I have referred above. The Court of Appeal in the
present case regarded the matter as depending on the public
interest. I would not disagree with that as a broad proposition,
but I think that it is helpful to consider the principle in
accordance with which the public interest leads to this result. In
my opinion, the principle is that, when persons lack the capacity,
for whatever reason, to take decisions about the performance of
operations on them, or the giving of other medical treatment to
them, it is necessary that some other person or persons, with the
appropriate qualifications, should take such decisions for them.
Otherwise they would be deprived of medical care which they need
and to which they are entitled.
In many cases, however, it will not only be lawful for
doctors, on the ground of necessity, to operate on or give other
medical treatment to adult patients disabled from giving their
consent; it will also be their common law duty to do so.
In the case of adult patients made unconscious by an
accident or otherwise, they will normally be received into the
casualty department of a hospital, which thereby undertakes the
– 5 –
care of them. It will then be the duty of the doctors at that
hospital to use their best endeavours to do, by way of either an
operation or other treatment, that which is in the best interests of
such patients.
In the case of adult patients suffering from mental
disability, they will normally, in accordance with the scheme of
the Mental Health Act 1983, be either in the care of guardians,
who will refer them to doctors for medical treatment, or of
doctors at mental hospitals in which the patients either reside
voluntarily or are detained compulsorily. It will then again be the
duty of the doctors concerned to use their best endeavours to do,
by way of either an operation or other treatment, that which is in
the best interests of such patients.
The application of the principle which I have described
means that the lawfulness of a doctor operating on, or giving
other treatment to, an adult patient disabled from giving consent,
will depend not on any approval or sanction of a court, but on the
question whether the operation or other treatment is in the best
interests of the patient concerned. That is, from a practical point
of view, just as well, for, if every operation to be performed, or
other treatment to be given, required the approval or sanction of
the court, the whole process of medical care for such patients
would grind to a halt.
That is not the end of the matter, however, for there
remains a further question to be considered. That question is
whether, in the case of an operation for the sterilisation of an
adult woman of child-bearing age, who is mentally disabled from
giving or refusing her consent to it, although involvement of the
court is not strictly necessary as a matter of law, it is
nevertheless highly desirable as a matter of good practice. In
considering that question, it is necessary to have regard to the
special features of such an operation. These features are: first,
the operation will in most cases be irreversible; secondly, by
reason of the general irreversibility of the operation, the almost
certain result of it will be to deprive the woman concerned of
what is widely, and as I think rightly, regarded as one of the
fundamental rights of a woman, namely, the right to bear children;
thirdly, the deprivation of that right gives rise to moral and
emotional considerations to which many people attach great
importance; fourthly, if the question whether the operation is in
the best interests of the woman is left to be decided without the
involvement of the court, there may be a greater risk of it being
decided wrongly, or at least of it being thought to have been
decided wrongly; fifthly, if there is no involvement of the court,
there is a risk of the operation being carried out for improper
reasons or with improper motives; and, sixthly, involvement of the
court in the decision to operate, if that is the decision reached,
should serve to protect the doctor or doctors who perform the
operation, and any others who may be concerned in it, from
subsequent adverse criticisms or claims.
Having regard to all these matters, I am clearly of the
opinion that, although in the case of an operation of the kind
under discussion involvement of the court is not strictly necessary
as a matter of law, it is nevertheless highly desirable as a matter
of good practice.
– 6 –
There may be cases of other special operations to which
similar considerations would apply. I think it best, however, to
leave such other cases to be examined as and when they arise.
(2) The judisdiction of the court and the principles on which it
should be exercised
In the course of the argument in this appeal your Lordships
were invited to consider four kinds of jurisdiction by the exercise
of which the court might become involved in the decision whether
F. should be sterilised or not. These were: first, the parens
patriae jurisdiction; secondly, jurisdiction under Part VII of the
Mental Health Act 1983; thirdly, a jurisdiction which the Court of
Appeal considered could be exercised under appropriate
amendments to R.S.C., Ord. 80; and, fourthly, the jurisdiction to
make declarations. I shall examine each of these in turn.
I consider first the parens patriae jurisdiction. This is an
ancient prerogative jurisdiction of the Crown going back as far
perhaps as the thirteenth century. Under it the Crown as parens
patriae had both the power and the duty to protect the persons
and property of those unable to do so for themselves, a category
which included both minors (formerly described as infants) and
persons of unsound mind (formerly described as lunatics or idiots).
While the history of that jurisdiction and the manner of its
exercise from its inception until the present day is of the greatest
interest, I do not consider that it would serve any useful purpose
to recount it here. I say that because it was accepted by the
Court of Appeal and not challenged by any of the parties to the
appeal before your Lordships, that the present situation with
regard to the parens patriae jurisdiction was as follows. First, so
much of the parens patriae jurisdiction as related to minors
survives now in the form of the wardship jurisdiction of the High
Court, Family Division. Secondly, so much of the parens patriae
jurisdiction as related to persons of unsound mind no longer exists.
It ceased to exist as a result of two events both of which took
place on 1 November 1960. The first event was the coming into
force of the Mental Health Act 1959, section 1 of which provided:
“1. Subject to the transitional provisions contained in this
Act, the Lunacy and Mental Treatment Acts, 1890 to 1930,
and the Mental Deficiency Acts, 1913 to 1938, shall cease
to have effect, and the following provisions of this Act shall
have effect in lieu of those enactments with respect to the
reception, care and treatment of mentally disordered
patients, the management of their property, and other
matters related thereto.”
The second event was the revocation by Warrant under the Sign
Manual of the last Warrant dated 10 April 1956, by which the
jurisdiction of the Crown over the persons and property of those
found to be of unsound mind by inquisition had been assigned to
the Lord Chancellor and the judges of the High Court, Chancery
Division.
The effect of section 1 of the Act of 1959, together with
the Warrant of revocation referred to above, was to sweep away
the previous statutory and prerogative jurisdiction in lunacy,
leaving the law relating to persons of unsound mind to be governed
– 7 –
solely, so far as statutory enactments are concerned, by the
provisions of that Act. So far as matters not governed by those
provisions are concerned, the common law relating to persons of
unsound mind continued to apply. It follows that the parens
patriae jurisdiction with respect to persons of unsound mind is not
now available to be invoked in order to involve the court or a
judge in the decision about the sterilisation of F.
I consider, secondly, jurisdiction under Part VII of the
Mental Health Act 1983. That part of the Act has the heading
“Management of Property and Affairs of Patients” and comprises
sections 93 to 113. The question which has to be considered is
whether the expression “the affairs of patients,” as used in the
heading and various sections of Part VII, includes medical
treatment such as an operation for sterilisation. In order to
answer that question, it is necessary to examine the following
sections in Part VII which are mainly relevant to it:
“93. (1) The Lord Chancellor shall from time to time
nominate one or more judges of the Supreme Court … to
act for the purposes of this Part of this Act.
“(2) There shall continue to be an office of the Supreme
Court, called the Court of Protection, for the protection
and management, as provided by this Part of this Act, of
the property and affairs of persons under disability . . .
“95. (1) The judge may, with respect to the property and
affairs of a patient, do or secure the doing of all such
things as appear necessary or expedient –
(a) for the maintenance or other benefit of the
patient,
(b) for the maintenance or other benefit of members
of the patient’s family,
(c) for making provision for other persons or purposes
for whom or which the patient might be expected to
provide if he were not mentally disordered, or
(d) otherwise for administering the patient’s affairs.
“(2) In the exercise of the powers conferred by this
section regard shall be had first of all to the requirements
of the patient, and the rules of law which restricted the
enforcement by a creditor of rights against property under
the control of the judge in lunacy shall apply to property
under the control of the judge; but, subject to the foregoing
provisions of this subsection, the judge shall, in
administering a patient’s affairs, have regard to the
interests of creditors and also to the desirability of making
provision for obligations of the patient notwithstanding that
they may not be legally enforceable.
“96. (1) Without prejudice to the generality of section 95
above, the judge shall have power to make such orders and
give such directions and authorities as he thinks fit for the
purposes of that section and in particular may for those
purposes make orders or give directions or authorities for –
– 8 –
-
-
-
the control . . . and management of any property of
the patient; -
the sale, exchange, charging or other disposition of or
dealing with any property of the patient;
-
-
(c) the acquisition of any property in the name or on
behalf of the patient;
-
-
-
the settlement of any property of the patient, or the
gift of any property of the patient to any such
persons or for any such purposes as are mentioned in
paragraphs (b) and (c) of section 95(1) above; -
the execution for the patient of a will making any
provision . . . which could be made by a will
executed by the patient if he were not mentally
disordered; -
the carrying on by a suitable person of any
profession, trade or business of the patient; -
the dissolution of a partnership of which the patient
is a member;
-
-
(h) the carrying out of any contract entered into by the
patient;
(i) the conduct of legal proceedings in the name of the
patient or on his behalf;
(j) the reimbursement out of the property of the patient
. . . of money applied by any person either in
payment of the patient’s debts (whether legally
enforceable or not) or for the maintenance or other
benefit of the patient or members of his family . . .;
(k) the exercise of any power (including a power to
consent) vested in the patient, whether beneficially,
or as guardian or trustee, or otherwise.”
The expression “the affairs of patients,” taken by itself and
without regard to the context in which it appears, is, in my view,
capable of extending to medical treatment of patients other than
treatment for their mental disorder. There is further an obvious
attraction in construing that expression, as used in Part VII of the
Act of 1983, as having that extended meaning (“the wider
meaning”), since there would then be a judicial authority, namely,
a judge nominated under section 93(1), who would have statutory
power to authorise, or refuse to authorise, the sterilisation of an
adult woman of unsound mind such as F. There are two passages
in the sections of the Act set out above which, if they do not
expressly support the wider meaning, are at least consistent wih it.
The first is the passage in section 95(1)(a) “for the maintenance or
other benefit of the patient” (my emphasis). The second is the
passage in section 96(1)(k) “the exercise of any power (including a
power to consent) vested in the patient, whether beneficially, or as
guardian or trustee, or otherwise” (again my emphasis). It seems
– 9 –
to me, however, that, when one examines the general tenor of
Part VII of the Act, and more particularly the context in which
the two passages referred to above are to be found, the expression
“the affairs of patients” cannot properly be construed as having
the wider meaning. It must rather be construed as including only
business matters, legal transactions and other dealings of a similar
kind.
I would, therefore, hold that Part VII of the Act of 1983
does not confer on a judge nominated under section 93(1) any
jurisdiction to decide questions relating to the medical treatment
of a patient, such as the question of F.’s sterilisation in the
present case.
I consider, thirdly, the jurisdiction relied on by the Court of
Appeal. Lord Donaldson of Lymington M.R., reached the
conclusion that operations for the sterilisation of adult women,
disabled by mental disorder from giving their consent, as of
minors, were in a special category, and should not be performed
without the approval of the court (transcript pp. 19-21). He then
turned to the question of the procedure to be used for seeking
that approval and said, at pp. 21-23:
“This at once raised the question of how the court should be
consulted and what form its concurrence in the treatment of
the patient should take. Thus far, apart from the instant
case, there have been three occasions upon which proposed
abortion or sterilisation operations upon adults who were
incompetent to consent have been brought before the court
(In re T. The Times, 26 May 1987, per Latey J.; In re X.
The Times, 4 June 1987, per Reeve J.; and T. v. T. [1988]
Fam. 62, per Wood J.). In each case those who proposed
that the operation be carried out sought and obtained a
declaration that to do so would be lawful.
“For my part, I do not think that this is an appropriate
procedure. A declaration changes nothing. All that the
court is being asked to do is to declare that, had a course
of action been taken without resort to the court, it would
have been lawful anyway. In the context of the most
sensitive and potentially controversial forms of treatment
the public interest requires that the courts should give
express approval before the treatment is carried out and
thereby provide an independent and broad based ‘third
opinion.’ In the case of wards of court, the performance of
any such operation without first obtaining the approval of
the court would in any event constitute a very grave
contempt of court. In the case of other minors, the law
will impose a very heavy burden of justification upon those
who carry out the treatment without first ensuring that the
minors are made wards of court and the court’s consent
obtained. In the case of adults who are themselves
incompetent to consent, the law will impose an equally
heavy burden of justification if those who carry out the
treatment do not first seek a determination of the
lawfulness of the proposed treatment by enabling the court
to approve or to disapprove.
– 10 –
“As this problem has only recently arisen, there is no
specific procedure laid down for obtaining the court’s
approval. R.S.C., Ord. 80 is that which is concerned with
persons under a disability and there should be little
difficulty in framing a new rule under that Order prescribing
such a procedure. We trust that this will receive urgent
attention from the Lord Chancellor and the Supreme Court
Rule Committee.
“In the course of argument we were told that the Official
Solicitor knows of a small number of other cases in which it
is considered necessary that such an operation be performed
upon an adult patient, but in which the outcome of this
appeal has been awaited. Clearly it would not be right that
those patients should have to await the formulation and
enactment of a new procedural rule. Fortunately the court
has inherent jurisdiction to regulate its own proceedings
where the rules make no provision and, pending the
appearance of a new rule or a Practice Direction by the
President of the Family Division of the High Court, we will
direct as follows:
-
-
-
Applications for the court’s approval of medical or
surgical treatment where such approval is required
should be by way of originating summons issuing out
of the Family Division of the High Court. -
The applicant should normally be those responsible for
the care of the patient or those intending to carry
out the treatment, if it is approved. -
The patient must always be a party and should
normally be a respondent. In cases in which the
patient is a respondent the patient’s guardian ad litem
should normally be the Official Solicitor. In any
cases in which the Official Solicitor is not either the
next friend or the guardian ad litem of the patient or
an applicant he shall be a respondent. -
With a view to protecting the patient’s privacy, but
subject always to the judge’s discretion, the hearing
will be in chambers, but the decision and the reasons
for that decision will be given in open court.
-
-
“As the procedure adopted in this case accorded with what
at the time was thought to be appropriate and as the judge
investigated the matter fully and reached a decision, the
wisdom of which no one seeks to challenge, I would dismiss
the appeal.”
Neill L.J. said, at pp. 42-43:
“There are, however, some operations where the intervention
of a court is most desirable if not essential. In this
category I would place operations for sterilisation and organ
transplant operations where the incapacitated patient is to
be the donor. The performance of these operations should
be subject to outside scrutiny. The lawfulness of the
operation will depend of course on the question whether it
– 11 –
is necessary or not, but in my view it should become
standard practice for the approval of the court to be
obtained before an operation of this exceptional kind is
carried out. Thus it is of the greatest importance to
guard against any tendency for operations for sterilsation to
be performed as a matter of convenience or merely to ease
the burden of those who are responsible for looking after
the patient. Each case needs to be looked at with especial
care to ensure that the operation is indeed in the best
interests of the patient.
“I consider that a special form of procedure should be
provided so that the matter can be brought before the court
in the simplest way possible. A claim for a declaration
under R.S.C., Ord. 15, r. 16 is not a satisfactory form of
procedure because, if the claim were unopposed, as it often
would be, the proceedings would be open to the technical
objections that declarations are not in the ordinary way
made by consent nor where the defendant or respondent has
asserted no contrary claim. Nevertheless, the purpose of
the application to the court will be to satisfy the court that
the operation which is to be performed will be necessary
and lawful and the court’s approval will be sought on this
basis. If the court is so satisfied its decision will provide a
safeguard for those who carry out the operation and an
assurance to the public that the facts have been fully
investigated in a court of law. If the court is not so
satisfied, its approval will not be given and the operation
will not go ahead. Of course, if there was any possibility
that the operation was going to be proceeded with after
approval had been withheld – which would be extremely
unlikely – the court could grant an injunction. It may be
that the most convenient method of prescribing the
appropriate form of procedure will be by way of a new rule
under R.S.C,, Ord. 80 which is concerned with proceedings
relating to those under a disability.
“I have had the advantage of reading in draft the judgment
of Lord Donaldson of Lymington M.R. I agree with his
proposals as to how the proceedings should be constituted
and heard.”
Butler-Sloss L.J. said, at pp. 55-56:
“In my judgment, a decision as to sterilisation of a person
under a disability ought not to be left entirely to the
decision of the family and the medical profession alone.
Public policy requires that there should be imposed the
supervision of the courts in so important and delicate a
decision.
“In the previous cases . . . and in the present appeal the
mechanism has been by declaration under R.S.C., Ord. 15, r.
16. I agree that this is not an appropriate procedure. A
declaration cannot alter the existing position and the
granting of it at first instance may have limited efficacy in
any subsequent litigation. The court by a declaration alone
cannot give approval. The reverse application, an injunction,
is also limited in its usefulness and, other than the Official
– 12 –
Solicitor if notified, there may be no one with an interest
available to apply for it.
“There is at present no mechanism providing for the
approval of the court in the present case. It does, however,
exist in the sphere of property by R.S.C., Ord. 80 for
persons under a disbility and by analogy I see no reason in
principle why a rule should not be framed to prescribe such
a procedure. I respectfully agree with Lord Donaldson of
Lymington M.R. as to the procedure that he has set out in
his judgment and the participation of the Official Solicitor.
“Such a procedure is needed in those operations coming
within the special category which includes sterilisation, in
the public interest, in order to demonstrate that the
operation will or will not be lawful and to give or withhold
the approval of the court.”
My Lords, as I understand the judgments of all three
members of the Court of Appeal, they took the same view with
regard to the involvement of the court in a case such as F. as I
expressed earlier: namely, that, although such involvement is not
strictly necessary as a matter of law, it is highly desirable as a
matter of good practice. They went on, however, to say that the
court’s involvement should take the form of giving or refusing its
approval to the sterilisation operation proposed. They further
considered that the procedure to be used for the making and
determination of an application for approval could conveniently be
prescribed by a new rule under R.S.C., Ord. 80.
I recognise that such a form of proceeding, if it were open
to be adopted, would provide an admirable solution to the
procedural problem which arises. With respect to the Court of
Appeal, however, I cannot see how or on what basis the High
Court, or any court or judge, can have jurisdiction to approve or
disapprove a proposed operation. If the old parens patriae
jurisdiction were still available with respect to persons of unsound
mind, as it is with respect to minors who are wards, and if its
exercise could be conferred on the judges of the High Court,
Family Division, in the same way as the wardship jurisdiction has
been conferred on them, there would be no difficulty. For the
reasons which I gave earlier, however, the parens patriae
jurisdiction with respect to adults of unsound mind no longer
exists, and if that jurisdiction, or something comparable with it, is
to be re-created, then it must be for the legislature and not for
the courts to do the re-creating. Rules of Court can only, as a
matter of law, prescribe the practice and procedure to be followed
by the court when it is exercising a jurisdiction which already
exists. They cannot confer jurisdiction, and, if they purported to
do so, they would be ultra vires.
In my opinion, therefore, a jurisdiction to approve or
disapprove an operation, which the Court of Appeal considered to
be available to the High Court, and appropriate to be exercised in
the present case, does not exist.
I turn, fourthly and lastly, to the jurisdiction to make
declarations. I do not think that it is right to describe this
jurisdiction as being “under R.S.C., Ord. 15, r. 16.” The
– 13 –
jurisdiction is part of the inherent jurisdiction of the High Court,
and the rule does no more than say that there is no procedural
objection to an action being brought for a declaration whether any
other kind of relief is asked for or available or not.
There can, in my view, be no doubt that the High Court has
jurisdiction, in a case like the present one, to make a declaration
with regard to the lawfulness of an operation for sterilisation
proposed to be carried out. As appears, however, from the
passages in the judgments of the three members of the Court of
Appeal which I set out earlier, they all concluded that procedure
by way of declaration, though used in the present case and three
previous cases similar to it, was not a satisfactory procedure to be
adopted. Their grounds of objection were these. First, that a
declaration changes nothing (Lord Donaldson of Lymington M.R. at
pp. 21-22 and Butler-Sloss L.J. at p. 56). Secondly, that an
application for a declaration might be unopposed and it was not
the ordinary practice to grant declarations by consent or where
there is no contrary claim (Neill L.J. at p. 42). Thirdly, that the
public interest requires that the court should give express approval
to a proposed operation and a declaration does not have that
effect (Lord Donaldson of Lymington M.R. at p. 22, Neill L.J. at
p. 43 and Butler-Sloss L.J. at p. 56). Fourthly, that a declaration
granted at first instance may have limited efficacy in any
subsequent litigation (Butler-Sloss L.J. at p. 56).
With respect to all three members of the Court of Appeal, I
do not consider that these objections are well founded. The first
objection, that a declaration changes nothing would be valid if the
substantive law were that a proposed operation could not lawfully
be performed without the prior approval of the court. As I
indicated earlier, however, that is not, in my view the substantive
law, nor did the Court of Appeal, as I understand their judgments,
hold that it was. The substantive law is that a proposed operation
is lawful if it is in the best interests of the patient, and unlawful
if it is not. What is required from the court, therefore, is not an
order giving approval to the operation, so as to make lawful that
which would otherwise be unlawful. What is required from the
court is rather an order which establishes by judicial process (the
“third opinion” so aptly referred to by Lord Donaldson of
Lymington M.R.) whether the proposed operation is in the best
interests of the patient and therefore lawful, or not in the
patient’s best interests and therefore unlawful.
The second objection, that the application for a declaration
might be unopposed and it is not the ordinary practice to grant
declarations by consent or where there is no contrary claim, would
only be valid in the absence of appropriate rules of procedure
governing an application of the kind under discussion. The same
objection could be raised against the procedure by way of
application for approval of the proposed operation favoured by the
Court of Appeal, in the absence of rules of procedure such as
those propounded by Lord Donaldson of Lymington M.R. and agreed
to by Neill and Butler-Sloss L.JJ. I accept, of course, that no
such rules of procedure have so far been made. But even without
them, there would have to be a summons for directions, preferably
before a judge, and he could be relied on to ensure that the
application was not unopposed, and that all necessary evidence,
both for and against the proposed operation, were adduced before
the court at the hearing.
– 14 –The third objection, that the public interest requires that
the court should give express approval to a proposed operation and
that a declaration does not have that effect appears to be largely
semantic. By that I mean that, whichever of the two forms of
procedure, if both were available, were to be used, the nature of
the inquiry which would have to be made by the court, and of the
reasoned decision which it would be obliged to give after carrying
out that inquiry, would be substantially the same.
The fourth objection, that a declaration granted at first
instance may have limited efficacy in any subsequent litigation was
not the subject matter of any argument before your Lordships.
My provisional view is that, whatever procedure were to be used,
only the parties to the proceedings and their privies would be
bound by, or could rely on, the decision made. In practice,
however, I think that that would be enough.
For the reasons which I have given, I am of opinion that,
having regard to the present limitations on the jurisdiction of the
court, by which I mean its inability to exercise the parens patriae
jurisdiction with respect to adults of unsound mind, the procedure
by way of declaration is, in principle, an appropriate and
satisfactory procedure to be used in a case of this kind.
(3) Procedure to be used when applying for a declaration
The Court of Appeal, as I indicated earlier, considered that
the correct form of proceeding in a case of this kind was an
application to the court for approval of the proposed operation.
On that basis, as appears from a part of the judgment of Lord
Donaldson of Lymington M.R. which I quoted earlier, he formulated
certain directions numbered (1) to (4) (with which both Neill and
Butler-Sloss L.JJ. agreed) to govern such applications pending the
making of appropriate amendments to R.S.C., Ord. 80, by the
Supreme Court Rule Committee. On the basis of my conclusion
that the correct form of proceeding is an application for a
declaration, it seems to me that, subject to certain alterations in
the wording of directions (1) and (2), those directions would be
equally appropriate to the latter kind of proceeding. I would alter
directions (1) and (2) so as to read:-
“(1) Applications for a declaration that a proposed
operation on or medical treatment for a patient can lawfully
be carried out despite the inability of such patient to
consent thereto should be by way of originating summons
issuing out of the Family Division of the High Court.
(2) The applicant should normally be those responsible for
the care of the patient or those intending to carry out the
proposed operation or other treatment, if it is declared to
be lawful.”
I would leave directions (3) and (4) as they are.
Counsel for the intervener, the Mental Health Act
Commission for England and Wales, invited your Lordships to say
that further and more detailed directions with regard to evidence
and other matters should be added to directions (1) to (4) above.
– 15 –
In my opinion there will, in cases of this kind, have to be a
summons for directions heard by a judge, and it should be left to
him to decide on the hearing of such summons, whether any, and,
if so what, further and more detailed directions should be given in
the particular case before him.
I consider also that further consideration needs to be given,
first, to the precise terms in which a declaration should be
granted, and, secondly, to the question whether any order
supplementary to the declaration should be made.
The form of order and declaration made by Scott Baker J.
in the present case was this: “It is ordered and declared that
under the Rules of the Supreme Court Ord., 15, r. 16 the
sterilisation of the plaintiff would not amount to an unlawful act
by reason only of the absence of the plaintiff’s consent.” In my
view, three changes in the form of the order should be made.
First, for the reasons which I gave earlier, I think that the
reference to R.S.C., Ord. 15, r. 16 is unnecessary and should be
omitted. Secondly, I think that the declaration should be amplified
in two ways: (a) to show the finding of fact on the foundation of
which it is made; and (b) to make it clear that it is made on the
basis of existing circumstances only. Thirdly, I think that
provision should be made for the possibility of a change in the
existing circumstances occurring before the declaration is acted
upon. Taking account of these three matters I consider that the
order should be in the following form, or something broadly similar
to it:
“(a) It is declared that the operation of sterilisation
proposed to be performed on the plaintiff being in the
existing circumstances in her best interests can
lawfully be performed on her despite her inability to
consent to it.
“(b) It is ordered that in the event of a material change
in the existing circumstances occurring before the
said operation has been performed any party shall
have liberty to apply for such further or other
declaration or order as may be just.”
Your Lordships were referred by counsel in the course of
the hearing of the appeal to the way in which the problem raised
in this case has been dealt with in other countries, whose legal
systems were originally derived, to a large exent at any rate, from
the common law of England. These countries were the United
States of America, Canada and Australia, and a large file of
reported cases decided in them was made available, to some of
which specific reference was made. My Lords, the material so
supplied was of compelling interest, and it is right to express
gratitude to those concerned for the industry displayed in making
it available. In my view, however, the way in which the problem
has been dealt with in those other countries does not in the end
assist your Lordships to any great extent in the determination of
this appeal. This is because it is clear that, under their legal
systems, the parens patriae jurisdiction with respect to persons of
unsound mind is still alive and available for exercise by their
courts. It follows that those courts have powers to deal with the
problem concerned which are, unfortunately as I think, denied to
– 16 –
the courts here. In these circumstances I do not consider that it
would serve any useful purpose to examine and analyse this
extensive body of American, Canadian and Australian law, and I
trust that my omission to do so will not be regarded as indicating
disrespect of any kind toward the legal systems of those countries.
There is one further matter with which I think that it is
necessary to deal. That is the standard which the court should
apply in deciding whether a proposed operation is or is not in the
best interests of the patient. With regard to this Scott Baker J.
said, at p. 10 of the transcript:
“I do not think they [the doctors] are liable in battery
where they are acting in good faith and reasonably in the
best interests of their patients. I doubt whether the test is
very different from that for negligence.”
This was a reference to the test laid down in Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582, namely, that
a doctor will not be negligent if he establishes that he acted in
accordance with a practice accepted at the time by a responsible
body of medical opinion skilled in the particular form of treatment
in question.
All three members of the Court of Appeal considered that
the Bolam test was unsufficiently stringent for deciding whether an
operation or other medical treatment was in a patient’s best
interests. Lord Donaldson of Lymington M.R. said, at pp. 18-19 of
the transcript:
“Just as the law and the courts rightly pay great, but not
decisive, regard to accepted professional wisdom in relation
to the duty of care in the law of medical negligence (the
Bolam test), so they equally would have regard to such
wisdom in relation to decisions whether or not and how to
treat incompetent patients in the context of the law of
trespass to the person. However, both the medical
profession and the courts have to keep the special status of
such a patient in the forefront of their minds. The ability
of the ordinary adult patient to exercise a free choice in
deciding whether to accept or to refuse medical treatment
and to choose between treatments is not to be dismissed as
desirable but inessential. It is a crucial factor in relation
to all medical treatment. If it is necessarily absent,
whether temporarily in an emergency situation or
permanently in a case of mental disability, other things
being equal there must be greater caution in deciding
whether to treat and, if so, how to treat, although I do not
agree that this extends to limiting doctors to treatment
upon the necessity for which there are ‘no two views’ (per
Wood J. in T. v. T. [1988] Fam. 52, 62). There will always
or usually be a minority view and this approach, if strictly
applied, would often rule out all treatment. On the other
hand, the existence of a significant minority view would
constitute a serious contra-indication.”
Neill L.J. said, at pp. 40-41:
– 17 –
“I have therefore come to the conclusion that, if the
operation is necessary and the proper safeguards are
observed, the performance of a serious operation, including
an operation for sterilisation, on a person who by reason of
a lack of mental capacity is unable to give his or her
consent is not a trespass to the person or otherwise
unlawful.
“It therefore becomes necessary to consider what is meant
by ‘a necessary operation.’ In seeking to define the
circumstances in which an operation can properly be carried
out Scott Baker J. said this:
‘I do not think they are liable in battery where they
are acting in good faith and reasonably in the best
interests of their patients. I doubt whether the test
is very different from that for negligence.’
“With respect, I do not consider that this test is sufficiently
stringent. A doctor may defeat a claim in negligence if he
establishes that he acted in accordance with a practice
accepted at the time as proper by a responsible body of
medical opinion skilled in the particular form of treatment
in question. This is the test laid down in Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582. But
to say that it is not negligent to carry out a particular
form of treatment does not mean that that treatment is
necessary. I would define necessary in this context as that
which the general body of medical opinion in the particular
specialty would consider to be in the best interests of the
patient in order to maintain the health and to secure the
well-being of the patient. One cannot expect unanimity but
it should be possible to say of an operation which is
necessary in the relevant sense that it would be
unreasonable in the opinion of most experts in the field not
to make the operation available to the patient. One must
consider the alternatives to an operation and the dangers or
disadvantages to which the patient may be exposed if no
action is taken. The question becomes: What action does
the patient’s health and welfare require?”
Butler-Sloss L.J., at p. 57, agreed with Neill L.J.
With respect to the Court of Appeal, I do not agree that
the Bolam test is inapplicable to cases of performing operations
on, or giving other treatment to, adults incompetent to give
consent. In order that the performance of such operations on, and
the giving of such other treatment to, such adults should be
lawful, they must be in their best interests. If doctors were to be
required, in deciding whether an operation or other treatment was
in the best interests of adults incompetent to give consent, to
apply some test more stringent than the Bolam test, the result
would be that that such adults would, in some circumstances at
least, be deprived of the benefit of medical treatment which
adults competent to give consent would enjoy. In my opinion it
would be wrong for the law, in its concern to protect such adults,
to produce such a result.
– 18 –
For the reasons which I have given I would dismiss the
appeal, subject to varying the order of Scott Baker J. by
substituting for the declaration made by him the amplified
declaration and further order which I formulated earlier.
LORD GRIFFITHS
My Lords,
The argument in this appeal has ranged far and wide in
search of a measure to protect those who cannot protect
themselves from the insult of an unnecessary sterilisation. Every
judge who has considered the problem has recognised that there
should be some control mechanism imposed upon those who have
the care of infants or mentally incompetent women of child
bearing age to prevent or at least inhibit them from sterilising the
women without approval of the High Court. I am, I should make
it clear, speaking now and hereafter of an operation for
sterilisation which is proposed not for the treatment of diseased
organs but an operation on a woman with healthy reproductive
organs in order to avoid the risk of pregancy. The reasons for the
anxiety about a sterilisation which it is proposed should be carried
out for other than purely medical reasons, such as the removal of
the ovaries to prevent the spread of cancer, are readily
understandable and are shared throughout the common law world.
We have been taken through many authorities in the United
States, Australia and Canada which stress the danger that
sterilisation may be proposed in circumstances which are not truly
in the best interests of the woman but for the convenience of
those who are charged with her care. In the United States and
Australia the solution has been to declare, that in the case of a
woman who either because of infancy or mental incompetence
cannot give her consent, the operation may not be performed
without the consent of the court. In Canada the Supreme Court
has taken an even more extreme stance and declared that
sterilisation is unlawful unless performed for therapeutic reasons,
which I understand to be as a life saving measure or for the
prevention of the spread of disease: see In re Eve (1986) 31 D.L.R.
(4th) 1. This extreme position was rejected by this House In re B.
(A Minor) (Wardship: Sterilisation) [1988] A.C. 199 which recognised
that an operation might be in the best interests of a woman even
though carried out in order to protect her from the trauma of a
pregnancy which she could not understand and with which she
could not cope. Nevertheless Lord Templeman stressed that such
an operation should not be undertaken without the approval of a
High Court judge of the Family Division. In this country the case
of In re D. (A Minor) (Wardship: Sterilisation) [1976] Fam. 185
stands as a stark warning of the danger of leaving the decision to
sterilise in the hands of those having the the immediate care of
the woman, even when they genuinely believe that they are acting
in her best interests.
I have had the advantage of reading the speeches of Lord
Brandon of Oakbrook and Lord Goff of Chieveley and there is
– 19 –
much therein with which I agree. I agree that those charged with
the care of the mentally incompetent are protected from any
criminal or tortious action based on lack of consent. Whether one
arrives at this conclusion by applying a principle of “necessity” as
do Lord Goff of Chieveley and Lord Brandon of Oakbrook or by
saying that it is in the public interest as did Neill L.J. in the
Court of Appeal, appear to me to be inextricably interrelated
conceptual justifications for the humane development of the
common law. Why is it necessary that the mentally incompetent
should be given treatment to which they lack the capacity to
consent? The answer must surely be because it is in the public
interest that it should be so.
In a civilised society the mentally incompetent must be
provided with medical and nursing care and those who look after
them must do their best for them. Stated in legal terms the
doctor who undertakes responsibility for the treatment of a mental
patient who is incapable of giving consent to treatment must give
the treatment that he considers to be in the best interests of his
patient, and the standard of care required of the doctor will be
that laid down in Bolam v. Friern Hospital Management Committee
[1957] 1 W.L.R. 582. The doctor will however be subject to the
specific statutory constraints on treatment for mental disorder
provided by Part IV of the Mental Health Act 1983. Certain
radical treatments such as surgical destruction of brain tissue
cannot be performed without the consent of the patient and if the
patient is incapable of giving consent the operation cannot be
performed, however necessary it may be considered by the doctors.
Other less radical treatment can only be given with the consent of
the patient, or if the patient will not or cannot consent, on the
authority of a second medical opinion. There are however no
statutory provisions that deal with sterilisation.
I agree with Lord Brandon’s analysis of the provisions of the
Mental Health Act 1983 and in particular that in its context the
expression “the affairs of patients” in Part VII cannot be construed
as including medical treatment and thus providing a substitute for
the parens patriae jurisdiction previously vested in the Lord
Chancellor and the judges of the High Court, Chancery Division,
which was removed by warrant under Sign Manual dated 1
November 1960, contemporaneously with the passing of the Mental
Health Act 1959.
Finally I agree that an action for a declaration is available
as a mechanism by which a proposed sterilisation may be
investigated to ensure that it is in the woman’s best interests.
But I cannot agree that it is satisfactory to leave this grave
decision with all its social implications in the hands of those
having the care of the patient with only the expectation that they
will have the wisdom to obtain a declaration of lawfulness before
the operation is performed. In my view the law ought to be that
they must obtain the approval of the court before they sterilise a
woman incapable of giving consent and that it is unlawful to
sterilise without that consent. I believe that it is open to your
Lordships to develop a common law rule to this effect. Although
the general rule is that the individual is the master of his own
fate the judges through the common law have, in the public
interest, imposed certain contraints on the harm that people may
– 20 –
consent to being inflicted on their own bodies. Thus although
boxing is a legal sport a bare knuckle prize fight in which more
grievous injury may be inflicted is unlawful (Reg. v. Coney (1882)
8 Q.B.D. 534), and so is fighting which may result in actual bodily
harm: see Attorney General’s Reference (No. 6 of 1980) [1981]
Q.B. 715. So also is it unlawful to consent to the infliction of
serious injury on the body in the course of the practice of sexual
perversion Rex v. Donovan [1934] 2 K.B. 498. Suicide was
unlawful at common law until Parliament intervened by the Suicide
Act 1961.
The common law has, in the public interest, been developed
to forbid the infliction of injury on those who are fully capable of
consenting to it. The time has now come for a further
development to forbid, again in the public interest, the sterilisation
of a woman with healthy reproductive organs who, either through
mental incompetence or youth, is incapable of giving her fully
informed consent unless such an operation has been enquired into
and sanctioned by the High Court. Such a common law rule would
provide a more effective protection than the exercise of parens
patriae jurisdiction which is dependent upon some interested party
coming forward to invoke the jurisdiction of the court. The
parens patriae jurisdiction is in any event now only available in
the case of minors through their being made wards of court. I
would myself declare that on grounds of public interest an
operation to sterilise a woman incapable of giving consent either
on grounds of age or mental incapacity is unlawful if performed
without the consent of the High Court. I fully recognise that in
so doing I would be making new law. However the need for such
a development has been identified in a number of recent cases and
in the absence of any parliamentary response to the problem it is
my view that the judges can and should accept responsibility to
recognise the need and to adapt the common law to meet it. If
such a development did not meet with public approval it would
always be open to Parliament to reverse it or to alter it by
perhaps substituting for the opinion of the High Court judge the
second opinion of another doctor as urged by counsel for the
Mental Health Tribunal.
As I know that your Lordships consider that it is not open
to you to follow the course I would take I must content myself by
accepting, but as second best, the procedure by way of declaration
proposed by Lord Brandon of Oakbrook and agree to the dismissal
of this appeal.
LORD GOFF OF CHIEVELEY
My Lords,
The question in this case is concerned with the lawfulness
of a proposed operation of sterilisation upon the plaintiff F., a
woman of 36 years of age, who by reason of her mental incapacity
is disabled from giving her consent to the operation. It is well
established that, as a general rule, the performance of a medical
operation upon a person without his or her consent is unlawful, as
constituting both the crime of battery and the tort of trespass to
– 21 –
the person. Furthermore, before Scott Baker J. and the Court of
Appeal, it was common ground between the parties that there was
no power in the court to give consent on behalf of F. to the
proposed operation of sterilisation, or to dispense with the need
for such consent. This was because it was common ground that
the parens patriae jurisdiction in respect of persons suffering from
mental incapacity, formerly vested in the courts by Royal Warrant
under the Sign Manual, had ceased to be so vested by revocation
of the last warrant on 1 November 1960; and further that there
there was no statutory provision which could be invoked in its
place. Before your Lordships, having regard to the importance of
the matter, both those propositions were nevertheless subjected to
close scrutiny, and Mr. Munby (for the Official Solicitor) deployed,
with great ability, such arguments as can be advanced that the
parens patriae jurisdiction is still vested in the courts as a matter
of common law, and that the necessary statutory jurisdiction is to
be found in Part VII of the Mental Health Act 1983, and in
particular in sections 93, 95 and 96 of the Act. However, with
the assistance of counsel, I for my part have become satisfied that
the concessions made below on these points were rightly made.
On both points I find myself to be respectfully in agreement with
the opinion expressed by my noble and learned friend, Lord
Brandon of Oakbrook, and I do not think it necessary for me to
add anything.
It follows that, as was recognised in the courts below, if
the operation upon F. is to be justified, it can only be justified on
the applicable principles of common law. The argument of counsel
revealed the startling fact that there is no English authority on
the question whether as a matter of common law (and if so in
what circumstances) medical treatment can lawfully be given to a
person who is disabled by mental incapacity from consenting to it.
Indeed, the matter goes further; for a comparable problem can
arise in relation to persons of sound mind who are, for example,
rendered unconscious in an accident or rendered speechless by a
catastrophic stroke. All such persons may require medical
treatment and, in some cases, surgical operations. All may require
nursing care. In the case of mentally disordered persons, they
may require care of a more basic kind – dressing, feeding, and so
on – to assist them in their daily life, as well as routine
treatment by doctors and dentists. It follows that, in my opinion,
it is not possible to consider in isolation the lawfulness of the
proposed operation of sterilisation in the present case. It is
necessary first to ascertain the applicable common law principles
and then to consider the question of sterilisation against the
background of those principles.
Mr. Munby, for the Official Solicitor, advanced the extreme
argument that, in the absence of a parens patriae or statutory
jurisdiction, no such treatment or care of the kind I have
described can lawfully be given to a mentally disordered person
who is unable to consent to it. This is indeed a startling
proposition, which must also exclude treatment or care to persons
rendered unconscious or unable to speak by accident or illness.
For centuries, treatment and care must have been given to such
persons, without any suggestion that it was unlawful to do so. I
find it very difficult to believe that the common law is so
deficient as to be incapable of providing for so obvious a need.
Even so, it is necessary to examine the point as a matter of
principle.
– 22 –
I start with the fundamental principle, now long established,
that every person’s body is inviolate. As to this, I do not wish to
depart from what I myself said in the judgment of the Divisional
Court in Collins v. Wilcock [1984] 1 W.L.R. 1172, and in particular
from the statement, at p. 1177, that the effect of this principle is
that everybody is protected not only against physical injury but
against any form of physical molestation.
Of course, as a general rule physical interference with
another person’s body is lawful if he consents to it; though in
certain limited circumstances the public interest may require that
his consent is not capable of rendering the act lawful. There are
also specific cases where physical interference without consent
may not be unlawful – chastisement of children, lawful arrest,
self-defence, the prevention of crime, and so on. As I pointed out
in Collins v. Wilcock [1984] 1 W.L.R. 1172, 1177, a broader
exception has been created to allow for the exigencies of everyday
life – jostling in a street or some other crowded place, social
contact at parties, and such like. This exception has been said to
be founded on implied consent, since those who go about in public
places, or go to parties, may be taken to have impliedly consented
to bodily contact of this kind. Today this rationalisation can be
regarded as artificial; and in particular, it is difficult to impute
consent to those who, by reason of their youth or mental disorder,
are unable to give their consent. For this reason, I consider it
more appropriate to regard such cases as falling within a general
exception embracing all physical contact which is generally
acceptable in the ordinary conduct of everyday life.
In the old days it used to be said that, for a touching of
another’s person to amount to a battery, it had to be a touching
“in anger” (see Cole v. Turner (1704) 6 Mod. 149 per Holt C.J.);
and it has recently been said that the touching must be “hostile”
to have that effect (see Wilson v. Pringle [1987] QB 237, 253). I
respectfully doubt whether that is correct. A prank that gets out
of hand; an over-friendly slap on the back; surgical treatment by a
surgeon who mistakenly thinks that the patient has consented to it
– all these things may transcend the bounds of lawfulness, without
being characterised as hostile. Indeed the suggested qualification
is difficult to reconcile with the principle that any touching of
another’s body is, in the absence of lawful excuse, capable of
amounting to a battery and a trespass. Furthermore, in the case
of medical treatment, we have to bear well in mind the libertarian
principle of self-determination which, to adopt the words of
Cardozo J. (in Schloendorff v. Society of New York Hospital (1913)
105 N.E. 92, 93) recognises that:
“Every human being of adult years and sound mind has a
right to determine what shall be done with his own body,
and a surgeon who performs an operation without the
patient’s consent commits an assault.”
This principle has been reiterated in more recent years by Lord
Reid in S. v. McC. (orse. S.) and M. (D.S. intervened; W. v. W.
[1972] A.C. 24, 43.
It is against this background that I turn to consider the
question whether, and if so when, medical treatment or care of a
– 23 –
mentally disordered person who is, by reason of his incapacity,
incapable of giving his consent, can be regarded as lawful. As is
recognised in Cardozo J.’s statement of principle, and elsewhere
(see e.g. Sidaway v. Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital [1985] AC 871, 882 per Lord
Scarman), some relaxation of the law is required to accommodate
persons of unsound mind. In Wilson v. Pringle, the Court of
Appeal considered that treatment or care of such persons may be
regarded as lawful, as falling within the exception relating to
physical contact which is generally acceptable in the ordinary
conduct of everyday life. Again, I am with respect unable to
agree. That exception is concerned with the ordinary events of
everyday life – jostling in public places and such like – and affects
all persons, whether or not they are capable of giving their
consent. Medical treatment – even treatment for minor ailments –
does not fall within that category of events. The general rule is
that consent is necessary to render such treatment lawful. If such
treatment administered without consent is not to be unlawful, it
has to be justified on some other principle.
Upon what principle can medical treatment be justified when
given without consent? We are searching for a principle upon
which, in limited circumstances, recognition may be given to a
need, in the interests of the patient, that treatment should be
given to him in circumstances where he is (temporarily or
permanently) disabled from consenting to it. It is this criterion of
a need which points to the principle of necessity as providing
justification.
That there exists in the common law a principle of
necessity which may justify action which would otherwise be
unlawful is not in doubt. But historically the principle has been
seen to be restricted to two groups of cases, which have been
called cases of public necessity and cases of private necessity.
The former occurred when a man interfered with another man’s
property in the public interest – for example (in the days before
we could dial 999 for the fire brigade) the destruction of another
man’s house to prevent the spread of a catastrophic fire, as indeed
occurred in the Great Fire of London in 1666. The latter cases
occurred when a man interfered with another’s property to save
his own person or property from imminent danger – for example,
when he entered upon his neighbour’s land without his consent, in
order to prevent the spread of fire onto his own land.
There is, however, a third group of cases, which is also
properly described as founded upon the principle of necessity and
which is more pertinent to the resolution of the problem in the
present case. These cases are concerned with action taken as a
matter of necessity to assist another person without his consent.
To give a simple example, a man who seizes another and forcibly
drags him from the path of an oncoming vehicle, thereby saving
him from injury or even death, commits no wrong. But there are
many emanations of this principle, to be found scattered through
the books. These are concerned not only with the preservation of
the life or health of the assisted person, but also with the
preservation of his property (sometimes an animal, sometimes an
ordinary chattel) and even to certain conduct on his behalf in the
administration of his affairs. Where there is a pre-existing
relationship between the parties, the intervenor is usually said to
– 24 –
act as an agent of necessity on behalf of the principal in whose
interests he acts, and his action can often, with not too much
artificiality, be referred to the pre-existing relationship between
them. Whether the intervenor may be entitled either to
reimbursement or to remuneration raises separate questions which
are not relevant in the present case.
We are concerned here with action taken to preserve the
life, health or well-being of another who is unable to consent to
it. Such action is sometimes said to be justified as arising from
an emergency; in Prosser and Keeton on Torts, 5th edition, p. 117,
the action is said to be privileged by the emergency. Doubtless,
in the case of a person of sound mind, there will ordinarily have
to be an emergency before such action taken without consent can
be lawful; for otherwise there would be an opportunity to
communicate with the assisted person and to seek his consent.
But this is not always so; and indeed the historical origins of the
principle of necessity do not point to emergency as such as
providing the criterion of lawful intervention without consent. The
old Roman doctrine of negotiorum gestio presupposed not so much
an emergency as a prolonged absence of the dominus from home
as justifying intervention by the gestor to administer his affairs.
The most ancient group of cases in the common law, concerned
with action taken by the master of a ship in distant parts in the
interests of the shipowner, likewise found its origin in the
difficulty of communication with the owner over a prolonged
period of time – a difficulty overcome today by modern means of
communication. In those cases, it was said that there had to be
an emergency before the master could act as agent of necessity;
though the emergency could well be of some duration. But when
a person is rendered incapable of communication either
permanently or over a considerable period of time (through illness
or accident or mental disorder), it would be an unusual use of
language to describe the case as one of “permanent emergency” –
if indeed such a state of affairs can properly be said to exist. In
truth, the relevance of an emergency is that it may give rise to a
necessity to act in the interests of the assisted person, without
first obtaining his consent. Emergency is however not the
criterion or even a pre-requisite; it is simply a frequent origin of
the necessity which impels intervention. The principle is one of
necessity, not of emergency.
We can derive some guidance as to the nature of the
principle of necessity from the cases on agency of necessity in
mercantile law. When reading those cases, however, we have to
bear in mind that it was there considered that (since there was a
pre-existing relationship between the parties) there was a duty on
the part of the agent to act on his principal’s behalf in an
emergency. From these cases it appears that the principle of
necessity connotes that circumstances have arisen in which there is
a necessity for the agent to act on his principal’s behalf at a time
when it is in practice not possible for him to obtain his principal’s
instructions so to do. In such cases, it has been said that the
agent must act bona fide in the interests of his principal (see
Prager v. Blatspiel Stamp & Heacock Ltd. [1924] 1 K.B. 566, 572
per McCardie J.). A broader statement of the principle is to be
found in the advice of the Privy Council delivered by Sir Montague
Smith in Australasian Steam Navigation Co. v. Morse (1872) L.R. 4
P.C 222, 230, in which he said:
– 25 –
“… when by the force of circumstances a man has the
duty cast upon him of taking some action for another, and
under that obligation, adopts the course which, to the
judgment of a wise and prudent man, is apparently the best
for the interest of the persons for whom he acts in a given
emergency, it may properly be said of the course so taken,
that it was, in a mercantile sense, necessary to take it.”
In a sense, these statements overlap. But from them can be
derived the basic requirements, applicable in these cases of
necessity, that, to fall within the principle, not only (1) must there
be a necessity to act when it is not practicable to communicate
with the assisted person, but also (2) the action taken must be
such as a reasonable person would in all the circumstances take,
acting in the best interests of the assisted person.
On this statement of principle, I wish to observe that
officious intervention cannot be justified by the principle of
necessity. So intervention cannot be justified when another more
appropriate person is available and willing to act; nor can it be
justified when it is contrary to the known wishes of the assisted
person, to the extent that he is capable of rationally forming such
a wish. On the second limb of the principle, the introduction of
the standard of a reasonable man should not in the present context
be regarded as materially different from that of Sir Montague
Smith’s “wise and prudent man,” because a reasonable man would,
in the time available to him, proceed with wisdom and prudence
before taking action in relation to another man’s person or
property without his consent. I shall have more to say on this
point later. Subject to that, I hesitate at present to indulge in
any greater refinement of the principle, being well aware of many
problems which may arise in its application – problems which it is
not necessary, for present purposes, to examine. But as a general
rule, if the above criteria are fulfilled, interference with the
assisted person’s person or property (as the case may be) will not
be unlawful. Take the example of a railway accident, in which
injured passengers are trapped in the wreckage. It is this principle
which may render lawful the actions of other citizens – railway
staff, passengers or outsiders – who rush to give aid and comfort
to the victims: the surgeon who amputates the limb of an
unconscious passenger to free him from the wreckage; the
ambulance man who conveys him to hospital; the doctors and
nurses who treat him and care for him while he is still
unconscious. Take the example of an elderly person who suffers a
stroke which renders him incapable of speech or movement. It is
by virtue of this principle that the doctor who treats him, the
nurse who cares for him, even the relative or friend or neighbour
who comes in to look after him, will commit no wrong when he or
she touches his body.
The two examples I have given illustrate, in the one case,
an emergency, and in the other, a permanent or semi-permanent
state of affairs. Another example of the latter kind is that of a
mentally disordered person who is disabled from giving consent. I
can see no good reason why the principle of necessity should not
be applicable in his case as it is in the case of the victim of a
stroke. Furthermore, in the case of a mentally disordered person,
as in the case of a stroke victim, the permanent state of affairs
calls for a wider range of care than may be requisite in an
– 26 –
emergency which arises from accidental injury. When the state of
affairs is permanent, or semi-permanent, action properly taken to
preserve the life, health or well-being of the assisted person may
well transcend such measures as surgical operation or substantial
medical treatment and may extend to include such humdrum
matters as routine medical or dental treatment, even simple care
such as dressing and undressing and putting to bed.
The distinction I have drawn between cases of emergency,
and cases where the state of affairs is (more or less) permanent,
is relevant in another respect. We are here concerned with
medical treatment, and I limit myself to cases of that kind.
Where, for example, a surgeon performs an operation without his
consent on a patient temporarily rendered unconscious in an
accident, he should do no more than is reasonably required, in the
best interests of the patient, before he recovers consciousness. I
can see no practical difficulty arising from this requirement, which
derives from the fact that the patient is expected before long to
regain consciousness and can then be consulted about longer term
measures. The point has however arisen in a more acute form
where a surgeon, in the course of an operation, discovers some
other condition which, in his opinion, requires operative treatment
for which he has not received the patient’s consent. In what
circumstances he should operate forthwith, and in what
circumstances he should postpone the further treatment until he
has received the patient’s consent, is a difficult matter which has
troubled the Canadian Courts (see Marshall v. Curry [1933] 3
D.L.R. 260, and Murray v. McMurchy [1949] 2 D.L.R. 442), but
which it is not necessary for your Lordships to consider in the
present case.
But where the state of affairs is permanent or semi-
permanent, as may be so in the case of a mentally disordered
person, there is no point in waiting to obtain the patient’s consent.
The need to care for him is obvious; and the doctor must then act
in the best interests of his patient, just as if he had received his
patient’s consent so to do. Were this not so, much useful
treatment and care could, in theory at least, be denied to the
unfortunate. It follows that, on this point, I am unable to accept
the view expressed by Neill L.J. in the Court of Appeal, that the
treatment must be shown to have been necessary. Moreover, in
such a case, as my noble and learned friend Lord Brandon of
Oakbrook has pointed out, a doctor who has assumed responsibility
for the care of a patient may not only be treated as having the
patient’s consent to act, but may also be under a duty so to act.
I find myself to be respectfully in agreement with Lord Donaldson
of Lymington M.R., when he said:
“I see nothing incongruous in doctors and others who have a
caring responsibility being required, when acting in relation
to an adult who is incompetent, to exercise a right of
choice in exactly the same way as would the court or
reasonable parents in relation to a child, making due
allowance, of course, for the fact that the patient is not a
child, and I am satisfied that that is what the law does in
fact require.”
In these circumstances, it is natural to treat the deemed authority
and the duty as interrelated. But I feel bound to express my
– 27 –
opinion that, in principle, the lawfulness of the doctor’s action is,
at least in its origin, to be found in the principle of necessity.
This can perhaps be seen most clearly in cases where there is no
continuing relationship between doctor and patient. The “doctor in
the house” who volunteers to assist a lady in the audience who,
overcome by the drama or by the heat in the theatre, has fainted
away, is impelled to act by no greater duty than that imposed by
his own Hippocratic oath. Furthermore, intervention can be
justified in the case of a non-professional, as well as a
professional, man or woman who has no pre-existing relationship
with the assisted person – as in the case of a stranger who rushes
to assist an injured man after an accident. In my opinion, it is
the necessity itself which provides the justification for the
intervention.
I have said that the doctor has to act in the best interests
of the assisted person. In the case of routine treatment of
mentally disordered persons, there should be little difficulty in
applying this principle. In the case of more serious treatment, I
recognise that its application may create problems for the medical
profession; however, in making decisions about treatment, the
doctor must act in accordance with a responsible and competent
body of relevant professional opinion, on the principles set down in
Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R.
582. No doubt, in practice, a decision may involve others besides
the doctor. It must surely be good practice to consult relatives
and others who are concerned with the care of the patient,
Sometimes, of course, consultation with a specialist or specialists
will be required; and in others, especially where the decision
involves more than a purely medical opinion, an inter-disciplinary
team will in practice participate in the decision. It is very
difficult, and would be unwise, for a court to do more than to
stress that, for those who are involved in these important and
sometimes difficult decisions, the over-riding consideration is that
they should act in the best interests of the person who suffers
from the misfortune of being prevented by incapacity from
deciding for himself what should be done to his own body, in his
own best interests.
In the present case, your Lordships have to consider whether
the foregoing principles apply in the case of a proposed operation
of sterilisation upon an adult woman of unsound mind, or whether
sterilisation is (perhaps with one or two other cases) to be placed
in a separate category to which special principles apply. Again,
Mr. Munby assisted your Lordships by deploying the argument that,
in the absence of any parens patriae jurisdiction, sterilisation of an
adult woman of unsound mind, who by reason of her mental
incapacity is unable to consent, can never be lawful. He founded
his submission upon a right of reproductive autonomy or right to
control one’s own reproduction, which necessarily involves the right
not to be sterilised involuntarily; upon the fact that sterilisation
involves irreversible interference with the patient’s most important
organs; upon the fact that it involves interference with organs
which are functioning normally; upon the fact that sterilisation is
a topic upon which medical views are often not unanimous; and
upon the undesirability, in the case of a mentally disordered
patient, of imposing a “rational” solution upon an incompetent
patient. Having considered these submissions with care, I am of
the opinion that neither singly nor as a whole do they justify the
– 28 –
conclusion for which Mr. Munby contended. Even so, while
accepting that the principles which I have stated are applicable in
the case of sterilisation, the matters relied upon by Mr. Munby
provide powerful support for the conclusion that the application of
those principles in such a case calls for special care. There are
other reasons which support that conclusion. It appears, for
example, from reported cases in the United States that there is a
fear that those responsible for mental patients might (perhaps
unwittingly) seek to have them sterilised as a matter of
administrative convenience. Furthermore, the English case of In re
D. (A Minor) (Wardship): Sterilisation) [1976] Fam. 185 provides a
vivid illustration of the fact that a highly qualified medical
practitioner, supported by a caring mother, may consider it right
to sterilise a mentally retarded girl in circumstances which prove,
on examination, not to require such an operation in the best
interests of the girl. Matters such as these, coupled with the
fundamental nature of the patient’s organs with which it is
proposed irreversibly to interfere, have prompted courts in the
United States and in Australia to pronounce that, in the case of a
person lacking the capacity to consent, such an operation should
only be permitted with the consent of the court. Such decisions
have of course been made by courts which have vested in them
the parens patriae jurisdiction, and so have power, in the exercise
of such jurisdiction, to impose such a condition. They are not
directly applicable in this country, where that jurisdiction has been
revoked; for that reason alone I do not propose to cite passages
from the American and Australian cases although, like my noble
and learned friend, Lord Brandon of Oakbrook, I have read the
judgments with great respect and found them to be of compelling
interest. I refer in particular to In re Grady (1981) 426 A. 2d.
467 in the United States; and, in Australia, to the very full and
impressive consideration of the matter by Nicholson C.J. in In re
Jane, 22 December 1988 (as yet unreported), who in particular
stressed the importance of independent representation by some
disinterested third party on behalf of the patient (there a minor).
Although the parens patriae jurisdiction in the case of adults
of unsound mind is no longer vested in courts in this country, the
approach adopted by the courts in the United States and in
Australia provides, in my opinion, strong support for the view that,
as a matter of practice, the operation of sterilisation should not
be performed on an adult person who lacks the capacity to consent
to it without first obtaining the opinion of the court that the
operation is, in the circumstances, in the best interests of the
person concerned, by seeking a declaration that the operation is
lawful. (I shall return later in this speech to the appropriateness
of the declaratory remedy in cases such as these). In my opinion,
that guidance should be sought in order to obtain an independent,
objective and authoritative view on the lawfulness of the procedure
in the particular circumstances of the relevant case, after a
hearing at which it can be ensured that there is independent
representation on behalf of the person upon whom it is proposed to
perform the operation. This approach is consistent with the
opinion expressed by Lord Templeman in In re B (A Minor)
(Wardship: Sterilisation) [1988] A.C. 199, 205-206, that, in the
case of a girl who is still a minor, sterilisation should not be
performed upon her unless she has first been made a ward of
court and the court has, in the exercise of its wardship
jurisdiction, given its authority to such a step. He said:
– 29 –
“No one has suggested a more satisfactory tribunal or a
more satisfactory method of reaching a decision which
vitally concerns an individual but also involves principles of
law, ethics and medical practice.”
I recognise that the requirement of a hearing before a court is
regarded by some as capable of deterring certain medical
practitioners from advocating the procedure of sterilisation; but I
trust and hope that it may come to be understood that court
procedures of this kind, conducted sensitively and humanely by
judges of the Family Division, so far as possible and where
appropriate in the privacy of chambers, are not to be feared by
responsible practitioners.
It was urged before your Lordships by Mr. Ouseley, on
behalf of the Mental Health Act Commission (the Commission
having been given leave to intervene in the proceedings), that a
court vested with the responsibility of making a decision in such a
case, having first ensured that an independent second opinion has
been obtained from an appropriate consultant of the appropriate
speciality, should not, if that second opinion supports the proposal
that sterilisation should take place, exercise any independent
judgment but should simply follow the opinion so expressed. For
my part, I do not think that it is possible or desirable for a court
so to exercise its jurisdiction. In all proceedings where expert
opinions are expressed, those opinions are listened to with great
respect; but, in the end, the validity of the opinion has to be
weighed and judged by the court. This applies as much in cases
where the opinion involves a question of judgment as it does in
those where it is expressed on a purely scientific matter. For a
court automatically to accept an expert opinion, simply because it
is concurred in by another appropriate expert, would be a denial of
the function of the court. Furthermore, the proposal of the
Commission is impossible to reconcile with the American and
Australian authorities which stress the need for a court decision
after a hearing which involves separate representation on behalf of
the person upon whom it is proposed to perform the operation.
Having said this, I do not feel that the Commission need fear that
the opinions of the experts will in any way be discounted. On the
contrary, they will be heard with the greatest respect; and, as the
present case shows, there is a high degree of likelihood that they
will be accepted.
I turn finally to the question of the procedure adopted in
the present case, in which a declaration is sought. The relief
claimed by the plaintiff in these proceedings is a declaration that
to effect a sterilisation will not amount to an unlawful act by
reason only of the absence of the plaintiff’s consent. Scott Baker
J. granted the declaration as asked. The Court of Appeal
dismissed the appeal and affirmed the order of Scott Baker J.
Even so, all members of the Court of Appeal expressed the opinion
that procedure by way of declaration was not appropriate in a
case such as this. Lord Donaldson of Lymington M.R. said:
“For my part, I do not think that this is an appropriate
procedure. A declaration changes nothing. All that the
court is being asked to do is to declare that, had a course
of action been taken without resort to the court, it would
have been lawful anyway. In the context of the most
– 30 –
sensitive and potentially controversial forms of treatment
the public interest requires that the courts should give
express approval before the treatment is carried out and
thereby provide an independent and broad based ‘third
opinion’.”
He then proceeded, with the concurrence of the other members of
the court, to make directions in respect of applications for the
court’s approval of medical or surgical treatment, pending the
appearance of a new Rule of the Supreme Court (to be added to
R.S.C., Ord. 80) or a Practice Direction of the President of the
Family Division.
With all respect to the Master of the Rolls, in the absence
of any parens patriae jurisdication vested in the High Court I know
of no jurisdictional basis upon which any such Rule of the Supreme
Court or Practice Direction, still less directions such as he
proposed, could be founded. The course of action proposed by the
Master of the Rolls presupposes the existence of a jurisdiction
under which approval by the High Court is required before the
relevant medical or surgical treatment is performed. There is at
present no such jurisdiction; and the jurisdiction of the High Court
cannot be expanded by a Rule of the Supreme Court or Practice
Direction or other direction. The present position is that the
lawfulness of medical or surgical treatment cannot, in the case of
adults, depend upon the approval of the High Court. In my
opinion, the course of action proposed by the Master of the Rolls
would be ultra vires.
However, I do not altogether share the misgivings expressed
by him (and shared by his other colleagues in the Court of Appeal)
about the procedure for declaratory relief. First of all, I can see
no procedural objection to the declaration granted by the judge,
either as a matter of jurisdiction, or as a matter of exercise of
the discretion conferred by the relevant Rule of the Supreme
Court, Ord. 15, r. 16. Rule 16 provides:
“No action or other proceeding shall be open to objection on
the ground that a merely declaratory judgment or order is
sought thereby, and the Court may make binding
declarations of right whether or not any consequential relief
is or could be claimed.”
In Guaranty Trust Co. of New York v. Hannay & Co. [1915] 2 K.B.
536, a leading case in which an unsuccessful attack was mounted
on the vires of the then Ord. 25, r. 5 (the predecessor of the
present rule), forthright statements were made by both Pickford
and Bankes L.JJ. as to the breadth of the jurisdiction conferred by
the rule. Pickford L.J. said, at p. 562:
“I think therefore that the effect of the rule is to give a
general power to make a declaration whether there be a
cause of action or not, and at the instance of any party
who is interested in the subject matter of the declaration.”
And Bankes L.J. said, at p. 572:
“It is essential, however, that a person who seeks to take
advantage of the rule must be claiming relief. What is
– 31 –
meant by this word relief? When once it is established, as
I think it is established, that relief is not confined to relief
in respect of a cause of action it seems to follow that the
word itself must be given its fullest meaning. There is,
however, one limitation which must always be attached to
it, that is to say, the relief claimed must be something
which it would not be unlawful or unconstitutional or
inequitable for the court to grant or contrary to the
accepted principles upon which the court exercises its
jurisdiction. Subject to this limitation I see nothing to
fetter the discretion of the court in exercising a jurisdiction
under the rule to grant relief, and having regard to general
business convenience and the importance of adapting the
machinery of the courts to the needs of suitors I think the
rule should receive as liberal a construction as possible.”
There are of course some limits which have been established
to the exercise of the discretion under the Rules. In Russian
Commercial and Industrial Bank v. British Bank for Foreign Trade
Ltd. [1921] 2 A.C. 438, 448, Lord Dunedin said with reference to
the ancient Scottish action of declarator:
“The rules that have been elucidated by a long course of
decisions in the Scottish courts may be summarized thus:
The question must be a real and not a theoretical question;
the person raising it must have a real interest to raise it;
he must be able to secure a proper contradictor, that is to
say, someone presently existing who has a true interest to
oppose the declaration sought.”
Subsequently, in Vine v. National Dock Labour Board [1957] A.C.
488, 500, Viscount Kilmuir L.C. found this Scottish approach to be
helpful; and indeed there is authority in the English cases that a
declaration will not be granted where the question under
consideration is not a real question, nor where the person seeking
the declaration has no real interest in it, nor where the
declaration is sought without proper argument, e.g. in default of
defence or on admissions or by consent. In the present case,
however, none of these objections exists. Here the declaration
sought does indeed raise a real question; it is far from being
hypothetical or academic. The plaintiff has a proper interest in
the outcome, so that it can properly be said that she is seeking
relief in the broad sense described by Bankes L.J. The matter has
been fully argued in court, through the intervention of the Official
Solicitor, and indeed with the benefit of assistance from an amicus
curiae. I wish to add that no question arises in the present case
regarding future rights: the declaration asked relates to the
plaintiff’s position as matters stand at present. In all the
circumstances, I can see no procedural difficulty in the way of
granting a declaration in the present case. In truth, the objection
of the members of the Court of Appeal to the declaratory remedy
was that it was not so appropriate as the exercise by the court of
the parens patriae jurisdiction, had that still been available, by
which the court would have considered whether or not to grant
approval to the proposed treatment. This is a justifiable comment,
in that (statute apart) only the exercise of the parens patriae
jurisdiction can ensure, as a matter of law, that the approval of
the court is sought before the proposed treatment is given. If,
however, it became the invariable practice of the medical
– 32 –
profession not to sterilise an adult woman who is incapacitated
from giving her consent unless a declaration that the proposed
course of action is lawful is first sought from the court, I can see
little, if any, practical difference between seeking the court’s
approval under the parens patriae jurisdiction and seeking a
declaration as to the lawfulness of the operation.
I am satisfied that, for the reasons so clearly expressed by
the judge, he was right to grant the declaration sought by the
plaintiff in the present case. I would therefore dismiss the appeal.
My noble and learned friend, Lord Brandon of Oakbrook, has
proposed that certain alterations should be made to the declaration
made by the judge. I for my part understood that the declaration
was made on the basis of existing circumstances; but I am very
content that this should be made clear in the order, and that
express provision should be made for a liberty to apply, as
proposed by my noble and learned friend.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
The difficult questions raised in this appeal have been fully
examined in the speeches of my noble and learned friends Lord
Brandon of Oakbrook and Lord Goff of Chieveley and I entirely
agree with their conclusions as to the manner in which this appeal
should be disposed of and with their reasons for such disposal.
My Lords, I should like only to reiterate the importance of
not erecting such legal barriers against the provision of medical
treatment for incompetents that they are deprived of treatment
which competent persons could reasonably expect to receive in
similar circumstances. The law must not convert incompetents
into second class citizens for the purposes of health care.
There are four stages in the treatment of a patient,
whether competent or incompetent. The first is to diagnose the
relevant condition. The second is to determine whether the
condition merits treatment. The third is to determine what the
merited treatment should be. The fourth is to carry out the
chosen form of merited treatment. In the case of a long term
incompetent, convenience to those charged with his care should
never be a justification for the decision to treat. However, if
such persons take the decision in relation to the second and third
stages (supra) solely in his best interests and if their approach to
and execution of all four stages is such as would be adopted by a
responsible body of medical opinion skilled in the particular field
of diagnosis and treatment concerned, they will have done all that
is required of them and their actings will not be subject to
challenge as being unlawful.
– 33 –
4.5.89
HOUSE OF LORDS
IN RE F.
(RESPONDENT)
Lord Bridge
of Harwich
Lord Brandon
of Oakbrook
Lord Griffiths
Lord Goff
of Chieveley
Lord Jauncey
of Tullichettle
LORD BRIDGE OF HARWICH
My Lords,
I understand that your Lordships all agree on the appropriate
disposal of this appeal although not yet ready to state your
reasons. In the circumstances it is obviously desirable that the
appeal should now be determined for reasons to be given later. I
accordingly propose that the appeal be dismissed but that there be
substituted for the order and declaration made by Scott-Baker J.
an Order in the following terms:
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It is declared that the operation of sterilisation
proposed to be performed on the plaintiff being in the
existing circumstances in her best interests can
lawfully be performed on her despite her inability to
consent to it; -
It is ordered that in the event of a material change
in the existing circumstances occurring before the
said operation has been performed any party shall
have liberty to apply for such further or other
declaration or order as may be just.
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