Nominal & Exemplary
Cases
Philip v Ryan
[2004] I.E.S.C. 105,JUDGMENT delivered on the 16th day of December, 2004 by FENNELLY J.
The Court has already pronounced its decision on this appeal. It has increased the damages awarded to the Plaintiff/Respondent by Peart J in the High Court from the sum of €45,000 to €100,000.
The action was one for professional negligence against both defendants arising from the first-named defendant’s failure to diagnose that the plaintiff was suffering from prostate cancer and not prostatitis as he found.
Liability was in issue in the High Court, but the appeal by the defendants was limited to the question of damages. The plaintiff lodged a cross appeal claiming that the damages awarded were inadequate. Two points were made in the cross appeal:
· That no damages were awarded for possible loss of life expectancy;
· That aggravated damages should have been awarded as a result of the conduct of the defence to the claim.
On the 26th June 2001 plaintiff was admitted to the Bon Secours Hospital in Cork, having been referred to that hospital by his general practitioner. He complained that he had been unable to pass urine since the previous day and of abdominal pain. Pathology reports in respect of urine samples indicated that there was “no bacterial growth” and a seriously elevated PSA level of 168. The first-named defendant diagnosed acute prostatitis. The expert evidence for the plaintiff at the trial was to the effect that, based on his clinical symptoms, the pathology reports, and other factors this could not have been a case of acute prostatitis. In fact, the test results suggested that the plaintiff almost certainly had cancer which had spread – metastased – outside the prostate into other parts of the body.
This view of the matter was not seriously disputed by the defendants’ experts. At this stage, of course, there is no issue but that the plaintiff’s condition was disastrously misdiagnosed due to the negligence of the defendants. However, it was also tragically clear that the plaintiff’s cancer was, in any event, already at an advanced stage when he first presented to the first-named defendant. The real issue on this aspect of the appeal, therefore, was the extent to which the plaintiff was entitled to be compensated in damages for misdiagnosis, where he was never going to recover fully. Was the plaintiff entitled to recover damages for being deprived, as a result of not being informed of it, of the opportunity to consider possible treatment for his cancer?
It is material, firstly, to set out the principal findings of the learned trial judge on the negligence issue. The learned trial judge held that the first-named defendant was negligent in diagnosing prostatitis to the exclusion of any other possibility. Consequently, he did not tell the plaintiff that he was suffering from cancer or arrange any other necessary tests. The negligence of the first-named defendant resulted in the plaintiff not becoming aware that he had prostate cancer until eight months later than he should have. Specifically, he was deprived of an opportunity to have a discussion between July 2001 and March 2002 with the first-named defendant, or indeed any other medical person about his disease and the alternatives for treating him.
The arrival of the news in March 2002 that he was suffering from advanced prostate cancer was a great shock to the plaintiff, as was the news that this diagnosis could have been made in July 2001, but had been missed by the first-named defendant.
The learned trial judge found that the plaintiff had reasonable grounds for believing that his life expectancy was less than it would have been had the correct diagnosis been made in July 2001, and that this caused him great upset.
Turning to the question of damages, the learned trial judge said:
“I have no doubt that the plaintiff has suffered great anguish and distress on account of the knowledge that he could have been diagnosed sooner. All the academic medical debate about the advantages and disadvantages of immediate versus deferred treatment, are of little comfort to the plaintiff, who, in my view perfectly reasonably, has reasonable grounds for fearing that his life has been shortened.”
When he came to quantify damages, he said:
“As far as damages are concerned, I propose to award a single sum to take account of the distress caused to the plaintiff as a result of the negligence of the first named defendant. The plaintiff’s evidence was that on receiving the letter on 10th March 2002 he panicked, and later he was very angry and felt let down about the missed diagnosis, and he was of the view that what he now faces was very different in terms of survival from it might have been. Of course, whether his life has been shortened is a matter perhaps we will never know” (Emphasis added).
The plaintiff did not, therefore, recover damages for loss of life expectancy. It was contended, on his behalf that, if his cancer had been correctly diagnosed in the summer of 2001, he would have been advised of the various treatment options that would have been open to him. The principal option would have been hormone treatment. While this treatment was by no means assured of success and could be accompanied by undesirable side effects such as impotence, there was a well-established professional view that life could be prolonged to a significant degree.
The learned trial judge conducted a meticulously detailed analysis of the expert evidence given before him and of the professional literature on this question. His conclusions were that:
• there are two well respected schools of thought within the medical profession as to the pros and cons in general of immediate versus deferred hormone treatment in cases of prostate cancer, and that it is not negligent to treat a patient in accordance with either;
• however, it is more likely than not that in relation to this particular plaintiff’s disease as of July 2001 that had the correct diagnosis been made, the plaintiff would have had a full discussion with his treating consultant when the advantages and disadvantages of each method of treatment would have been explained in a way which the plaintiff could understand, and the plaintiff would have been able to participate in the decision-making process regarding his treatment and future, and that in the circumstances of this case he was deprived of that opportunity;
• if the plaintiff had, in consultation with his treating consultant, opted for a deferral of hormone treatment until the disease had progressed, the plaintiff would nevertheless have been monitored closely. He would in other words have been kept under constant observation in order to see how the disease was progressing;
• it was not reasonable, on the evidence, to assume that the delay of eight months in the correct diagnosis had had no adverse impact on the plaintiff’s life expectancy and quality of life, and it is not reasonable for the first-named defendant to say that by not knowing that he had cancer, he was better off in the sense that he could go about his life during that eight months free of the worry of knowing that he had a serious condition. That would be to deny the plaintiff his basic right to be informed about a serious matter regarding his health, and his right to plan his future in the light of that knowledge.
On the balance of probabilities, the learned trial judge was of the view that, having been deprived of an opportunity of considering having immediate or fairly immediate hormone treatment in the summer of 2001, a reasonable consequence of that was that the plaintiff had suffered distress by having a reasonable belief that his life had been shortened by anything from 8 months to two years, and that on the evidence there was a reasonable basis for that belief. Based on these considerations, he decided to award a single sum to take account of the anger and distress suffered by the plaintiff.
However, he did not award any damages for the fact that the plaintiff, not having been informed of his condition in June 2001, was deprived of the opportunity of beneficial treatment. In particular, he did not award any damages for the loss of opportunity to be advised of treatment which might have had the effect of prolonging his life, even by a short period.
This is not to say that the learned trial judge did not consider this aspect of the claim. On the contrary, he discussed it with elaborate care and set out the competing views very fully.
Firstly, he referred to the evidence of the plaintiff’s expert witness, Dr Shah, to the effect that there was “a definite benefit for early therapy in patients who present with prostate cancer.” He thought that the “critical issue related to diagnosis at earliest possible opportunity.” He was of the opinion that the “advantage of early therapy is somewhere between eight months and three years.” The treatment postulated was hormone therapy. Dr Shah relied on a study of 1997 by the Medical Research Council in the UK. There was, sadly, no question of the plaintiff being completely cured. It was a question of whether his life could have been prolonged. This view was supported by the other medical expert called for the plaintiff, Dr Hardman.
The evidence of Mr Denis Murphy, Consultant Urologist called on behalf of the Appellants was that it was better to defer hormone treatment. He said that there was a very broad spectrum of opinion as to whether hormone treatment should be initiated immediately on diagnosis. He did not think the plaintiff would have had any better prognosis if he had been diagnosed earlier.
Referring to this evidence and to the conflicting evidence in what he called the “academic debate” about the merits of earlier hormone treatment, the learned trial judge said:
“What is beyond any doubt is that there are two respectable schools of medical opinion in relation to a general question as to whether it is better to hormonally treat a patient as soon as a diagnosis of localized prostate cancer has been made, or whether it is more beneficial to the patient to wait until that disease has progressed to other parts of the body, or indeed whether it is better to wait beyond that until the patient has actually developed symptoms.”
He posed the following question:
“But what is important to deal with is whether, by reference to the studies and material and the evidence adduced in relation to this matter, it is on the balance of probabilities likely that this particular plaintiff, Mr. Philp, given his particular characteristics of disease in July 2001, has had his life shortened by his treatment being delayed until March 2002, resulting from the missed diagnosis in July 2001, or is Mr Ryan on the balance of probabilities correct when he submits that he would, according to the school of thought to which he adheres, have been correct or justified in any event to have deferred hormone treatment until March 2002 and without any adverse consequences for the plaintiff as far as life expectancy is concerned.” (emphasis added).
At one point, the learned trial judge appeared to lean in favour of the plaintiff’s evidence, when he said:
“I believe there is ample support for the plaintiff’s belief that in all probability he, given his specific condition, at least had a more than 50% possibility that immediate hormone treatment in July 2001 would have been beneficial. Such treatment would have to have been discussed with the plaintiff, and I believe that if Mr Ryan had failed to discuss these options with the plaintiff in July 2001, he would have been in breach of his duty of care. I am not going so far as to say that if Mr Ryan recommended deferred treatment to the plaintiff, and the plaintiff took that advice, that Mr Ryan would be negligent in so recommending. I am simply pointing to the need to have the options clearly placed before Mr Ryan so that an informed decision could be made by the plaintiff in relation to the options. It is always open to a patient to not take advice from his doctor once he has been fully informed as to all relevant considerations – especially in a situation such as the plaintiff’s where there is no unanimity in medical opinion as to the correct course of treatment.”
However, in the final analysis, he did not award damages for this aspect of the claim. His approach appears from the following:
“I cannot make a definitive conclusion in relation to whether his life has been shortened, or by how long, simply because the whole question is the subject of such debate, as I have shown, but I can conclude that on the balance of probabilities, the fear that his life has been shortened is a reasonable fear, and the distress caused to the plaintiff in that regard is reasonable, and for which he entitled to be compensated.”
It must be recorded, of course, that this issue comes before the court only by way of cross appeal. The appeal has been taken to this court not by the plaintiff but by the defendants. However, the court was quite satisfied that the appeal of the defendants on the ground that the damages were excessive was without merit. The award of €45,000 was amply justified by the findings of the learned trial judge regarding the real anguish and distress suffered by the plaintiff. Furthermore, I fully agree with the judgment of McCracken J that an award of aggravated damages should have been made. The failure of the defendants’ solicitors to inform the plaintiff’s solicitors that the first-named the defendant had falsified the clinical note upon which they had placed such heavy reliance in pre-trial procedures was reprehensible in the highest degree. This behaviour was calculated to deceive the plaintiff, his advisers and the court on a material matter. Regrettably the defendants made a deliberate decision not to correct the false impression they had earlier conveyed to the plaintiff that there would be evidence supported by a genuine contemporaneous note that the plaintiff had been advised to have a further test carried out.
It remains only to deal with the cross appeal relating to the failure of the learned trial judge to award damages for possible or probable loss of life expectancy. The cross appeal alleges that it was wrong not to make an award of damages under this heading once it had been found that it would not be reasonable to assume that the delay of some eight months in making the correct diagnosis had no adverse effect on the plaintiff’s life expectancy.
The learned trial judge appears to have posed a test of probability of success on the Appellant’s entitlement to damages for loss of the opportunity to have hormone treatment. Damages depended on proof that life would probably, not possibly, have been prolonged.
The plaintiff claims an entitlement to be compensated for the loss of an opportunity to elect for treatment of his cancer on the basis of correct diagnosis and appropriate medical advice. Assuming such correct diagnosis, he claims that there was a possibility that his life could have been prolonged to some extent. It is common case that the chances of successful treatment were, at best, problematical. There is no dispute as to the trial judge’s view that medical academic opinion was divided on the benefits of hormone therapy.
The defendants argued that this type of lost opportunity was not valuable in the sense that it should not attract compensation unless it could be proved that the postulated treatment would probably have been successful. Mr Patrick Keane, Senior Counsel for the defendants went so far as to submit that a forty nine percent chance of successful treatment would not confer an entitlement to damages, though a fifty one percent chance would. Asked how this was reconcilable with the universal practice of allowing for percentage risks below fifty of the future development of conditions such as arthritis or epilepsy, he sought to distinguish these examples as being on the debit side only. These were negative possibilities for an injured person, whereas, in the present case, the plaintiff seeks compensation for the loss of a beneficial opportunity.
Before considering the authorities cited by Dr John White, Senior Counsel for the plaintiff, I should say that it seems to me to be contrary to instinct and logic that a plaintiff should not be entitled to be compensated for the fact that, due to the negligent diagnosis of his medical condition, he has been deprived of appropriate medical advice and the consequent opportunity to avail of treatment which might improve his condition. I can identify no contrary principle of law or justice. It is commonplace that allowance is made in awards and in settlements for the risk that an injured plaintiff may in the future develop arthritis in an injured joint. The risk may be high or low – a fifteen percent risk is often mentioned – but damages are paid. I cannot agree that this is any different from what is sought in the present case. It does not matter that the damage suffered by the plaintiff consists of the loss of an opportunity to avail of treatment. It might, with equal logic, be described as an increased risk of shorter life expectancy. It seems to me as illogical to award damages for a probable future injury as if it were a certainty, as to withhold them where the risk is low on the basis that it will not happen at all.
This precise matter was dealt with by this Court in Dunlop v Kenny (Unreported, 29th July 1969). O’Dálaigh C.J. delivered the unanimous judgment. It was held that the jury had been misdirected to the effect that the plaintiff would suffer from epilepsy, when the evidence was that there was “a risk of major epilepsy.” O’Dálaigh C.J. held that the trial judge had overstated the risk. He did not, however, state that there should be no award under this heading. The following passage very clearly indicates the correct approach:
“In cases such as this, where there is an issue of possibility or probability of some disability or illness arising or developing in the future, the damages to be awarded should be commensurate with, and proportionate to, the degree of that possibility or probability as the case may be. If the degree of probability is so high as to satisfy a jury that it remains only barely possible that the condition will not occur, a jury would justified in acting upon the assumption that it will occur, and should measure the damages accordingly. On the other hand, if the probability that no such event will occur is so great that it is only barely possible that it would occur, damages should nevertheless be awarded, but should be proportionate the degree of risk, small though it might be.”
This statement applies, of course, only to the assessment of damages for future uncertain events. In respect of past events, whether related to liability or to the causation of damage or loss, the normal rule of proof on the balance of probability applies. These issues were considered by the House of Lords in Davies v Taylor [1974] A.C. 207. That was a claim for damages under the Fatal Accidents, 1846. The plaintiff brought the claim arising from the death of her husband. At the time or the death, she was estranged from him and he had instructed solicitors to commence proceedings for divorce. In support of her claim for loss of future dependency, she said that reconciliation would have taken place. The House of Lords were unanimously of the view that the trial judge had mistakenly held that no sum was recoverable.
Certain passages from the speeches of the Law Lords provide solid support for the approach I have outlined for this case. Lord Reid spoke at page 213 as follows:
“When the question is whether a certain thing is or is not true- whether a certain event did or did not happen – the court must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent ; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.
“Injury” in the Fatal Accident Acts does not and could not mean loss of a certainty. It must and can only mean loss of a chance. The chance may be a probability of over 99 per cent but it is still only a chance. So I can see no merit in adopting here the test used for proving whether a fact did or did not happen. There it must be all or nothing.
If the balance of probability were the proper test what is to happen in the two cases which I have supposed of a 60 per cent and a 40 per cent probability? The 40 per cent case will get nothing but what about the 60 per cent case.? Is it to get a full award on the basis that it has been proved that the wife would have returned to her husband? That would be the logical result. I can see no ground at all for saying that the 40 per cent case fails altogether but the 60 per cent case gets 100 per cent. But it would be almost absurd to say that the 40 per cent case gets nothing while the 60 per cent case award is scaled down to that proportion of what the award would have been if the spouses had been living together. That would be applying two different rules to the two cases. So I reject the balance of probability test in this case.”
Lord Simon at page 220 of Glaisdale spoke to similar effect:
“…But this is one of those cases where a balance of probabilities is not the correct test. If the appellant showed any substantial (i.e. not merely fanciful) possibility of a resumption of cohabitation she was entitled to compensation for being deprived of that possibility. The damages would, of course, be scaled down from those payable to a dependant spouse of a stable union, according as the possibility became progressively more remote. But she would still e entitled to some down to the point where the possibility was so fanciful and remote as to be de minimis.”
The assessment of future losses is, on occasion, a matter of mathematical calculation. In certain cases, the courts are accustomed to resorting to the evidence of actuaries, who are expert in calculating the present capitalised value of a combination of future events of greater or lesser likelihood. They can build in allowance for the occurrence of a variety of possibilities including likely age of death or retirement. Nobody suggests that their calculations must be posited on the probable as distinct from the possible happening of each event. Their reports would be deeply flawed if they were.
In my view, the plaintiff should receive an award for the loss of the opportunity to be advised correctly and treated accordingly. Taking this element together with the element of aggravation of damage by the judgment of McCracken J, I believe the sum of €100,000 represents to correct level of the award. I would, therefore, dismiss the appeal and allow the cross appeal substituting the sum of €100, 000 for the sum of €45,000 awarded in the High Court, that increased sum to include both compensation for the loss of life expectancy and the aggravation of damage dealt with in the judgment of McCracken J.
7
THE SUPREME COURT
134/04
144/04
Murray CJ
Fennelly J
Judgment of Mr Justice McCracken delivered the 17th day of December 2004
__________________________________________________________
In this judgment I propose to deal only with the question of whether the Plaintiff is entitled to aggravated damages by reason of the behaviour of the Defendants in the preparation and presentation of their case.
In Conway v. Irish National Teachers Organisation [1991] 2 IR 305 the circumstances in which aggravated or exemplary damages could be awarded was considered by this Court. In the present case the Plaintiff does not claim exemplary damages such as were ultimately awarded in that case, but does claim aggravated damages. At page 317 Finlay CJ dealt with several types of damages which could be awarded and said:-
“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 anyway 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 is being wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.”
In the present case, the Plaintiff relies on the last of these factors as entitling him to aggravated damages. In Swaime v. Commissioners of Public Works [2003] 1 IR 521, where the question of aggravated damages was considered in the light of a claim for negligence against the defendants in exposing the plaintiff to the risk of contracting mesothelioma, Keane CJ said at page 525, after referring to the Conway case:-
“Although the then Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”
He then went on to comment that in a claim for negligence one would not expect the circumstances giving rise to aggravated damages to arise because:-
“Most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”
However, after referring to the English decision of Appleton v. Garrett [1966] PIQR 1 and the Supreme Court decision in Cooper v. O’Connell (unreported 5th June 1997) the Chief Justice continued at page 528:-
“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued. In the present case, however, I am satisfied that, while the defendants were unquestionably guilty of what the trial Judge described as ‘the grossest negligence’, that factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those referred to in the judgment of Finlay CJ in Conway v. Irish National Teachers Organisation [1991] 2 IR 305, or factors of a similar nature.”
It should be said that the authorities referred to by Keane CJ in that passage were not cited in this case either, and the applicability of aggravated damages to actions in negligence was not argued at any length in this Court. However, it must be emphasised that the claim for aggravated damages in the present case is not based in any way on the degree of negligence of the Defendants, but rather on their behaviour subsequent to the negligent acts.
The basis for the aggravated damages in the present case lies in the clinical notes of the first named Defendant in relation to the consultation with the Plaintiff on 12th July 2001. The relevant entry, dated 12/7/01, reads:-
“ROC at OPD today
for see DECO1
PSA 6/52”
It is quite clear from looking at the notes that they purport to be a contemporaneous account of what occurred on the various dates set out in those notes. The Plaintiff gave evidence that the first line was his shorthand for “removal of catheter at outpatients department today”, that the word “For” was his abbreviation for what he planned to do and that he was to see the Plaintiff in December 2001. In the course of his evidence he conceded that the words “PSA 6/52”, which was intended to convey that the Plaintiff was to have a PSA test in six weeks, was an addition which he made to the notes at a later date, namely in December 2002 when he received a letter from the Plaintiff’s solicitor threatening an action against him.
The Plaintiff’s advisors clearly had doubts as to the authenticity of these clinical records, and had refused to admit them in evidence unproved, although the Plaintiff did admit the hospital records without formal proof. The matter finally came to light on the sixth day of the hearing, during the evidence in chief of the first Defendant. He referred to his clinical notes in relation to a totally different matter and the learned trial Judge, who appears to have assumed that the clinical notes had been admitted, asked to see them. Counsel for the Plaintiff said the notes had not been admitted in evidence and called for the originals to be produced. This was done, and at that stage the first Defendant disclosed that “PSA 6/52” was an addition which I made to the notes at a later date”. He explained this by saying that in December 2002, when he received a letter from the Plaintiff’s solicitor threatening an action against him, he reviewed his notes and he also reviewed his correspondence with the Plaintiff’s general practitioner. In the course of this correspondence in July 2001 he had told the general practitioner that he was going to arrange to have a PSA repeated in about six weeks time. He said that a letter to a general practitioner would normally be a more complete record, and he assumed that he had omitted this from his clinical notes. It should be noted that he did not say in his evidence in chief that he recollected having told the Plaintiff to have an additional test done in six weeks time.
Under cross-examination the first Defendant conceded that:-
“I do not say with certainty that I did that or that I gave that instruction to Mr Philp. I cannot remember the consultation. So if I understand your question to be asking me am I sure that I gave that direction to Mr Philp, can I say I asked him to have it done, the answer is no, I cannot say that.”
Subsequently in the course of cross-examination Counsel for the Plaintiff sought to ask him when was the first time that he had disclosed to anyone that he had altered the document. Through his Counsel, the first Defendant claimed privilege on the basis that he was being asked to disclose a communication between a client and his lawyer, and this objection was upheld. However, in cross-examination he did say that he had realised “recently” that there was a possibility that he did not advise the Plaintiff to have a test done as recorded in the notes and added:-
“And I then took the step of contacting my legal team and informing them of the situation in relation to the note.”
Subsequently he said that the decision to disclose the fact that the document had been altered was made approximately one week before the hearing and later said:-
“I at all times up to recently, by which I mean, you know, approximately, two weeks ago, was of the mind that I had asked for this PSA test to be done.”
He repeated on several other occasions in the course of the cross-examination that, before the action had commenced, he contacted his legal team and discussed the matter with them and sought advice.
The learned trial Judge, having heard all the evidence, stated at page 26 of his judgment:-
“Given Mr Ryan’s evidence in Court that he has no recollection of the consultation of the 12th July 2001, I cannot however accept his evidence that he was completely sure that, in altering that record, he was only completing the record so that it reflected the true situation. I believe on the balance of probabilities that on receipt of the solicitor’s letter in December 2002 he looked at the clinical notes and in some sense of panic which must have impaired his judgment as to how to react or act, he inserted a note which he felt would assist him in his defence of what was obviously going to be a claim against him.”
This is an extremely serious finding against the first Defendant. It is a finding that the first Defendant deliberately and knowingly altered a document which he must have known would be used in court proceedings with the intention of, as the learned trial Judge said, assisting his case, which in fact means with the intention of deceiving the court, and of attempting to deprive the Plaintiff of damages to which he has subsequently been found to be lawfully entitled.
That matter is of itself extremely disturbing, because obviously the first Defendant had instructed his legal advisors that he had requested the Plaintiff to have a further PSA test in six weeks time. His legal advisors, quite properly at the time, in effect represented to the Plaintiff and his advisors that this was a fact which would be proved by the first Defendant. I will come to these matters later in the judgment.
In addition to misleading his legal advisors, the Plaintiff also sought to, and succeeded in, misleading his own expert witness. He prepared a case summary submitted to Mr Michael Murphy, a consultant urologist who gave evidence on his behalf, which was headed “Case Summary”. In the course of that case summary he made the following statements:-
“I asked him to have a serum PSA measurement carried out after six weeks in the Middle East and to contact me with the result.”
and
“Given that I felt that prostate cancer was only a remote possibility, would see it as good medical practice to try and avoid what appeared to be unnecessary worry and anxiety for a patient over a period of six weeks while his next investigative assessment (i.e. repeat serum PSA) was awaited. Had the follow-up PSA test been carried out as instructed and in the event that the follow-up PSA test was not showing signs of decreasing and indeed were it noted to be increasing, I would have expressed appropriate concern …..”
and
“What transpired was that Mr Philp did not contact me with a PSA result as requested.”
In my view this was a clear attempt to mislead a witness, who the first Defendant knew was going to give evidence as an expert, and therefore would be regarded by the Court in that light. Through misleading Mr Murphy, the first Defendant was again attempting to mislead the Court. Fortunately, the alteration was discovered before Mr Murphy gave his evidence, and was indeed roundly condemned by him.
The allegation that the Plaintiff had been asked to have a further test done in six weeks time was not just contained in the clinical notes and the report to Mr Murphy. It was also made in a number of ways to the Plaintiff’s legal advisors, albeit, as I have said, at a time when no doubt it was believed to be true by the Defendants’ legal advisors. On 1st July 2003 the Plaintiff was served with a notice to admit facts, and was asked to admit that he had been told by the first named Defendant to arrange to have a test carried out six weeks later. On 7th July 2003 interrogatories were administered to the Plaintiff requiring the Plaintiff to admit on oath that the first named Defendant told him on 12th July 2001 to arrange to have a PSA test carried out six weeks later and that it was important to have the test carried out. On 22nd May 2003 the first named Defendant swore an affidavit of discovery which disclosed his clinical notes, and when production of these were sought, it was the altered notes that were produced. In fact, despite its date, that affidavit of discovery was not furnished to the Plaintiff until the 24th June 2003. On 1st July 2003 the Plaintiff’s solicitors were asked admit the medical records held by the Defendants without formal proof. On 19th July 2003 the Defendants’ solicitors replied to a notice for particulars stating that “on the 12th July 2001 Dr Ryan instructed the plaintiff to have a serum PSA measurement carried out after six weeks in the Middle East and to contact him with the result”.
There is no doubt that faced with these documents, the defence against the Plaintiff’s case must have appeared to the Plaintiff’s advisors as being much stronger than it really was. The main plank of the Plaintiff’s case was that he was not told for some eight months after he became ill in July 2001 that he was suffering from prostate cancer. If in fact he himself had failed to comply with the first Defendant’s request to have a test carried out in six weeks time, then of course much if not all of the blame for the delay would have been attributable to the Plaintiff himself. He might well have been discouraged from proceeding with the action or have settled it at well below its value because of the apparent risk. Furthermore, had the alteration in the document not come to light somewhat fortuitously through the intervention of the learned trial Judge, the Defendants’ expert, Mr Murphy, would have given evidence on the basis that the alleged instruction had been given to the Plaintiff, and the first Defendant himself would not have been subjected to strenuous cross-examination in relation to this instruction. It is quite possible that the learned trial Judge in those circumstances would have found against the Plaintiff.
The truly appalling feature in this case is that it appears that the Defendants’ advisors were told of the alteration by the first Defendant between one and two weeks before the commencement of the action. I find it almost incomprehensible that in those circumstances they did not inform the Plaintiff’s solicitors of the true facts. While a great deal of blame attaches to the first Defendant for having altered the document in the first place, he did at least disclose the facts to his own legal advisors, and in my view at least equal if not greater blame must be attributable to them. It is instructive that they did not seek to use the clinical notes in cross-examination of the Plaintiff or his advisors, although they did suggest in such cross-examination that he had been instructed to have a further test taken in six weeks time. They did not seek to have their own client prove the notes until they were called for by the learned trial Judge, although they knew they were being put on proof of the notes. There must be at least a suspicion that there was a deliberate attempt to keep the true facts from the Court notwithstanding that the altered document had been furnished to the Plaintiff’s solicitors as being genuine, and that the facts stated in the alteration had formed part of the instructions to Mr Murphy.
In reviewing the law at the beginning of this judgment I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded. The Plaintiff has not given evidence of the effect of the misinformation which he received had on him. This is not something which the Defendants can complain about, because his failure to discover the true facts before he had closed his case was due entirely to what I can only describe as the misconduct of the Defendants’ advisors in not disclosing the alteration.
In the absence of direct evidence, in those circumstances in my view the Court is perfectly entitled to infer the probable effect that this false information had on the Plaintiff. It must be remembered that he is a man who had for the last two years known that he was suffering from prostate cancer and does not have long to live. He has undertaken proceedings based on the worry, anxiety and loss of opportunity which arose due to the negligence of the Defendants. One can only imagine the additional stress and anxiety which he must have suffered in the belief that there was, at least in documents shown to him, a strong defence to his action. The loss for which he has already been compensated due to the negligence of the Defendants has in my view been greatly increased due to the grossly improper behaviour of both the first Defendant and his legal advisors. This is clearly as case where already existing damages have been aggravated by such behaviour and I would award him a sum of €50,000.00 in addition to the compensatory damages awarded in relation to his basic claim, as set out in the judgment of Fennelly J, with which judgment I am in full agreement.
Daly v Mulhern
[2005] I.E.H.C. 140
Judgment O’Sullivan J. delivered the 22nd day of April, 2005
The plaintiff sustained whiplash type injuries when her car was hit from the rear by a car driven by the first defendant on 21st July, 2001.
The only evidence in the case has been the evidence of the plaintiff and her consultant physician and rheumatologist, Dr. Dominic Cooke. The plaintiff is aged 55, is separated and has three grown up children and lives on her own at Ballyshannon, Co. Donegal. At the time of the accident she had been working for nine years as a cleaner in a bakery at Ballyshannon. This was heavy manual work and her shift on each of five days in the week was from 2am to 2pm. The accident happened on a Saturday morning as she was driving towards Ballyshannon. The car in front of her stopped blocking her progress so she stopped. As she was about to pull away she was hit from the rear by the first defendant’s car. She got a severe shock.
Her unchallenged evidence was that the first defendant came out and said “I’m really sorry” and pointed to the fact that he was wearing flip flop shoes, that these were unsuitable and that he had hit the accelerator instead of the brake. He told her there was no need to call the police and that they would sort it out if she called out to him. They were at the scene between ten and twenty minutes outside McNulty’s Garage. Later she went to his house and he said he would see her right but nothing happened and she ultimately went to her solicitor and the instant proceedings were initiated. There is a claim for aggravated damages arising out of the manner in which the defence was conducted and I will therefore return to the facts relating to this at a later point.
Injuries
The plaintiff felt very sore the next morning in her back and neck. She went to her general practitioner who advised painkillers which were effective but the effect wore off. The injury affected her ability to move and to do housework. However, because she was self supporting she had to return to work which she did within two weeks and continued working but in Autumn she reduced her work load to three shifts a week. She had headaches, relied on some friends to help her with her housework and has been working three shifts a week ever since. Her symptoms of soreness, pain and stiffness and reduced mobility continued beyond the normal period of 18-24 months and still persist at the date of hearing. Her doctor (Dr. Cooke) advised physiotherapy but she only tried this a few times and gave it up because of the pain. Sometimes her back gets really bad and there is also pain in her neck. She has a lot of bending, carrying and moving heavy buckets at work. She has to use a high pillow for sleeping; if she does not she wakes in the morning with pain. She suffered pain going down her arms first about two months after the accident. She has this pain and pins and needles especially in the morning every day for an hour or two and it has been constant for the last few years. She saw her general practitioner for perhaps a total of six times in the years since the accident. She was advised to take painkillers and anti-inflammatories and she has been taking paracetemol and panadol.
She has suffered loss of earnings but has made no claim for this because, as her counsel put it, of the manner in which she was paid.
She also gave evidence that she heard from her solicitor of a letter from the first defendant written on 5th December, 2002 in response to a letter to him of 28th November saying:
“Your client has already come to my door enquiring as to whether she had an accident with myself or any of my drivers, while she had drink taken I was unaware she was in any doubt as to the clarity of my answer, which was an unambiguous no.”
She said that when her solicitor told her about this letter she suffered an awful lot of stress, she couldn’t believe that he denied the accident, she was most particularly hurt about the allegation that she was drunk – as she understood it at the time of the accident. She was hurt about the implication that she had fabricated the accident.
Dr. Cooke gave evidence that the plaintiff first visited him on 31st August. He gave a history consistent with her evidence in court and complained of headaches, severe neck pain and stiffness going out into both arms, pins and needles and numbness in arms and fingers of both hands and severe back pain radiating to both thighs. On examination she had marked restriction of all movements of the cervical spine but no gross neurological deficit in the upper limbs. She had marked painful restriction of all movements of the lumber spine, hips and knees. Her injuries he described as still very acute. Over two years later on 21st November, 2003 she came to him again and told him that she had improved but still had a lot of neck pain and stiffness with pain and numbness in both hands particularly in the mornings and occasionally during the night but rarely during the day. She gets some back pain as well. On examination he found full movement of the neck shoulders and arms with pain at the extremes of movement of the neck but no restriction or spasm. He was concerned that the parasthesia and numbness in both hands had been present since the accident and is related to the neck injury and advised an MRI scan. This was done and on 1st February, 2004 Dr. Cooke reported that the scan showed degenerative disc disease at the C6/7 level and some degree of narrowing of the spine at the C4/5 level. These degenerative changes of the cervical spine were giving rise to some degree of nerve root irritation and that was responsible for the parasthesia and numbness. Her symptoms were predominantly soft tissue injuries but occurring on a background of cervical degenerative disc disease which had been aggravated by the accident and rendered painful and also nerve root irritation. The symptoms were likely to be prolonged.
The last time Dr. Cooke saw the plaintiff was on 4th December, 2004 and she told him she had not improved to any great extent and continued to have a lot of pain and stiffness in her neck, down into the shoulders, between the shoulder blades and parasthesia and numbness in both hands. She also experienced low back pain radiating down both legs. She finds the work in the bakery difficult and has to take pain killers virtually ever day. They help her and enable her to do her work. He then considered that she would have neck pain for at least six to twelve months but in evidence said that he thought that this pain would last even longer. He said that if she had not had the accident she would have remained symptom free until well into her sixties notwithstanding the pre-existing degeneration shown on the MRI. She has had all the treatment that she could be given and her reaction to physiotherapy was what he described as the standard reaction. He has what she described as a “half good neck” and he would not agree under cross-examination that her description of her pain was exaggerated.
Special damages have been agreed at €1,808.29.
In my opinion in light of the foregoing the plaintiff is entitled to ordinary compensatory damages of €25,000 to date and €10,000 further for pain and suffering in the future.
Aggravated damages
There is, in addition, however, a claim made on her behalf that she is entitled to aggravated damages. This is put upon the basis that
1. There was a clear admission made personally by the first defendant at the scene of the accident and at his house that he was responsible for the accident and would see the plaintiff right (there being no need to have the police involved in the circumstances);
2. That when the first defendant was written to, he wrote back in terms of the letter already quoted effectively accusing the plaintiff of fabricating the accident. (Her understanding of the letter was that he was alleging that she was drunk at the scene of the accident but my reading of it is that he was alleging that she was drunk when she turned up at his house some days later);
3. This stance of the first defendant was maintained throughout the conduct of the case and in particular
(a) notwithstanding the submission to the first defendant’s solicitors of a list of three independent witnesses to the accident which was furnished in early 2004, and
(b) in the context of an application by the plaintiff for discovery against the first defendant brought before the master of the High Court in late 2004 when again an affidavit was sworn on behalf of the first defendant to the effect that his position was that the accident never occurred. (It should be explained in this context that the plaintiff had not at any point identified the car allegedly being driven by the first defendant and I am told the Master of the High Court refused discovery unless she did so on affidavit)
4. Reliance is also placed on two letters from the first defendant’s solicitors dated respectively 11th November, 2004 and 7th March, 2005. The first states with reference to the defence (which denies the existence of the accident, or that the first defendant’s vehicle collided with the plaintiffs’ and put the plaintiff on full proof) and said “the first named defendant is a stranger to the allegation contained in the statement of claim.
This matter will be contested at the hearing…” and it was stressed that an order for costs against the plaintiff would be sought if the defendant succeeded. It stated that “we are at a loss to understand your request for confirmation re insurance cover given the nature of the defence.”
The second letter of 7th March, 2005 said, in the context of the striking out by the master of the plaintiff’s motion for discovery
“…we hereby call upon you to confirm in writing the plaintiff no longer intends proceeding as against the first defendant. In the event that we should fail to receive such confirmation by return of fax, this letter will be tendered to the court to have the plaintiff fixed with all costs incurred by the first named defendant…”
In response, counsel for the first defendant submits that these are typical repostes to be found in many cases where the plaintiff is put fully on proof. Even in cases where a defendant’s denial that the accident occurred is found to be wrong and the plaintiff’s allegation succeeds no question of aggravated damages arises: the matter simply falls to be covered by compensatory damages in the ordinary way.
I have been referred, by Mr. Cooney S.C. to authority on aggravated damages as follows:
1. The judgment of Finlay C.J. in Conway v. INTO [1991] 2 IR 305 and especially at 317;
2. The judgment of Keane J. (as he then was) in Cooper v. O’Connell (unreported: High Court: 5th June, 1997); and
3. The judgment of Keane C.J. in Swaine v. Commissioners of Public Works [2003] 1 IR 521 at 528
In Swaine, O’Neill J. in the High Court had awarded the plaintiff £45,000 for general (compensatory) damages and £15,000 by way of aggravated (compensatory) damages for a condition of chronic anxiety neurosis caused by the defendant’s negligence in exposing him to the risk of contracting mesothelioma (a relatively uncommon disease which when contracted is fatal). The plaintiff had been required to work in the Leinster House Complex and during this work he was exposed over a lengthy period of time to very large quantities of asbestos dust. Whilst this had no immediate consequence to his health it did expose him to a risk of mesothelioma. As a result of becoming aware of this risk a plaintiff of suffering from “a chronic reactive anxiety neurosis”. The defendant’s negligence was described by the trial judge as “negligence of the grossest kind” a description with which Keane C.J. concurred. In doing so he pointed out that the defendants were seriously remiss in not taking elementary precautions for the plaintiff’s health; they did not even have the excuse that they were not aware at the time of the dangers associated with asbestos dust – rather, they were fully aware of those risks and when they employed contractors their workers unlike the plaintiff were given protective clothing and head gear. The plaintiff had been given no warning whatever of the dangers to which he had been exposed. Keane C.J. did not think it possible in those circumstances to dissent from the trial judge’s finding that it was “negligence of the grossest kind”. He went on to say:
“However, whether that entitled the trial judge to award an additional sum of £15,000 by way of aggravated damages is another matter entirely. It was agreed in this court that the generally accepted statement of the law as to the circumstances in which a court can award aggravated damages is to be found in the judgment of Finlay C.J. in Conway v. Irish National Teacher’s Organisation…He said at p. 317:-
‘Aggravated damages…are compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements are 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) the 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 anyway 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 particular also a recognition of the cavalier or outrageous conduct of the defendant.’
….although the then Chief Justice in the passage which I have quoted emphasises that the list of circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.”
Keane C.J. then proceeded to take the three categories one by one. In regard to the first category he observed that the consequences for the victim will often have little or no relation to the degree of moral culpability associated with the negligent conduct. With regard to the second category dealing with the conduct of the defendant after commission of the wrong, he observed that people involved in a road traffic accident may not apologise, for example, because they are too shocked and when they recover the matter is out of their hands. In regard to the third category he said:
“The same considerations apply to the third category, i.e., the conduct of the wrongdoer in the defence of the claim of the wronged plaintiff: most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.”
In further support for his tentative conclusion that aggravated damages may not be available under our law in cases of negligence or nuisance he suggested that one would more likely expect to find such awards in cases where damages are traditionally described as being “at large” and where the intention of the defendant to commit the wrong is frequently a precondition to liability – typically defamation or malicious prosecution. He referred to the judgment of Woolf J. in Cralj v. McGrath [1986] 1 AER 54 at p. 61 where Woolf J. emphasised the compensatory role of damages as distinct from the suggested role to reflect the degree of negligence or breach of duty involved. Keane C.J. had pointed out that the negligence by the defendant consultant obstetrician was described as “horrific” and “completely unacceptable”.
Keane C.J. also referred to A.B. v. South West Water Services Limited [1993] 1 AER 609 where the plaintiff suffered ill effects as a result of drinking contaminated water from the defendant water undertaker’s drinking water system. Exemplary and/or aggravated damages were claimed on the basis that the defendants had acted in an arrogant and high handed manner by ignoring complaints made by their customers and also had deliberately misled them by telling them that the water was safe when they knew otherwise. Nonetheless the court of appeal held the plaintiffs could not recover exemplary damages. Nor could they claim aggravated damages for their anger and indignation at the defendant’s high handed conduct because they could only claim compensatory damages, anger and indignation not being proper subjects for compensation.
Sir Thomas Bingham M.R. said at p. 532, emphasised that the plaintiffs were entitled to be fully compensated for all they suffered and that the ordinary measure of compensatory damages would cover everything suffered as a result of the breach, physically, psychologically and mentally. Full account would be taken of the distress and anxiety which such an event necessarily causes. He went on, however:-
“To the extent that any of these effects was magnified or exacerbated by the defendant’s conduct, the ordinary measure of damages will compensate them. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages…. I know of no precedent for awarding damages for indignation aroused by a defendant’s conduct.”
Sir Thomas Bingham M.R. went on to state his opinion that defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (such as by aggressive cross-examination or persistence in a groundless plea of justification) was not a true exception because injury to the plaintiff’s feelings and self esteem is an important part of the damage for which compensation is awarded.
Having referred, in addition, to a further judgement “which is not at first sight easy to reconcile with the decisions to which I have just referred” namely Appleton v. Garreth [1996] P.I.Q.R. 1 (where a dentist carried out unnecessary treatment deliberately concealing this fact from the patient to ensure continued consent for financial gain) and where the plaintiff was awarded aggravated damages, Keane C.J. commented that that case was framed in trespass which might explain why aggravated damages were thought appropriate. Accordingly, in Cooper v. O’Connell which was a case framed in negligence only, Keane C.J. distinguished Appleton from Cooper.
Accordingly, Keane C.J. reached a tentative conclusion in Swaine as follows:
“Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which, in actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued.”
He continued, that in the present case, the fact that the defendants were unquestionably guilty of “the grossest negligence” did not of itself entitle him to aggravated damages, but went on to add,
“…in the absence of circumstances such as those referred to in the judgment of Finlay C.J. in Conway v. Irish National Teacher’s Organisation… or factors of a similar nature.”
From the foregoing, it is clear that the Supreme Court in Swaine (all four other judges agreed with Keane C.J.) has not decided that there are no circumstances in actions for negligence where aggravated damages may be awarded. On the contrary in referring to the possibility that such a conclusion might be left for a case in which the matter is fully argued the Chief Justice concludes his judgment in Swaine by indicating that the plaintiff in that case was not entitled to aggravated damages because of “the absence of circumstances” such as those indicated by Finlay C.J. in Conway.
Furthermore, it is striking that the authorities considered by Keane C.J. in Swaine appear to be considering primarily categories (a) and (b) of the three identified by Finlay C.J. in Conway rather than, specifically, the conduct of the wrongdoer…in the defence of the claim of the wronged plaintiff up to and including the trial of the action. Whilst this latter category was considered by Sir Thomas Bingham M.R. in A.B. v. South West Water Services Limited, this consideration, so far as cited by Keane C.J. was confined to cases of defamation as distinct from cases where the defendant after the commission of the wrong actually misled and deceived the plaintiff as to his proposal to make good and compensate the wrong to the plaintiff, or where a defendant added insult to injury by completely denying the incident (having apologised and promised not once but twice to compensate her) thereby implying that the plaintiff had fabricated it.
These latter features of the present case seem to me to fit squarely into the third category identified by Finlay C.J. in Conway’s case namely the:
“…conduct of the wrongdoer…in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.”
The plaintiff gave evidence that she suffered stress, upset and hurt when her solicitor made known the defendant’s letter to her denying the existence of the accident and referring to her drunkenness (albeit, as I read his letter, at the time she visited his house rather than at the scene of the accident itself). In my view this hurt is an additional element of distress, upset, anxiety and humiliation arising out of the accident which would not have been suffered by the plaintiff had the defendant made good his promise given to the plaintiff at the scene of the accident and a few days later when she first called to his house. I see nothing in the authorities referred to in Swaine nor, indeed, in the observations of Keane C.J. in that case to indicate that an award of aggravated damages in these circumstances is not available to the plaintiff under our law and it is clear that insofar as the judgment of Finlay C.J. in Conway’s case is concerned this conduct on the part of the defendant does justify the making of an award of aggravated damages.
Finally, this conclusion is entirely consistent with the recent decision of the Supreme Court in Philip v. Ryan, a negligence case, (unreported: 12th December, 2004), where McCracken J., speaking for the court said:-
“In reviewing the law at the beginning of this judgment, I pointed out that some doubt had been expressed as to whether aggravated damages should be awarded in negligence claims. I have no doubt that this is a classic example of a case where such damages can and should be awarded.”
Aggravated damages were awarded by the Supreme Court in that case on the basis of what it found to be the manner in which the defence had been conducted, just as I do also in the present case.
In the circumstances, I think the plaintiff is entitled to an additional award of aggravated damages in the amount of €10,000, and is accordingly entitled to a decree in total of €46,808.29.
Noctor v Ireland
[2005] I.E.H.C. 50
Judgment of Finnegan P. delivered on the 1st day of March 2005.
This matter proceeded before me by way of assessment.
The circumstances giving rise to the claim as given in evidence by the Plaintiff are as follows –
The Plaintiff was born on the 2nd April 1959 in Carlow. He was one of fourteen children two of whom died as infants and came eighth in his family. His mother died at the age of 43 when he was some seven years of age leaving him to the care of his father who was some twenty years older than his mother. By Order of the District Court made on the 18th October 1967 the Plaintiff was committed to St. Joseph’s Industrial School Kilkenny on the grounds of being found having a parent who did not exercise proper guardianship. The Plaintiff’s younger brother was also committed to St. Joseph’s Industrial School. Initially the Plaintiff resided in that part of the school known as St. Teresa’s. He describes the treatment while in St. Teresa’s as “pretty good”. Occasionally he received a slap but nothing severe. Having reached the age of twelve he was transferred to another part of the school known as Summerhill, a separate building. Summerhill had previously been a school but was transformed into living quarters for older boys for whom education within St. Joseph’s was discontinued the boys being sent to ordinary schools and in the Plaintiff’s case firstly to the De la Salle School and then to the local technical school. The House Master at Summerhill was David Murray. Prior to the transfer to Summerhill the Plaintiff was interviewed by Mr. Murray and in the course of that interview he was shown a handbook with naked people as I understand it to explain the facts of life. However during the interview Mr. Murray put his hands on the Plaintiff’s penis and commenced rubbing him.
In Summerhill the boys some twelve in number slept in a dormitory which was divided into cubicles some of which were occupied by one boy and others in the case of brothers by two. The boys were of an age between eleven and thirteen years. While attending school outside St. Joseph’s they had their meals and did their homework in Summerhill. Mr. Murray’s role included helping with homework in the sitting room at Summerhill and organising sports. Mr. Murray had his quarters downstairs in Summerhill. The Plaintiff was assigned a single cubicle being the first one adjacent to the door to the sleeping quarters.
Some weeks after moving to Summerhill the Plaintiff was in the downstairs sitting room when the other boys were directed to go to bed and the Plaintiff was detained by Mr. Murray. Mr. Murray sat beside the Plaintiff and fondled his penis. He then directed the Plaintiff to remove his pyjamas and underwear, masturbated him and directed the Plaintiff to do the same to him. The Plaintiff knew that this was wrong and was very uncomfortable following the incident. Mr. Murray told him not to say anything about the incident to anyone. The incident was repeated shortly thereafter but on this occasion the Plaintiff was required to put Mr. Murray’s penis in his mouth and Mr. Murray put the Plaintiff’s penis in his mouth. After this occurrence Mr. Murray gave the Plaintiff a big mug of wine and told him to drink it and gave him a Cuban cigar. The Plaintiff was affected by the alcohol.
At the time of the foregoing incidents the Manager of St. Joseph’s was Sister Conception. After the second mentioned incident the Plaintiff went to Sister Conception and met with her in her parlour. His evidence is that he told her that David Murray put his hands down his pyjamas and that he did not want him to do that but told her nothing further. Sister Conception’s response was to tell him to watch himself.
The next incident occurred when Mr. Murray came to the Plaintiff’s cubicle after all the boys in the sleeping area had gone to bed. He woke the Plaintiff and undressed him, removed his own clothes and got into the bed. Mr. Murray attempted anal rape but the Plaintiff successfully resisted. Mr. Murray’s hand was over the Plaintiff’s mouth. Mr. Murray kissed the Plaintiff on the lips. He ejaculated over the Plaintiff’s backside. The Plaintiff was in shock. At this time the Plaintiff was terrified of Mr. Murray. The abuse continued regularly thereafter. On another occasion shortly afterwards Mr. Murray took the Plaintiff to his room and directed him to remove his clothes. When the Plaintiff hesitated he was struck on the ear. The Plaintiff was ordered to lie on the bed which he did. Mr. Murray used a lubricant and anally raped the Plaintiff. Again the Plaintiff was ordered not to tell anyone what had happened. Thereafter the Plaintiff was anally raped two or three times each week mostly in Mr. Murray’s room.
From time to time Mr. Murray would take the Plaintiff to the pictures and he would put his coat across the Plaintiff’s lap and masturbate him and require the Plaintiff to masturbate him. The boys were taken on holidays from time to time when the abuse continued. Mr. Murray took the Plaintiff to his own home in Dublin where again the Plaintiff was abused. The Plaintiff could recall no time during his stay in Summerhill when he was not being abused.
On one occasion the Plaintiff was taken to Mr. Murray’s room and tied to a chair. Mr. Murray then had anal intercourse with him. Mr. Murray then picked up his Alsatian dog, put the dog’s front paws on the Plaintiff’s back and forced the dog to mount the Plaintiff. The Plaintiff’s back was severely scraped.
Following one incident of abuse the Plaintiff was bleeding from his back passage and on his way home from the technical school called to St. Joseph’s school doctor. She refused to examine him and sent him back to St. Joseph’s. Later that evening Mr. Murray asked the Plaintiff where he had been and struck him across the face with a hurley and broke his nose and gave him a severe beating. Mr. Murray explained the injuries by saying that the Plaintiff fell down the stairs.
Throughout this time he received beatings from Mr. Murray sometimes with a hurley and others with a brush or strap. On many occasions when abusing the Plaintiff Mr. Murray would have his Alsatian dog with him and he would set the dog on the Plaintiff. The Plaintiff was constantly threatened by Mr. Murray not to tell anyone about what was happening. On one occasion late at night when it was raining heavily Mr. Murray took him out to the vegetable garden and made him dig up a cabbage plant: he then told the Plaintiff that if he ever told anyone about the abuse he would end up there and no one would ever find him, that he would kill him and leave him there. The Plaintiff believed this and was terrified.
The Plaintiff said that he informed Sister Conception of the abuse on a number of occasions. On one occasion he told her in the presence of Sergeant John Tuohy and Sergeant Eddie Geraghty in her parlour. Sergeant Tuohy and Sergeant Geraghty at different periods assisted at St. Joseph’s on a voluntary basis principally with sports. Their attendance was organised by Sister Conception. The Plaintiff told the meeting that Mr. Murray was feeling his penis and making him do the same to him. A short time later the Plaintiff had a meeting with the Bishop of Ossory Dr. Birch, Sister Conception, Sergeant Tuohy and Sergeant Geraghty at which he told the Bishop about Mr. Murray’s conduct. Specifically he told the Bishop that Mr. Murray was feeling his penis and made him do the same to him and that he was doing other things. The Plaintiff also complained to Mr. Buckley the gardener at St. Joseph’s about the abuse.
Notwithstanding the complaints the abuse continued and it affected the Plaintiff. He had low self esteem. He was not doing his homework. Mr. Murray would offer to help the Plaintiff with his homework but in fact the homework was never done as Mr. Murray would abuse the Plaintiff. This led to the school sending complaints to Mr. Murray about the Plaintiff’s homework and resulted in the Plaintiff being beaten for not doing his homework. The Plaintiff was attending school at the De La Salle in his first two years in Summerhill and for the next two years attended the local technical school. He did very badly at school. Mr. Murray insisted upon him drinking a lot of wine and very often when he went to school he fell asleep. He suffered from hangovers and often felt very sick. The Plaintiff never did any examinations. He can read and write.
When the Plaintiff was approximately fourteen years of age Mr. Murray left Summerhill for a period during which there was another House Master. He regularly beat the boys in Summerhill. When he left after a period of approximately nine months Mr. Murray returned and the abuse recommenced as bad as ever. Mr. Murray’s conduct confused the Plaintiff and he had a concern that he might be gay. Mr. Murray told him to stay away from girls and that if he ever caught him with a girl he would beat him.
When the Plaintiff left the technical school he did some horse riding on a voluntary basis at Gowran Park otherwise he spent time around the town. Shortly before he left St. Joseph’s the Plaintiff’s accommodation was changed. David Murray set up a small flat in which the Plaintiff and a friend resided. Notwithstanding the change the abuse continued.
At about the age of sixteen the Plaintiff got a job on the Curragh with a race horse trainer Mr. Prendergast as he was thinking about becoming a jockey. However he left after a short period. In April 1975 the Plaintiff reached sixteen years of age and his detention as such ceased but he continued to reside in the flat at St. Joseph’s. He got a job in Woolworths and later with Marlowe Dry Cleaners each of which was arranged for him by St. Joseph’s. He was then aged about sixteen years. The Proprietor of Marlowe’s was David Daly. The Plaintiff was unsure as to where he was living at this time but thinks it was St. Joseph’s. He did however live with Mr. Daly and his wife for some time. About this time he also lived with a family in Kilkenny. From time to time he moved back and forth to St. Joseph’s. He continued working at Marlowes from 1975 to 1980 residing from time to time at different addresses in Kilkenny. During this period he told Mr. Daly what had happened to him in St. Joseph’s. As a result Mr. Daly accompanied the Plaintiff to St. Joseph’s to meet with Sister Conception. Mr. Daly told Sister Conception that there was abuse going on although he could not remember the words used. Her reply was that the Plaintiff tended to exaggerate quite a lot. During this time the Plaintiff told quite a number of people about the abuse which he had suffered.
In 1980 the Plaintiff joined the Naval Service. He had difficulty with his initial training which ordinarily lasted some twelve weeks but which took him some nine months. He became depressed while in the Naval Service and was admitted to hospital in Cork on the 19th November 1982 and detained until the 23rd November 1982 with self inflicted lacerations to both wrists. He was diagnosed as suffering from a personality disorder with disturbed family background. He was examined by a Medical Board which found that he suffered from depression and was suicidal and his discharge was recommended on the grounds that he did not possess the physical standards required for service. He was transferred to St. Stephen’s Hospital on the 22nd November 1982. The Plaintiff started drinking during his time in the Naval Service. The trigger for the Plaintiff cutting his wrists was that he had flashbacks of his period at Summerhill and of the abuse which he suffered. He was approximately twenty three years of age when discharged from the Naval Service.
Following his discharge from the Naval Service the Plaintiff returned to Carlow. He did not obtain any work and was drinking very heavily. From 1985 to 1987 he worked as a DJ with a Radio Station in Carlow on a voluntary basis from 8 o’clock in the evening until midnight. He did not work again until 1994. He felt limited in what he could do as the only job of which he had experience was dry cleaning: he had no education and could not fill in forms and in particular he had a difficulty in filling in his residence for the period he was in St. Joseph’s School. He did get a period of employment for two weeks in dry cleaning at Christmas 1994 and again at Christmas 1995. He got occasional work marking the board in a Bookmakers Office. During this period he moved around a lot living at different places in Carlow and had difficulty settling. On occasions he slept rough.
Commencing on the 27th January 1989 the Plaintiff had 28 admissions to St. Dympna’s Hospital Carlow. These admissions are detailed in a report of Dr. Maire Horgan, Consultant Psychiatrist at St. Dympna’s Hospital as follows –
“1st Admission: 27/1/1989 – 3/2/1989 (Voluntary Status)
Mr. Noctor was brought to St. Dympna’s Hospital in an intoxicated state by Gardai. He had earlier caused a disturbance at his girlfriend’s house necessitating the Gardai’s involvement. Collateral from his sister and brother at the time of admission, indicated Mr. Noctor’s excessive alcohol use and gambling addiction over many previous years. They indicated that they were completely unable to cope with his behaviour in this regard. On admission Mr. Noctor’s mood was depressed and he intimated suicidal ideation. Once sober, Mr. Noctor’s mood recovered spontaneously without need for drug therapy. There was no evidence on examination to suggest the presence of psychiatric illness. He was discharged to the day hospital and out-patient clinic for ongoing support.
2nd Admission: 1/4/1989 – 18/4/1989 (Voluntary Status)
Mr. Noctor was readmitted and admitted to excessive alcohol use and almost continuous gambling since his discharge from hospital. He was rowing constantly with his brother and sister and girlfriend. He was homeless on admission. He was intoxicated on admission with depressed mood and suicidal ideation. Once sober his mood rapidly recovered spontaneously. No medication was required. There was no evidence to suggest that Mr. Noctor was formally psychiatrically unwell. Mr. Noctor was viewed as an emotionally immature and vulnerable man with a propensity to excessive alcohol use and pathological gambling. His depressed mood and suicidality in the absence of any obvious cause was deemed to represent the depressive effect of excessive alcohol in predisposed individuals. Mr. Noctor was discharged to his brother’s care. He was discharged to the day hospital and out-patient clinic for ongoing support.
3rd Admission: 2/6/1989 – 9/6/1989 (Voluntary Status)
Mr. Noctor was readmitted following a row with his girlfriend. He was homeless on admission. He denied excessive alcohol use in the preceding weeks and claimed to be attending gamblers anonymous. He was assisted in finding accommodation on discharge to the day hospital and the out-patient clinic for support.
4th Admission: 5/8/1989 – 18/8/1989 (Voluntary Status)
Mr. Noctor was readmitted following a row with his girlfriend. He denied excessive alcohol use or excessive gambling in the weeks prior to his admission. He claimed not to be coping well in his flat on his own. He described himself as feeling lonely with low mood. His mood recovered quickly without drug therapy following hospitalisation and Mr. Noctor resumed his normal persona on the admission unit namely a cheerful, helpful, energetic individual who seemed contented and relaxed in hospital. Again Mr. Noctor was viewed as an emotionally immature and vulnerable man with poor coping skills and a propensity to excessive alcohol use and gambling addiction. He was discharged to the day hospital and out-patient clinic for ongoing support.
5th Admission: 15/9/1989 – 21/9/1989 (Voluntary Status)
Mr. Noctor was admitted following an overdose in the context of excessive alcohol use. He admitted that his gambling and drinking were currently out of control and had been thus in the weeks prior to admission. As before, his mood was depressed with suicidal ideation on admission but rapidly recovered spontaneously following brief detoxification. As before, Mr. Noctor quickly regained his cheerful, energetic, helpful persona on the admission unit prior to discharge. As before, he was discharged to attend the day hospital and out-patient department for ongoing support. He continued to be viewed as an emotionally, vulnerable and immature man with alcohol and gambling addiction.
6th Admission: 15/12/1989 – 19/12/1989 (Voluntary Status)
Mr. Noctor was readmitted with the complaint of persistent headaches leading to depressed mood. He denied excessive alcohol use or pathological gambling in the weeks prior to admission. His headaches recovered without recourse to any investigation or treatment and his mood also spontaneously lifted. He was anxious for an early discharge to return to his work in a betting shop. He was offered ongoing day hospital and out-patient support as before. Again his presentation was viewed in similar terms to before.
7th Admission: 1/1/1990 – 8/1/1990 (Voluntary Status)
Mr. Noctor was admitted complaining of accommodation problems. He also stated that he felt unable to cope outside the hospital. He was discharged to attend at the day hospital on a daily basis for continued support and encouragement. As before his presentation was understood in similar terms to before.
8th Admission: 18/1/1990 – 7/2/1990 (Voluntary Status)
Mr. Noctor was readmitted in an intoxicated state. He had been gambling and drinking to excess prior to admission. He was homeless following his eviction from his accommodation owing to non payment of rent. As before he displayed depressed mood and suicidal ideation on admission but rapidly and spontaneously recovered upon sobriety. Again as before he regained his cheerful, energetic, helpful persona on the ward. He indicated a willingness to attend Ais Eiri in Wexford and arrangements were made to discharge him to same.
9th Admission: 3/4/1992 – 9/4/1992 (Voluntary Status)
Readmitted in an intoxicated state. Admitted to a period of binge drinking prior to admission. Admission precipitated by his intoxicated state and by his having rowed with his brother on the day in question. As before he rapidly recovered spontaneously and was discharged to attend the day hospital and out-patient department facilities .
10th Admission: 28/1/1993 – 24/2/1993 (Voluntary Status
Readmitted with depressed mood and suicidal ideation. He denied excessive alcohol use or pathological gambling prior to admission. He claimed to be coping poorly in a flat on his own in Tullow. He had ongoing difficulties in his relationship with his girlfriend. He stated that she left him pre Christmas following disclosure of her pregnancy. He did not know her whereabouts and this disturbed him. Again as before his mood rapidly recovered spontaneously and he was discharged to attend the day hospital and the out-patient facilities for ongoing support.
11th Admission: 23/2/1993 – 10/3/1993 (Voluntary Status)
Readmitted with depressed mood and suicidal ideation. He stated that his depressed mood recurred immediately following his last discharge. He stated that he was lonely and unable to cope in Tullow. Again as before within a couple of days of hospitalisation his mood recovered spontaneously and he resumed his normal, energetic, cheerful persona. His brother arranged accommodation for him in Carlow. He was discharged feeling well and optimistic re the future. To attend the day hospital and out-patients clinic as before.
12th Admission: 10/3/1993 – 4/4/1993 (Temporary Status regraded to Voluntary Status)
Readmitted on a Temporary Certificate. He had been drinking since discharge from hospital earlier in the day. He was intoxicated, angry and aggressive on admission. Status was regraded to voluntary as soon as sobriety ensued. Mr. Noctor remained moody and sullen for a week following admission and then resumed his normal, helpful, cheerful self with no evidence of formal psychiatric illness on examination. Again as before he was discharged to attend the day hospital and out-patient department for support.
13th Admission: 4/11/1993 – 18/11/1993 (Voluntary Status)
Readmitted with depressed mood and suicidal ideation. He claimed that his depressed mood related to ongoing difficulties with his girlfriend and her family over the custody of their six month old baby daughter. Mr. Noctor and his girlfriend indicated a wish to rear their baby but his girlfriend’s family strongly objected and one member was proposing to adopt the baby. Mr. Noctor gradually settled and was in good optimistic form on discharge. The community care social worker was involved in an attempt to assist resolve the custody issues. Mr. Noctor was discharged to attend the day hospital and the out-patient department services as before.
14th Admission: 2/12/1993 – 21/12/1993 (Voluntary Status)
Mr. Noctor was readmitted following a row with his girlfriend and described ongoing difficulties in their relationship. He displayed depressed mood and suicidal ideation on admission. He settled quickly in hospital without the need for pharmacotherapy. During his admission his relationship with his girlfriend remained turbulent and Mr. Noctor’s mood and behaviour reflected this situation. He was discharged to the day hospital and out-patient department as before for support and follow up.
15th Admission: 15/2/1994 – 16/2/1994 (Voluntary Status)
Mr. Noctor was admitted in an intoxicated, aggressive, disorderly and disruptive frame of mind. He was expressing suicidal ideation. When sober he continued to describe ongoing difficulties with his girlfriend. He was distressed in particular that she had given up their daughter to her sister for adoption. He was rapidly anxious for discharge. His mood returned to normal as on every previous occasion within a relatively short period of time without the need for pharmacotherapy. As before he was discharged to the day hospital and out-patient department for ongoing support and follow up.
16th Admission: 8/3/1994 – 9/3/1994 (Voluntary Status)
Mr. Noctor was readmitted with ongoing upset and distress over his relationship with his girlfriend and issues to do with the custody of their daughter. He had some alcohol taken on admission. As before he rapidly settled spontaneously. He was discharged to the day hospital and out-patient department for ongoing follow up.
17th Admission: 19/9/1994 – 11/10/1994 (Voluntary Status)
Mr. Noctor was referred to St. Dympna’s Hospital from St. Stephen’s Hospital in Cork. He had been living in Cork with his girlfriend but was unable to cope with the ongoing battle to regain custody of their daughter and the ongoing difficulties between himself and his girlfriend. His girlfriend had broken off the relationship on discovery of her second pregnancy. Ray was unable to cope with his situation and was admitted to St. Stephen’s Psychiatric Unit Cork. On admission to St. Dympna’s he gradually settled and opted to remain in Carlow on discharge. No medication was prescribed. Discharge arrangements were as before.
18th Admission: 10/11/1994 – 17/12/1994 (Voluntary Status)
Mr. Noctor was admitted following an overdose whilst intoxicated. When sober he was claiming depressed mood secondary to ongoing difficulties in his relationship with his girlfriend and ongoing distress at not having custody of their daughter. His admission on this occasion was a turbulent one wherein he absconded on a number of occasions to go drinking. Eventually he was reconciled with his girlfriend and they were planning marriage. As before Mr. Noctor was discharged in good form to attend the day hospital and out-patient services. As before he was discharged on no medication. Following the above admission Mr. Noctor was questioned by Gardai in relation to their investigation into allegations that former residents of St. Joseph’s Kilkenny were subjected to sexual abuse during their time there. Upon his questioning by Gardai Mr. Noctor for the first time ever disclosed that he had in fact been sexually abused while resident there. Heretofore the medical records show that Mr. Noctor had invariably described his childhood experiences as uneventful. It is routine psychiatric practice to enquire into all aspects of the patient’s life and in particular into childhood experiences as part of the patient’s psychiatric examination. Regrettably it appears as though Mr. Noctor was unable to disclose his earlier experiences to us.
19th Admission: 18/4/1995 – 27/4/1995 (Voluntary Status)
Mr. Noctor was readmitted feeling stressed, depressed and unable to cope. He cited ongoing difficulties and uncertainties in his relationship with his girlfriend, shame at the public knowledge of his past sexual abuse, pressure from his own family in relation to their expectations of monetary gain in the light of his childhood sexual abuse and the probability of his being compensated in relation to the same. Mr. Noctor also cited ongoing difficulties in relation to the unresolved issue of the custody of his daughter. Mr. Noctor gradually settled with support and encouragement. He was attending a community care appointed Social Worker for counselling in relation to his disclosed sexual abuse. He was discharged in good form and no medications to attend the day hospital and out-patient department for support and follow up.
20th Admission: 17/5/1995 – 29/5/1995 (Voluntary Status)
Mr. Noctor was readmitted following the break-up of his relationship with his girlfriend post the birth of their son. He was homeless and living in the St. Vincent de Paul Hostel on admission. He displayed depressed mood and suicidal ideation on admission. He indicated ongoing distress at the recollection of his prior sexual abuse. He also indicated ongoing distress over legal wrangles in relation to the custody of his daughter. This admission was a turbulent one with Mr. Noctor leaving hospital on a number of occasions to attempt to visit his girlfriend. He also left on occasions to go drinking. Mr. Noctor was eventually reconciled with his girlfriend and was discharged to attend the day hospital and out-patient department for support and follow up.
21st Admission: 16/10/1995 – 17/10/1995 (Voluntary Status)
Mr. Noctor was admitted following a row with his girlfriend. Mr. Noctor had been drinking prior to admission. Physical violence was alleged by both parties in relation to one another during the course of the row which precipitated Mr. Noctor’s admission. Mr. Noctor was angry and expressing suicidal ideation on admission. He absconded from the hospital and was returned by the Gardai. He settled rapidly once sober and was discharged to attend the day hospital and out-patient department. No medications were prescribed.
22nd Admission: 23/1/1996 – 26/1/1996 (Voluntary Status)
Mr. Noctor was admitted in an emotionally over wrought state claiming depressed mood and inability to cope with day to day life and associated problems. He had been staying in Cuan Mhuire Alcohol and Drug Rehabilitation Centre, Athy, Co. Kildare over the preceding months. Up until a very short time prior to his referral to St. Dympna’s he had been very well and enjoying and availing positively of his experiences in Cuan Mhuire. He described working in the coffee shop and giving talks in schools on alcoholism. On admission to St. Dympna’s he displayed marginally depressed mood. However his depressed mood lifted rapidly and he regained his normal cheerful, energetic persona. He requested permission to return to Cuan Mhuire and same was allowed.
23rd Admission: 9/9/1996 – 11/9/1996 (Voluntary Status)
Mr. Noctor was admitted in an intoxicated and very disorderly state. He intimated that he was upset that his girlfriend had changed her mind about marriage. He was aggressive, abusive and disruptive on the admission unit. He settled over the ensuing 24 hours. Once sober he claimed no recollection of his behaviour on admission. He was discharged in reasonable form to attend the day hospital and out-patient department for support. No medication was prescribed.
24th Admission: 12/1/1997 – 13/1/1997 (Voluntary Status)
Mr. Noctor was admitted following an overdose of minor tranquilising medication. He described himself as upset at his forthcoming court case in relation to his past experience of child sexual abuse. On admission to St. Dympna’s he was relieved to be alive and was regretting his impulsive overdose. He settled quickly in hospital and rapidly requested discharge to return to work. He represented the following day claiming depressed mood and inability to cope and requesting admission which was granted.
25th Admission: 14/1/1997 – 3/3/1997 (Voluntary Status)
Mr. Noctor was readmitted as described above. The admission proved to be a turbulent one with Mr. Noctor absconding to go drinking on a number of occasions whilst an inpatient. He continued to be upset in relation to his past child sexual abuse and the impending court case in relation to the same. Additionally his relationship with his girlfriend remained turbulent and unsatisfactory. He gradually settled with support, encouragement and the opportunity to talk. He continued to avail of his child sexual abuse counselling as provided by the Community Care social work department. In order to attempt to assist his ability to cope Mr. Noctor was allowed to leave hospital on leave during week days and to return to the hospital at weekends. This arrangement appears to have assisted him to better cope and he was eventually fully discharged on the 3/3/97.
26th Admission: 3/8/1997 – 3/8/1997 (Voluntary Status)
Mr. Noctor was admitted in an intoxicated and very disorderly state. He absconded from the hospital and was returned by the Gardai. Once sober he apologised for his behaviour. He intimated that emotional distress at the recollection of earlier childhood sexual abuse had precipitated his drinking bout. He wad discharged to attend the day hospital and the out-patient services for ongoing follow up and support.
27th Admission: 27/12/1997 – 29/12/1997 (Voluntary Status)
Mr. Noctor was admitted in an intoxicated and distressed state. On admission he was intimating suicidal ideation. He was speaking of his prior child sexual abuse. Once sober he regretted his alcohol excess attributing it to a family party which he had attended on the previous evening. He stated that his family had encouraged him to drink and to enjoy himself. He acknowledged the need to limit his alcohol use severely in order to avoid a recurrence. He claimed to have been more careful in this regard in more recent times than formerly.
28th Admission: 29/5/1999 – 1/6/1999
Mr. Noctor was admitted in an intoxicated state. He cited ongoing and apparently insoluble difficulties in his relationship with his girlfriend now his wife. He is now of the opinion that this is for him an emotionally and physically abusive relationship. He seems uncertain as to how to proceed in the relationship. Any decisions in this regard are complicated by the fact that they have two children in common and that his wife is now expecting a third child in the early new year. Mr. Noctor was not anxious to remain in hospital. He was confident of his ability to cope and regretted his indiscretion around alcohol abuse. He was discharged to the out-patient clinic and day hospital for support and ongoing follow up.”
The Plaintiff did not attend St. Dympna’s Hospital following his discharge on the 1st June 1999.
In relation to his attendances at St. Dympna’s Hospital the Plaintiff explained that at the time he was drinking quite a lot, that he was often homeless and that he found comfort there. He got used to it and liked it. His attendances were largely directly related to bouts of binge drinking which in turn were brought on by some other form of upset.
The Plaintiff married his girlfriend in 1998. Their eldest child a daughter lives with his wife’s sister and he enjoys access to her and has a good relationship with her. Two other children, boys, reside with the Plaintiff and his wife. The Plaintiff’s relationship with his wife both before and after marriage was turbulent and this caused him upset which caused him to binge drink.
In the period 1982 to 1999 the Plaintiff’s life was very disorganised. He occasionally got work in a bookies office marking the board. On occasions he would spend all day in bed. He lived on his dole money which rarely lasted the week. His place of residence changed regularly. His history of abuse caused him to have a fear of working with a large group of people as he felt both shame and guilt. Throughout this period he thought a lot about the abuse and became depressed and cried and felt sorry for himself. Matters began to improve once he informed Dr. Horgan of his history of abuse in that she believed him and treated him for its consequences. He was one of the witnesses against Mr. Murray when he was charged with offences relating to child abuse and he gave evidence at the hearing. He obtained relief from Mr. Murray’s conviction in 1997.
In 1998 the Plaintiff went on a back to work scheme. He was employed by a contract cleaning company for a period of four months in 1998 but was let go due to redundancy. He next obtained employment in November 2000 as a machine minder with Braun in Carlow. He got on well with that job. He worked in the gas room where he filled gas cartridges some 30,000 per shift. He got on well with his co workers. The job as he described it was a responsible one. He was a shop steward while there. Unfortunately he was one of 150 employees made redundant in August 2001. His period of employment totalled nine months. He was then unemployed until August 2003 when he obtained employment with Tesco as a shelf packer and he remains in that employment and is happy there. However he has had occasional absences due to his recourse to drink. Nonetheless he feels confident enough to consider applying for a course for supervisors and feels he could satisfactorily complete the same.
From time to time the Plaintiff has attended Cuan Mhuire in relation to his drinking and continued to attend there after his last discharge from St. Dympna’s Hospital: he also avails of counselling in relation to that problem.
The Plaintiff was kept in touch with the progress of his case by his solicitors and was aware that liability was being denied by the Defendants. He welcomed the fact that it was now withdrawn. He also welcomed the apology which had been given by the State and by the Sisters of Charity notwithstanding that it was late in the day.
In cross examination the Plaintiff said that his father had visited him during his early days at St. Joseph’s but that he had been asked not to come again and that he did not know the reason for this. He agreed that his attendances at St. Dympna’s Hospital arose from a number of problems which he experienced – drinking, accommodation problems, gambling. He would go to St. Dympna’s when he felt low. St. Dympna’s Hospital allowed him to stay there until he had suitable accommodation. Once he was sober he would be back to normal. His accommodation problems arose from his failure to pay for the same. He likes to gamble although he does not gamble any more. While he was now happy that his first child should be with his wife’s sister at one point this was something that upset him. He was ashamed that the public in Kilkenny knew about his being sexually abused since his name was mentioned in the papers two or three years ago: however he had an opportunity of asking that his name not be mentioned in the papers but he wanted his name mentioned. He had attended Cuan Mhuire in relation to his problems with drink and received counselling there not alone in relation to drink but also in relation to the abuse and this was of great help to him. He did not inform St. Dympna’s Hospital of his history of sexual abuse initially because he did not think they would believe him: he only disclosed the history when he became comfortable with Dr. Horgan. He had told other people about the abuse but this had been twenty years previously. He accepted that over the past four years he had taken control of his drinking. He accepted that he is friendly, kindly, helpful and intelligent. He plays chess, reads the newspapers and has an interest in current affairs and in history. He is energetic and hardworking when he has a job. The problem for him in obtaining employment is that on an application he would have to give his history and disclose that he had been in St. Joseph’s. He agreed with the report of Miss Aine Ennis who saw him in March 1999 that he had emerged from his experiences with a mostly positive, hopeful attitude to life. He agreed with the report of Dr. Veasey that he was a moderate drinker now. He agreed that he told Dr. O’Donogue that he had educated himself when he left St. Joseph’s by watching videos and documentaries and that he had an interest in history, politics and current affairs.
With regard to employment he intends to apply for the supervisor course which is available to him in Tesco. While at Braun he had one row and that was related to drink. He worked in Braun for eleven months before being made redundant and he believed that but for the redundancy he would still be there. 160 people were let go at the same time. Braun thought highly of him and he had a responsible job. After he left St. Joseph’s and required accommodation Sister Conception would allow him to stay in St. Joseph’s. It was put to the Plaintiff that he told Sister Conception in relation to Mr. Murray that he was being physically harassed but not that he was being sexually abused: he disagreed. He agreed that he told Sister Conception that Mr. Murray was “at him” and he agreed that he would use a phrase like that. He agreed that he did not go into detail with her.
With regard to his time in the Naval Service he drank a lot. He did not like the Navy and did not like going to sea. He would have liked to have been a physical training instructor. He did a course at the Curragh for this and did very well. On a voluntary basis he had given classes to children in physical education.
He had given statements to the Gardai. He accepted that in those statements he had never mentioned the meetings which he now alleged with Sister Conception, Sergeant Tuohy, Sergeant Geraghty and Bishop Birch: however he was sure that he mentioned the meetings to the Gardai at that time. The statement was taken from him by Sergeant Tuohy who should have been aware of that complaint. He agreed that he may not have mentioned to the school doctor whom he attended in relation to bleeding that he had been sexually assaulted.
Three witnesses were called by the Plaintiff in relation to the facts of the case Mr. Buckley, Mr. Heffernan and Mr. Daly.
Mr. Buckley is a Forrester and was employed in Kilkenny between July 1973 and October 1974 and was employed part time at St. Joseph’s from September 1973 to mid1974 assisting with sports, homework and leisure supervision of the boys in Summerhill. In the Spring of 1974 the Plaintiff spoke to him about being interfered with in bed by Mr. Murray and of being afraid to do anything about this because of possible repercussions. He understood that what was going on was homosexuality. He built up a relationship of trust with the Plaintiff and persuaded him that the matter should be reported to Sister Conception and that this should be done at a time when Mr. Murray was away from the building. The Plaintiff agreed to go to Sister Conception with the witness. They met with Sister Conception in her sitting room. In his presence the Plaintiff told Sister Conception that he was being interfered with in bed by Mr. Murray. The witness did nothing further about the matter as he did not work in St. Joseph’s for June, July or August of that year. He understood from Sister Conception that she would look into the complaint. Sister Conception could have had no doubt as to what she was being told was going on in Summerhill. At the time the witness was 23 years of age. In cross examination the witness agreed that he had made a statement to the Gardai and that in that statement he said that the Plaintiff was vaguely saying that he was being interfered with. At the time he understood the phrase interfered with as having a sexual connotation. He agreed that in his statement to the Gardai in relation to the interview with Sister Conception he said “I outlined the allegations telling Sister Conception that David Murray was interfering with the boys and we were there to make an official complaint about David Murray. Raymond Noctor told Sister Conception in a vague sort of way about what David Murray was doing to him. I feel that Raymond Noctor was terrified of telling the full story and he was afraid he would not be believed by anybody.”
By “vague” he meant to convey that technical words for body parts were not used nor were words such as “homosexual activities”. He agreed that the Plaintiff had said to Sister Conception that he was being interfered with. However he was satisfied that Sister Conception was told that Mr. Murray was putting his hands into the Plaintiff’s bed.
William Heffernan gave evidence that he moved from St. Teresa’s to Summerhill in 1971 and shared the same dormitory as the Plaintiff. He had been interfered with by Mr. Murray sexually. He went to Sister Conception and told her that he was receiving beatings from Mr. Murray after receiving a particularly severe beating. While he did not explain in great detail he told her that there was more happening. Her response was to shake her head and say “no, no, no”. In cross examination it was put to the witness that in his statement to the Gardai he had not mentioned complaining of sexual abuse to Sister Conception and he agreed.
David Daly gave evidence that he was the Manager of Marlowes Cleaners in Kilkenny. He first met the Plaintiff when the Plaintiff was fifteen years of age. He interviewed the Plaintiff for a job and the Plaintiff started to work for him. About six months later the Plaintiff told him that he had been sexually abused in St. Joseph’s. At that time the witness was twenty years of age. It was agreed that he and the Plaintiff should go to Sister Conception. He told her that the Plaintiff was being sexually abused. Sister Conception dismissed the complaint completely saying that the Plaintiff was inclined to exaggerate. Shortly thereafter the Plaintiff moved out of St. Joseph’s to live with the witness and his wife. The Plaintiff continued to work with him until the cleaners closed in 1979. During the time that the Plaintiff was employed with him he was fine. He had heard nothing further about his complaint to Sister Conception. In cross examination the witness said that the Plaintiff had told him that he was being sexually abused. He told Sister Conception that the Plaintiff was being sexually abused. He had not received any details of the sexual abuse from the Plaintiff and accordingly gave no detail to Sister Conception. In his statement to the Gardai he had said that Sister Conception in response to the complaint said that that sort of thing wouldn’t happen there and he agreed that this was correct. The interview lasted a couple of minutes only. He told Sister Conception that Mr. Murray was the abuser.
Mr. Liam Quigley gave evidence. In the 1970s he was involved in organising sports particularly ladies basketball in a number of convents including St. Joseph’s. In the course of his activities as a trade union activist it came to his attention that a boy was being sexually molested by an adult while he was in bed in St. Joseph’s. He called to St. Joseph’s one evening and asked to speak to Sister Stanislaus whom he knew. Sister Stanislaus was in an area of the convent occupied by Kilkenny Social Services and he relayed this information to her there. She was dismissive: her view was that the children often told outrageous stories to seek attention. The interview took less than a minute. In cross examination Mr. Quigley said that he became Shop Steward in 1974 and he became aware of the complaint while he was a Shop Steward. It was most likely in 1976. He did not know the name of the boy nor the name of the abuser. Sister Stanislaus was not involved in the running of St. Joseph’s Industrial School but was involved with the Kilkenny Social Services but he expected her to become involved.
The Defendants called a number of witnesses dealing with some aspects of the facts given in evidence by the Plaintiff namely Sergeant John Tuohy, Sergeant Eddie Geraghty and Sister Joseph Conception. I propose dealing with their evidence in advance of dealing with the expert evidence led on behalf of the Plaintiff.
Sergeant Tuohy gave evidence that he moved to Kilkenny as a Garda in 1966. In 1995 he was involved in the investigation which led to Mr. Murray being charged. He became involved on a voluntary basis with St. Joseph’s in late 1971 or early 1972 on an occasional basis attending perhaps two or three times per month. Sergeant Geraghty was also involved and when he was transferred the witness attended more regularly, several nights per week. He ran a disco for the children each Friday and supervised study and games and drove the mini bus on outings. He knew the Plaintiff well and the Plaintiff being very friendly would talk to him when they met on the street. The first time that sexual abuse came to his notice was in January 1995 when he was informed of it by another former pupil. At interview that pupil gave him the Plaintiff’s name and he interviewed the Plaintiff and took a statement from him. He was not aware of sexual abuse at St. Joseph’s in the 1970s with the exception of one case: this case related to a child who was not in care who was interfered with by an employee of St. Joseph’s who was dismissed. He never had a meeting with Sister Conception in relation to sexual abuse of any child in the school. The meetings which the Plaintiff suggested took place between the witness Sergeant Geraghty and Sister Conception and between the witness Sergeant Geraghty, Sister Conception and Bishop Birch never took place. In cross examination he gave the date of Sergeant Geraghty’s departure as 1972. He never had a meeting which involved Sergeant Geraghty and Sister Conception. Sister Conception had brought one case of abuse to his attention: a child from outside the school was visiting and he was sexually abused by a child care worker. This was approximately 1977. While the term sexual abuse was not used by Sister Conception or the witness at that time Sister Conception was clear as to what was involved – that a child had been interfered with.
Sergeant Geraghty gave evidence. He had been involved with St. Joseph’s until his transfer to County Monaghan in 1972. In 1970 and 1971 he was Juvenile Liaison Officer and so dealing with young people. He was quite involved with sports but more to do with the girls than the boys. He was later transferred to County Laois when he resumed his association with St. Joseph’s attending there occasionally on Saturday nights. He knew the Plaintiff. The first he knew about sexual impropriety at St. Joseph’s was when he read of it in the paper in 1998. He was not present with Sergeant Tuohy and the Plaintiff when allegations of sexual abuse were made. Sergeant Tuohy and the witness were only present at the same time perhaps once per year. There was no meeting with Bishop Birch and he had never met with Bishop Birch in relation to St. Joseph’s. He considered himself to be quite friendly with Sister Conception. She had never mentioned any sexual assaults on the children to him. Had he been aware of allegations of sexual abuse he would have taken a statement and pursued the matter from there. In cross examination he said that he would have found an allegation of sexual abuse startling and would remember it. After he resumed his attendances at St. Joseph’s in 1981 Sister Conception had never mentioned to him anything about David Murray or the reason why he had left.
Sister Joseph Conception gave evidence. She became Manager of St. Joseph’s in 1972 but had worked there previously in charge of a group of children. She continued as Manager until 1986. She remembered the Plaintiff. She was not aware that the Plaintiff had been sexually abused. She understood the Plaintiff to tell her that he was physically abused. She had received complaints about Mr. Murray that he was physically abusing the boys but could not specifically remember a complaint from the Plaintiff. The Plaintiff never told her that Mr. Murray had put his hand down his pyjamas. There was no meeting between the Plaintiff, the witness, Sergeant Tuohy and Sergeant Geraghty at which a complaint of being sexually abused was made. There was no meeting between the Plaintiff, the witness, Sergeant Tuohy and Sergeant Geraghty with Bishop Birch. The witness remembered meeting with William Heffernan but she understood him to say that the boys were being physically abused. She remembered Mr. Buckley well but could not recollect the meeting of which he had given evidence. She had no recollection of meeting with Mr. Daly. Had she been aware of a complaint of sexual abuse she would have asked Sergeant Tuohy or Sergeant Geraghty about the same.
In the course of cross examination the witness said that during Mr. Murray’s period at the school the boys were unhappy and running away and she asked Dr. Maloney to speak with them. She reported back that there was nothing to worry about. She mentioned to Mr. Murray that the boys were unhappy with him and had complained about physical abuse. If the boys complained that Mr. Murray was “at them” she understood this to mean that he was punishing them. One day a boy David Purcell told her that Mr. Murray was abusing the boys and she reported it to the Department of Education. She understood from David Purcell that the punishment was so severe that she would have to let Mr. Murray go and she went to him and told him that he could not stay because the boys are unhappy and that he was punishing them too severely and at that point Mr. Murray agreed to give notice. David Murray had been employed from 1972 to 1976 except for a period of nine months when he left. He left because he was dissatisfied with his salary. After nine months he asked if he could come back and he was accepted back because St. Joseph’s had no trained people and she was delighted to get him back. As best she could remember the first complaint of physical abuse by Mr. Murray occurred about a year after he arrived. She knew that Mr. Murray was physically very hard on the boys but left him in charge. However the complaints were not very frequent. The Plaintiff never told her when he made his complaint against Mr. Murray that Mr. Murray had put his hands down his pyjamas: the complaint as she understood it was that Mr. Murray was “at him” or tormenting him. She remembered William Heffernan making a complaint but she did not remember him adding after his account of his beating “and more”. The witness did not doubt Mr. Buckley’s evidence but could not remember him calling with the Plaintiff. Had the witness known that sexual abuse was occurring she would have gone to the Guards. She did not remember meeting Mr. Daly. With regard to the one incident which occurred this concerned a child visiting St. Joseph’s and being interfered with by Mr. Brady. She immediately took this up and rang Sergeant Tuohy. Mr. Brady was away at the time. She together with Sergeant Tuohy travelled to Dublin to interview Mr. Brady and he never came back to St. Joseph’s. Sergeant Tuohy and Sergeant Geraghty were rarely if ever with her at the same time. The witness did not remember the Plaintiff’s nose being broken. She was aware of the Plaintiff’s school attendance and school performance because she saw the reports. The witness was asked why she allowed the Plaintiff to leave the technical school during his second year. She said that there were many problems suffered by the children at school from remarks being passed about their parents. Every child was different and some preferred to have a job when they were fourteen. A teacher had been arranged to attend St. Joseph’s at night to give the children extra attention. The Plaintiff simply did not wish to go to school. The Plaintiff was mitching from school and going down town and effectively dropped out of the school system. She had never received any complaints about Mr. Murray’s dog.
Assessment of the Evidence as to the Facts
A conflict of evidence arises between the Plaintiff and the witnesses called on his behalf Mr. Buckley, Mr. Heffernan and Mr. Daly on the one part and witnesses called on behalf of the Defendant Sister Conception, Sergeant Tuohy and Sergeant Geraghty of the other part.
The Plaintiff’s evidence is that he informed Sister Conception on a number of occasions that he was being subjected to sexual abuse by Mr. Murray. Sister Conception acknowledges that the Plaintiff called to her on one occasion but that his complaint then was not specific. He told her that Mr. Murray was “at him”. She understood this to refer to physical abuse. I accept that the Plaintiff intended to make clear to Sister Conception that he was being sexually abused but the words used I am satisfied did not adequately communicate this to her.
Further the Plaintiff’s evidence is that he attended on Sister Conception with Sergeant Tuohy and Sergeant Geraghty on which occasion an explicit complaint of sexual abuse was made. Both Sergeant Tuohy and Sergeant Geraghty deny that any such meeting took place. I am not satisfied on the balance of probabilities that such a meeting took place. Both Sergeant Tuohy and Sergeant Geraghty were members of An Garda Siochana and I am satisfied they would have taken any such complaint very seriously indeed but if the Plaintiff’s recollection is correct surprisingly no action whatsoever was taken. Sergeant Tuohy took the initial statement from the Plaintiff in relation to his sexual abuse in January 1995 and there is no mention in that statement of the meeting. Sister Conception had no recollection of any such meeting. Having regard to the manner in which she dealt with the complaint against Mr. Brady in 1977 he being immediately confronted and resigning it would be surprising if she did not take similar action had she been made aware of Mr. Murray’s conduct.
The Plaintiff further gave evidence of a meeting at which he made a complaint of sexual abuse and attended by Dr. Birch, Sister Conception, Sergeant Tuohy and Sergeant Geraghty. Sister Conception, Sergeant Tuohy and Sergeant Geraghty denied that any such meeting took place. Dr. Birch is deceased. Dr. Birch had an interest in St. Joseph’s and was instrumental in having the children educated in outside schools. Having regard to this interest I am not satisfied that he would have ignored a complaint of sexual abuse brought to his attention. For the like reasons which I have given in relation to the alleged meeting with Sister Conception, Sergeant Tuohy and Sergeant Geraghty I am not satisfied on the balance of probability that any such meeting took place.
While I accept Mr. Heffernan’s evidence I am not satisfied that having made complaints of incidents of physical abuse by Mr. Murray and then adding that there was more he did sufficient to alert Sister Conception to incidents of sexual abuse.
With regard to the meeting with Sister Conception the Plaintiff and Mr. Buckley I accept Mr. Buckley’s evidence. However again I am not satisfied that the nature of the complaint made to Sister Conception was sufficiently explicit to enable her to understand that sexual rather than physical abuse was the subject. It must be very difficult for a witness after the passage of so many years to recall with any certainty the words used: however I have no difficulty in accepting the evidence of Sister Conception that had she been aware that the complaint against Mr. Murray was of sexual abuse she would have acted on the complaint and I am influenced in arriving at this conclusion by the manner in which she acted on the complaint against Mr. Brady.
Finally I accept the evidence of Mr. Daly that he attended with the Plaintiff on Sister Conception. Again I am not satisfied on the balance of probability that the complaint was made in sufficiently explicit terms to enable her to understand that the complaint was one of sexual abuse: I am satisfied that had she so understood she would have acted as she did in the case of Mr. Brady. In the case of both Mr. Buckley and Mr. Daly they were both young men and I have no doubt that the raising of such a topic as sexual abuse with Sister Conception at that time would have caused them serious embarrassment. It is common case that technical terms for bodily parts were not used nor was the phrase “sexual abuse”. These are factors I am satisfied which contributed to a failure on the part of Sister Conception to understand the true nature of the complaint being made.
Save as aforesaid I accept the Plaintiff’s evidence as truthful and accurate.
Medical Evidence
The medical report of Commandant O’Brien a doctor attached to the Naval Service was admitted in evidence. From the report it appears that the Plaintiff was detained in the GMH Cork from the 19th November 1982 to the 23rd November 1982 suffering from self inflicted lacerations to both wrists. He was very depressed in that he felt a superior officer bore a grudge against him. He had a history of being suicidal prior to admission. He was seen by Dr. Mary V. Hynes O’Sullivan, Consultant Psychiatrist on the 20th November 1982. Her opinion was that he suffered from a personality disorder with disturbed family background. She recommended that due to his unstable and unpredictable behaviour he was unfit for service in the Naval Service. He appeared before a Medical Board on the 22nd November 1982. The recommendation of the Board was that as the Plaintiff suffered from depression and was suicidal he should be discharged from the Permanent Defence Forces in consequence of not possessing the physical standards required for service.
Dr. Marie Hogan, Psychiatrist at St. Dympna’s Hospital gave evidence. Details of the Plaintiff’s attendances at St. Dympna’s are detailed earlier in this Judgment and it is unnecessary to repeat them. She characterised the Plaintiff as presenting in crisis sometimes distressed, sometimes intoxicated but quickly reverting to reasonable form with a prompt discharge. On occasions the Plaintiff was kept in hospital because he had no where else to go being homeless. In terms of keeping a job she considered his functional level extremely poor. Alcohol was a major feature in relation to most of his admissions. On occasions he had suicidal ideation. His relationship with his former girlfriend and now wife and his children is very important to him. The Plaintiff’s difficulties stem primarily from a moderately immature personality organisation. When faced with difficult or upsetting life situations his invariable response had tended to be inadequate, impulsive and histrionic in nature. As a result of his immature personality organisation he has a tendency to substance misuse and self destructive behaviour when in crisis. He showed no sign of psychiatric illness over the years of his attendance at St. Dympna’s Hospital. A major contributing factor to his condition has been the sexual abuse which he experienced as a child. The Plaintiff first disclosed the history of sexual abuse to her in the early summer of 1995. When she furnished her report of 27th March 1996 she had not been aware of the full extent of the sexual abuse but having become aware she is of opinion that it is a major contributory factor. People who have suffered child sexual abuse frequently experience great difficulty in disclosing it. This was particularly so at the time the Plaintiff first attended St. Dympna’s in 1992. Once the Plaintiff disclosed the history he had gone on to deal with it. As a result in later times the Plaintiff has been living a much more stable existence. Counselling which the Plaintiff availed of over an almost three year period provided by Aine Ennis had been enormously beneficial for the Plaintiff. In her opinion it is not likely that he will fully integrate into a working environment and society. He will continue to experience occasional episodes for the foreseeable future. He will require continuing counselling. He is no longer dependant on St. Dympna’s Hospital. The Plaintiff’s abuse of alcohol is symptomatic of his abuse as is his tendency to be somewhat histrionic, dependant and avoidant. While in her report of 2nd April 1959 she had stated that other contributory factors were parental alcoholism, poor parental relationships, disruptive home life and physical abuse were all contributory factors to the Plaintiff’s condition she may then have attached too much importance to parental alcoholism. In her report of 2nd June 1999 the witness stated that it was not possible to assess the exact extent of the psychological and emotional damage occasioned to the Plaintiff specifically as a result of his childhood experience of sexual abuse and the possibility exists that the difficulties which he displays originated in part at least in his experience of early emotional deprivation, poor parental relationships, paternal alcohol abuse and disruptive home life. There is however a high probability of a causal relationship between the symptoms and signs displayed by the Plaintiff and his experience of childhood sexual abuse.
In cross examination the witness agreed that from 1996 onwards the Plaintiff was beginning to come to terms with his problems. The Plaintiff had indicated to her that his father was a harsh individual and that he would have been slapped. Disadvantage in childhood in the period prior to the Plaintiff entering St. Joseph’s could have contributed directly to the Plaintiff’s psychological and emotional difficulties and had he not suffered sexual abuse he may well have developed a degree of personality disorder. While the Plaintiff’s time in St. Teresa’s was described by him as happy it was nonetheless disadvantaged. The loss of his mother may also have been a factor which predisposed him to depression and it may be the case that notwithstanding the disadvantages from which he suffered that were it not for the sexual abuse he would have coped with life.
Dr. Frank O’Donoghue, Psychiatrist gave evidence that he has considerable experience of dealing with the victims of childhood sexual abuse. He first saw the Plaintiff on the 22nd September 2004 and following that produced a report. He analysed the causes given for the attendances by the Plaintiff at St. Dympna’s Hospital which ranged over the following – depression, inadequate personality, pathological gambling, social inadequacy, immature personality, unstable personality or personality disorder (variously described as inadequate, dependant, immature, unstable) was the diagnosis on thirteen of the occasions on which he was admitted. On presentation the Plaintiff was co-operative and pleasant. There was no evidence of schizophrenia or organic brain damage. He was not depressed. He could cry at times. He had been suicidal in the past but almost all attempts at deliberate self harm occurred when he had been drinking and only one or two happened without alcohol. His sleep, appetite, concentration and enjoyment in things and interest in things and energy were all normal. At times he had guilt feelings – he did not complain sufficiently about Mr. Murray and the abuse continued and other boys suffered. He had no anxiety symptoms. Using the Diagnostic and Statistical Manual Version 4 the Plaintiff was examined for the presence of symptoms of post traumatic stress disorder. The Plaintiff did not meet the criteria for post traumatic stress disorder. Intelligence appeared to be in the normal range. The Plaintiff showed evidence of personality disorder specifically dependant personality disorder the essential feature of which is a pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour and fears of separation arising from a perception of being unable to function adequately without the help of others. The multiple admissions to St. Dympna’s Hospital are indicative of this personality type. The Plaintiff described Sister Conception as a mother figure to him. The Plaintiff suffered from alcohol dependence syndrome as well as dependant personality disorder. He had little insight into his alcohol problems and his gambling problems. The Plaintiff is functioning at 70% of his potential reduced by marital problems and alcohol dependency. Because of the benefits derived by the Plaintiff from counselling he is no longer dependant on St. Dympna’s. People with the Plaintiff’s personality tend to have less difficulty as they got older as they develop better coping skills with increasing maturity and both these factors are at work in the Plaintiff and accordingly improvement should continue. This would be helped if he could be reconciled with his wife. People with the Plaintiff’s condition usually have poor employment records as occupational functioning may be impaired. However the Plaintiff’s employment position in the future may be chequered but not to the same extent as in the past. The damage to the Plaintiff’s personality from the sexual abuse caused his ongoing career and job difficulties.
In relation to alcohol dependence factors contributing to the same are genetic causes, early family life experiences, early childhood experiences, current life stresses and also childhood sexual abuse. The witness was aware of seven admissions of the Plaintiff to Cuan Mhuire in relation to his problems with alcohol. The Plaintiff lacks understanding as to how alcohol is a negative influence in his life and this may present a problem for the Plaintiff in being constructive about his alcohol problem. The Plaintiff’s housing problems resulted from lack of finance which in turn was caused by his problem with alcohol. The witness had seen patients with a history of sexual abuse over 23 years and in that time can think of only 3 cases in the same category of severity of abuse as the Plaintiff’s. An award in these proceedings would be beneficial in that it would eliminate his financial problems. However an award might result in further difficulties with alcohol. Some control over the award limiting the availability of cash to the Plaintiff would be beneficial. It is encouraging that the Plaintiff has been in employment for over a year as people with personality disorder do improve. Counselling has reduced the risk of problems ahead but without eliminating the same. Improvement in the Plaintiff’s overall condition in recent years suggests that difficulties in the future will be less than in the past.
In cross examination the witness agreed that if the Plaintiff’s drinking and gambling were under control one could be optimistic about his future. Complete abstention from alcohol is the key to dealing with an alcohol problem. In one study of in-patient alcoholics some 24% of them suffered childhood abuse. The treatment for post traumatic stress disorder is psychological and only occasionally is medication required. Depression can be a symptom of post traumatic stress disorder: anxiety is a more common symptom and this is dealt with by counselling. In relation to the Plaintiff’s visits to St. Dympna’s there was little that could be done for him other than supportive psychotherapy – to provide a shoulder to lean on. There had been an improvement in the Plaintiff’s personality disorder in recent years. The fact that the Plaintiff was thinking of taking a supervisors course in his employment was a positive sign. Both alcohol dependency and marital problems from which the Plaintiff suffers arise from his personality structure.
Dr. Duncan Veasey, Consultant Psychiatrist gave evidence. He interviewed the Plaintiff on the 17th May 2004. In his opinion the Plaintiff suffered severe sexual abuse, physical abuse and emotional abuse and is now suffering from symptoms of anxiety, depression and personality characteristics with behavioural manifestations which constitute a diagnosis of complex post traumatic stress disorder. While this condition appeared too late for inclusion in the Diagnostic and Statistical Manual Version 4 it is a recognised psychiatric diagnosis by those working in the field of survivors of childhood abuse. The Plaintiff’s history of depression, episodes of self harm, substance misuse, gambling, difficulties in relationships, detachment, proneness to dependence and institutionalisation are core features of this diagnosis. The Plaintiff’s alcohol dependence in the opinion of the witness is part and parcel of his complex post traumatic stress disorder. For the past fifteen years the witness has specialised in clinical work with survivors of sexual abuse and more recently with litigation involving children’s homes.
While complex post traumatic stress disorder is only recently recognised it is now a recognised condition although there is a considerable cross over and overlap between a lot of other diagnoses. Alcohol, gambling and self harm are symptoms of the condition. The condition has been caused by trauma in childhood. The administration of alcohol to the Plaintiff by Mr. Murray has a very significant causative effect of the Plaintiff’s drink problem. The abuse involved in the Plaintiff’s case is the most serious which he has ever encountered. Another feature is attention seeking which has been referred to in school reports of the Plaintiff. The Plaintiff at interview had mentioned avoidance of men’s toilets and this is another typical feature. Late disclosure of sexual abuse is not unusual in the Plaintiff’s circumstances. The Plaintiff as a result of therapy (I assume this is counselling) has an insight into how the sexual abuse has affected him and is well on the road to understanding this. Nonetheless the Plaintiff will be compromised in the workplace if he requires regular admissions to psychiatric hospitals. He will be affected in his relationship with his partner and with work mates and his difficulties in these areas in the past are related to his condition. The Plaintiff has however improved with the passage of years and again this is typical of this condition. The completion of this litigation will assist him in getting on with his life and remove one stress factor. The witness was hopeful that the Plaintiff will be able to continue in full time employment but he may need support when subjected to stress. In cross examination the witness said that there is a very considerable cross over between personality disorder and complex post traumatic stress disorder and therefore he has no significant disagreement with the other medical experts who diagnosed the Plaintiff as suffering from personality disorder. While other factors undoubtedly contributed to the Plaintiff’s condition the highest contribution is from abuse in care. For the future the Plaintiff should remain in therapy but would not require medication or treatment unless he developed further problems with alcohol, depression or anxiety. The Plaintiff’s stability in his present employment is a positive sign.
Aine Ennis a Psychotherapist gave evidence. She began counselling the Plaintiff in February 1995 at the time of the Garda investigation into Mr. Murray’s conduct. At that time the Plaintiff’s life was chaotic in terms of his drinking and relationships. Counselling continued until late 1997 with further sessions in 1998 and ended when the witness moved to Wexford although she maintained some contact thereafter The Plaintiff has a good view of himself but is sometimes unrealistic and has little insight into his drinking problems. While the Plaintiff reads the Irish Times she would not be certain that he fully understands the issues discussed. The Plaintiff engaged very well with counselling and was committed. He improved over time but still required a lot of reassurance about decisions. He had difficulty expressing emotions. He became distressed when discussing the incident of abuse concerning a dog. He had a tendency to bottle up his emotions and release them by drinking and then become situationally depressed but not clinically this being a common feature with abuse survivors. While he is friendly and warm the Plaintiff has a dependent personality. He has a co-dependant relationship with his spouse. The witness ceased formally seeing the Plaintiff at the end of 1997 but had contact in 1998. The Plaintiff keeps in touch with her. The Plaintiff has not been in Cuan Mhuire for some time with only one admission in the last few years some eighteen months ago and was counselled for his alcohol problem there but the Counsellor would in addition have listened to him in relation to sexual abuse although not dealing with the same. The Plaintiff has social deficits that he will not overcome although they will improve over time. The main threat to his continuing in employment is his problem with alcohol which could lead to absenteeism. The witness saw the Plaintiff again at the hearing and he appeared to have taken some control of his life. The Plaintiff will need counselling well into the future to deal with some of the consequences of his abuse particularly in relation to alcohol. Initially he might need counselling once per week for a short period and then once per fortnight. He will require support after the case as he will have to adjust to the end of the litigation. Occasional crises will develop during which he will need support. However alcohol will be the focus of counselling into the future. The circumstances of the Plaintiff’s life prior to the sexual abuse is also a factor in his alcohol abuse: however the sexual abuse in this case is the most serious which she had ever come across. While there has been an improvement in the Plaintiff’s self esteem the condition at this time is static. While the Plaintiff had stated that he has an interest in chess, history and world affairs and wishes to do a supervisors course in her opinion he has an unrealistic view of his capacity. A person in the Plaintiff’s position would tend to become institutionalised but without the added ingredient of sexual abuse he was much more likely to be in a position to become independent. Significant features in the Plaintiff’s history were that he was not believed when he made complaints and that he was threatened with death if he revealed the abuse. There was nothing unusual or abnormal about leaving school at 14 years of age. The fact that the Defendants in this case had denied liability until a late stage in the proceedings also had an impact on the Plaintiff reinforcing the effect of his earlier complaints not being believed.
William Kinsella, Educational Psychologist, gave evidence. He assessed the Plaintiff on the 16th September 2004 administering a series of tests of the Plaintiff’s intelligence and of his reading, spelling, arithmetic and reading comprehension. On the Weschler Adult Intelligence Scale Third Edition a test of cognitive ability the Plaintiff had a full IQ score of 85 that is within the low average range. Further tests were then administered with the object of identifying any discrepancy between his achieved level of attainment and literacy and numeracy and the predicted levels on the basis of his overall ability: where discrepancy occurred this could be due to specific learning difficulties or external factors such as lack of educational opportunity, the nature of ones educational experience or a failure to benefit from available educational opportunity. On these tests he had good verbal skills within the average range and particularly good working memory skills. His greatest weakness related to mental arithmetic ability. The tests indicated under achievement in reading/word recognition, spelling, arithmetic and reading comprehension where he scored within the 8th percentile, the 2nd percentile, the 1st percentile in relation to the first three with a comprehension age of 11.6 as opposed to full adult competency 17.0 on the fourth. The Plaintiff’s profile is not one that would normally be associated with a specific learning difficulty. The difficulties are therefore related to his educational experience, a lack of educational opportunity or a failure to benefit from available educational opportunity. It is likely to be significant that the Plaintiff associates some of the sexual abuse which he suffered around homework with a consequential disengagement from homework exercises. The deficiencies in literacy and numeracy impact on the Plaintiff’s ability to take up employment where those skills are relevant and he was accordingly confined to manual type work. In terms of ability the Plaintiff would have been capable of earning the average industrial male wage. The Plaintiff’s lifestyle has militated against him availing of adult education or further study.
In cross examination the witness agreed that it was not uncommon for persons to leave school at fourteen years of age and yet be quite literate and numerate. In employment the Plaintiff could cope with oral instruction better than written instruction and would have difficulty with numerals. Had the Plaintiff’s employment with Braun continued he would not have been in a position to progress to a supervisory position because of his deficits. The test results as to the deficits are confirmed by the Plaintiff’s evidence that he has educated himself through listening to documentaries and viewing videos. The witness had seen two reports in respect of the years during which the Plaintiff attended the vocational school: he was given an opportunity to see reports on the Plaintiff’s last two years at national school during the lunch recess. The reports cover the years 1971/2, 1972/3, 1973/4 and 1974/5. He agreed that in respect of the years in primary school there was no drop in performance. He was unable to say that sexual abuse was the cause of the Plaintiff’s disengagement with education. I note however that where the Plaintiff’s attendance is given in reports it is in two cases “very good” and in the third it is 184/194. If he attended school having consumed alcohol this could have affected his school performance. The Plaintiff’s attendance at school in 1972 was unsatisfactory – 10 days absent out of 194. A report for 1972 indicated that the Plaintiff was improving at his study but was very poor at school and lacked concentration there.
Expert Evidence
Susan Tolan, Occupational Therapist and Vocational Evaluator gave evidence. In her report of the 27 November she noted that the Plaintiff had seven brothers and two sisters one stepbrother and one stepsister. His stepbrother he has never met: his stepsister is a housewife with two children living in England. His eldest brother is unemployed. His next brother was a barman but as a result of an injury is no longer fit for work. His next brother is on disability benefit but is on a back to work scheme. His next brother was raised in England from the age of five and works as a male nurse. His next brother works as a cleaner in a bar. His next brother is an area manager with a cleaning company. His next brother works for a county council as an office messenger. Of his sisters one works as a canteen assistant and the other as a factory operative with Braun. His brother Francis who would appear to be achieving was also sent to an industrial school albeit a different one. Ms Tolan’s opinion is that the Plaintiff faces problems in relation to employment. His standard of education precludes him from clerical, office and administrative employment. His work history is poor. He has no special skills. His stature is such that he is unlikely to be regarded as suitable for heavy manual work. He has been banned from driving. He has a history of admissions to a psychiatric hospital. He presented to Ms Tolan as having low self esteem and poor self confidence: this conflicts somewhat with his presentation in court. He would benefit from training and there are training programmes available. Were it not for sexual abuse the Plaintiff should have been able to earn the average industrial male wage and sustain employment: however it is difficult to predict what he would have achieved had he not suffered sexual abuse. It should have been possible for him to work as a general factory operative, machine operator, forklift truck driver or van driver or sales assistant.
Ms Tolan gave the following as current rates of pay –
Male industrial wage €620.98 per week
Semi skilled production worker €433.53 per week
Sales assistant €381.54 per week
John Logan, Actuary gave evidence. While the Defendant objected to the admission of such evidence I allowed the introduction of the same reserving for further consideration as to whether it was appropriate to make any allowance in respect of future earnings on the basis of actuarial calculations. His evidence was that the appropriate multiplier for future loss of earnings up to age 65 was €732 per €1 per week. On the basis of the average industrial wage his current net of income tax earnings would be €507 or €550 per week depending upon whether he was separately assessed for income tax or not. Had he been consistently employed up to date on the same two bases his loss of earnings on the basis of the average industrial wage amounts to €314,000 or €329,000. Should interest be awarded on these sums at Courts Act rate the same would amount to €216,000 or €220,000. The total of amounts received by the Plaintiff by way of actual earnings and social welfare payments amounted to €113,000.
Assessment of the Evidence of Medical and Professional Witnesses
On the evidence I am not satisfied as a matter of probability that the Plaintiff will require further medical treatment. He will however require counselling and an appropriate sum to provide for the same is €10,000.
I have already described the Plaintiff’s chaotic lifestyle to date and his disrupted working life. However I am satisfied that in recent years there have been many hopeful signs. The cycle of admissions to St. Dympna’s Hospital has been broken. The Plaintiff performed his employment with Braun satisfactorily and indeed was a shop steward there. He has retained his present employment. Alcohol is much less a problem than in the past. The criminal proceedings taken against the perpetrator have benefited the Plaintiff in coming to terms with his sexual abuse and the conclusion of the present proceedings after a short period of re-adjustment is likely to benefit him further. The evidence of the medical witnesses I accept: I do this notwithstanding the divergence in diagnosis between Dr. Duncan Veasey and the other medical witnesses for whatever the diagnosis the effect upon the Plaintiff appears to me to have been the same. I accept that while not the sole cause or explanation of the Plaintiff’s condition from the date of his sexual abuse up to date that sexual abuse has been a major contributory factor to the same. I take into account however that the Plaintiff’s life from the time he left care up to date would to some extent have been adversely affected by other factors in his life and in particular early emotional deprivation in the context of poor parental relationships, the death of his mother, the indications that his father abused alcohol, the lack of any continuing relationship with his father, the circumstance of having been in care and consequent denial of an appropriate home life. I take into account the consensus of an improvement in recent years particularly since his disclosure of the sexual abuse and the prosecution of the offender. I accept the evidence of Dr. O’Donoghue that persons with the Plaintiff’s personality tend to have less difficulty as they get older as they develop better coping skills with increasing maturity. I also accept his evidence that the improvement which has been noticed will continue. As to the reason for the Plaintiff disengaging from education in his last year the most likely cause of this is that given in evidence by Sister Conception rather than the abuse.
As to what would have been the Plaintiff’s employment history but for the sexual abuse I have concluded that he would have remained in consistent employment subject to the ordinary Reddy v Bates factors. I have regard to the achievements of his siblings: I determine as a matter of probability that his employment would have been at the semi skilled level. In compensating the Plaintiff I propose to adopt a pragmatic approach. I propose awarding the Plaintiff a sum by way of general damage in respect of his loss of earnings to date on the basis of my finding as to the likely course which his employment would have taken were it not for his having been sexually abused. I propose availing of the actuarial evidence as a basis for arriving at an appropriate figure. The Plaintiff’s history of attendances at a psychiatric hospital, his recourse to alcohol which appears to be precipitated by any stress in his life and the probability having regard to his condition as diagnosed that such stresses will occur from time to time that he might experience more difficulty than would otherwise be the case in obtaining employment in the event of him losing a position. In all the circumstances I am satisfied that the basis for an award for future loss of earnings on an actuarial basis has not been made out but that in the light of the evidence I should make some allowance for difficulty in obtaining employment in the future beyond that which might otherwise have affected him.
Damages
(i) General Damages
Damages are claimed under the headings of negligence and breach of duty, assault and battery, false imprisonment and breach of and failure to vindicate his constitutional rights. The award must comprehend each of the foregoing headings. However in this case a composite figure is appropriate in respect of assault both sexual and physical and negligence and breach of duty. The Plaintiff’s evidence in relation to assault was that on one occasion he was struck with a hurley on the face and his nose broken and that following incidents of abuse he was regularly beaten as he viewed it to dissuade him from making complaints. The assault with the hurley followed his complaint to the school doctor. The incident in the school vegetable garden must have been particularly frightening for him. The incidents of sexual abuse themselves were attended with assaults of a brutal and in the case of the Alsatian dog a depraved nature. Insofar as breach of the Constitution is concerned a complaint under Article 40.3.1 of the Constitution is made I am satisfied that the award in respect of sexual and physical abuse should comprehend this and likewise the complaint under the Constitution Article 40.3.2, 40.4 and Article 42.5. A further complaint is made that the Defendants failed to require or ensure that the Plaintiff received a certain minimum education, moral, intellectual and social, in breach of Article 42.3.1. On the evidence I am not satisfied that this claim has been made out. The standard of education which the Plaintiff received was not unusual at the time. I am not satisfied as a matter of probability that the Plaintiff’s failure to avail of the same to the extent to which his ability would have enabled him was due to the sexual abuse: it could equally be due to the other factors identified by Mr. Kinsella. There are four school reports available two in respect of periods before and two in respect of periods after the sexual abuse commenced: I am unable to find any significant difference or deterioration in the reports between these two periods. In terms of moral education the Plaintiff knew that what was happening to him was wrong. Finally the Plaintiff pleads that the Defendants failed to supply by appropriate means the place of the Plaintiff’s parents contrary to Article 42.5 of the Constitution. That place was not supplied insofar as the sexual and physical abuse recorded in this Judgment took place but not in other respects: an award under this heading is comprehended within the award of general damages in respect of such sexual and physical abuse.
The Plaintiff claims in his Statement of Claim that he was detained beyond his 16th year. This appears to be correct in that accommodation was provided for the Plaintiff within the school (although not within Summerhill) after he attained his 16th birthday and while he was working. I am satisfied that this was a provision charitably made for the Plaintiff of which he was free to avail of or not. This claim has not been made out.
Accordingly I award general damages as follows:-
(a) To date €165,000
(b) Into the future €35,000
(ii) Special Damages
(a) Loss of Earnings to Date
I am satisfied that the Plaintiff has suffered significant loss of earnings to date and that a major contributory factor to this is the sexual abuse which he sustained. I must however take into account the difficulties from which as a matter of probability the Plaintiff suffered as a result of deprivation in his emotional life. I proceed generally upon the basis that he would have been employed at a semi skilled level rather than at the average industrial wage. I take into account the decision in Reddy v Bates and have regard to the type of employment in which the Plaintiff was likely to become involved having regard to his education. I take into account that his continuation in employment would to some extent at least have been interfered with by the consequences of emotional deprivation. I apply these considerations to the figure given in evidence by the Plaintiff’s actuary whose evidence is of assistance in arriving at an appropriate award of general damages under this heading. I arrive at an award as follows. If the entire loss of earnings could be attributable to sexual abuse and the Plaintiff would have obtained employment as a semi skilled person the loss at current rates would be €450 per week net of income tax. An appropriate capitalisation of this on the basis of the actuary’s evidence is €287,000. From this must be deducted however sums received by way of social welfare benefit and actual earnings which total €113,000: the net loss accordingly is €174,000. However the Plaintiff also worked marking the board in a bookmakers office for some time and no deduction was made in the evidence given to me in respect of this: I propose taking this into account in the deduction which I make under Reddy v Bates. For the purposes of a Reddy v Bates deduction I take into account the nature of the employment in which the Plaintiff was likely to engage having regard to his educational attainments but also the effect upon him of the emotional deprivation from which he would in any event most likely have suffered and I propose deducting a sum of €20,000. Accordingly the loss of earnings to date is assessed at €154.000. In addition the Plaintiff is entitled to a sum for interest. On the basis of the Actuary’s calculation the interest on this sum at Courts Act rates would amount to approximately €96,000. This gives a total of €250,000 for earnings and interest. However the evidence before me is that the sexual abuse was a major contributing factor to but not the sole cause of the Plaintiff’s condition which in turn is the cause of his employment history and in these circumstances I propose awarding to the Plaintiff 60% of that sum which is €150,000 under this heading.
(b) Future Loss of Earnings
The Plaintiff has not satisfied me as a matter of probability that he will continue to suffer loss of earnings into the future. He is currently earning at a level appropriate to a semi skilled worker. As a matter of probability he will continue to do so. I am impressed by the manner in which he maintained his employment with Braun until discharged on the grounds of redundancy with a great many other workers. I am also impressed by the manner in which he has held down his present employment for almost one year and by his ambitions to progress within that employment. While he may not fulfil that ambition it is indicative of his state of mind. While ideally he should avoid alcohol on the basis of the evidence before me it has not interfered significantly with his present employment and not to the extent that such employment is threatened. However should he choose to leave his present employment or be made redundant or dismissed he will face some difficulties more than would otherwise have been the case in obtaining alternative employment having regard to his history. In these circumstances I propose making an award of €10,000 in respect of future loss of earnings to compensate him for the extended period during which he may be unemployed should he lose his present employment.
(c) Other Special Damage
Cost of Future Counselling €10,000
Exemplary Damages
The Plaintiff claims exemplary damages and relies inter alia upon the decisions of the Supreme Court in McIntyre v Lewis & Others 1991 1 IR 121 and Conway and Ors v Irish National Teachers’ Organisation 1991 2 I.R. 305. I accept the Defendants’ submission that exemplary damages can be awarded against a Defendant whose liability is vicarious. Exemplary damages are awarded to mark the Court’s disapproval of the conduct complained of. However it is well settled that exemplary damages should not be awarded where the amount payable in the form of compensatory damages constitutes a sufficient public disapproval of and punishment for the form of wrongdoing. I am satisfied in the circumstances of this case that the substantial award of compensatory damages renders it unnecessary to consider whether exemplary damages could or should be awarded in the circumstances giving rise to this claim.
Aggravated Damages
Aggravated damages are compensatory in nature and can be awarded in cases in which the injury to the Plaintiff has been aggravated by malice or in the manner of doing the injury, that is, the insolence or arrogance by which it is accompanied: Rookes v Barnard 1964 1 All E.R. 347. The award which I have made of general damages is intended by me to take into account all the circumstances which surrounded the sexual and physical abuse. I have taken into account that the physical abuse inflicted on the Plaintiff as outlined by him in evidence was closely associated with the sexual abuse and as a matter of probability was motivated by an intention on the part of Mr. Murray to dissuade the Plaintiff from making complaint.
The Plaintiff complains that in these proceedings the Defendants maintained a denial of liability until a very late stage. I do not see this as an abuse of the process of the Court in any way and a Defendant is always entitled to require the Plaintiff to prove his case. To some extent at least the fact that liability was admitted in advance of the hearing was a concession which the Defendants were not obliged to make. The factors which might lead to an award of aggravated damages in this context were set out by Nourse J. in Sutcliffe v Presdram Limited 1991 All E.R. 269 at 288 –
“Conduct calculated to deter the Plaintiff from proceeding; persistence, by way of a prolonged or hostile cross examination of the Plaintiff or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct whether of the preliminaries of or of the trial itself in a manner calculated to attract further wide publicity, and persecution of the Plaintiff by other means.”
In this jurisdiction Cooper v O’Connell Supreme Court 5th June 1997 it was held that the fact that the Defendant had put liability in issue was insufficient to justify an award of aggravated damages. In the circumstances I do not propose awarding aggravated damages.
Conclusion
I award the Plaintiff the following sums –
General damages for pain and suffering to date €165,000
General damages for pain and suffering into the future €35,000
Loss of earnings to date €150,000
Loss of earnings into the future €10,000
Cost of future counselling €10,000
_______
Total: €370,000
Approved:
Finnegan P.
Shortt v An Garda Síochána (HC)
[2005] I.E.H.C. 311Judgment of Finnegan P. delivered on the 12th day of October 2005
On the 28th February 1995 the Applicant was convicted on 13 counts after a trial at the Dublin Circuit Criminal Court. The convictions were based on the proposition that the Applicant was aware of and permitted drug dealing on his premises the Point Inn, Quigleys Point, Co. Donegal in the period between June and August 1992. On the 1st March 1995 he was sentenced to three years imprisonment on each count to run concurrently and to a fine of IR£10,000. He appealed his conviction and sentence to the Court of Criminal Appeal. The appeal against conviction was dismissed on the 23rd June 1996. The appeal against sentence was allowed to the extent that the fine of IR£10,000 was remitted. The Defendant served that sentence less statutory remission the period for which he was imprisoned accordingly was 27 months. The Criminal Procedure Act 1993 section 2 provides for an application by a convicted person to the Court of Criminal Appeal on the grounds that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to his conviction. The Plaintiff availed of this provision. On the 20th November 2000 the Director of Public Prosecutions told the Court of Criminal Appeal that there was no opposition to this application and it was accordingly allowed, that is, his conviction was quashed on the statutory ground that new or newly discovered facts made it proper that this should be done. The Plaintiff then applied to the Court of Criminal Appeal pursuant to section 9(1) of the Criminal Procedure Act 1993 for a certificate that a newly discovered fact showed that there had been a miscarriage of justice and on the 31st July 2002 that Court so certified. That certificate having been obtained the Plaintiff then had the option of applying to the Minister for compensation or of instituting an action for damages arising out of the conviction: section 2(2) of the Act provides as follows –
“(2) A person to whom sub-section (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.”
The Plaintiff opted to institute this action for damages.
I suggested to the parties that having regard to the phrase “damages arising out of the conviction” the Court in assessing damages could have regard only to matters arising following the conviction and not to matters which arose in the course of the investigation or the trial. The parties submitted that it is appropriate to adopt a purposive interpretation of section 9(2) and in effect to read the section as providing for damages “arising out of the miscarriage of justice”. I was referred to the decision of the Court of Appeal in The Independent Assessor v O’Brien & Others 29th July 2004 which deals with the corresponding provisions in the United Kingdom. While there is considerable difference in the statutory provisions in the United Kingdom the objectives of the provisions appear to me to be the same. As the parties are in agreement that I should assess damages pursuant to section 9(2) of the Act in respect of the period commencing on the date on which the Plaintiff was charged I propose to do this. I propose, as agreed between the parties, to adopt the approach in The Independent Assessor v O’Brien and Others and make a single award of damages rather than to break the same down into a number of discrete heads of award in respect of various headings of claim which could be maintained at common law. Thus the Plaintiff claims damages pursuant to the provisions of section 9 of the Criminal Procedure Act 1993 and I propose to make an award of damages on that basis insofar as the events in respect of which claim is made occurred after the Plaintiff was charged. The Plaintiff claims further or in the alternative damages for breach of constitutional rights, for conspiracy, for negligence and breach of duty, for malicious prosecution, for false imprisonment, for loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory power. I do not propose making awards under any of those headings in respect of anything which occurred after the Plaintiff was charged notwithstanding that the evidence would entitle a claim on all or any of such basis to succeed in the alternative to the claim under section 9. I will however have regard by analogy to the common law in relation to such claims insofar as the Plaintiff claims damages and aggravated and/or exemplary damages in respect of his claim under section 9. I adopt this approach upon the basis that the parties are in agreement that I should do so. As to the date upon which the Plaintiff was charged this was not given in evidence: however summonses were served shortly after the Plaintiff was notified of the intention of the Gardai to object to the renewal of the licences for the Point Inn. In these circumstances I propose adopting as the date of charge the 1st October 2002.
The Defendant accepts that the matter should proceed as an assessment and in effect the issues will be causation and remoteness of damage.
The Plaintiff’s Claim for General Damages
The Plaintiff, his wife Sally Shortt and John P. Ward gave evidence.
The Plaintiff’s Evidence in Chief
He was born on the 25th January 1935 and is now 70 years of age. The sequence of events giving rise to this claim commenced on the 18th April 1992 when the Plaintiff was 57 years of age. They culminated in his conviction in the Dublin Circuit Criminal Court on the 28th February 1995 when he was 60 years of age. As to the Plaintiff’s background he was born in County Donegal the son of a Customs Officer. He was educated initially in Donegal and later in Dundalk to which town his father had been transferred. He obtained his Leaving Certificate and took a job for a year and then joined Kennedy Crowley & Company as an Articled Clerk to Mr. Niall Crowley and qualified as a Chartered Accountant in 1966 at the age of 31. After qualification he continued with Kennedy Crowley & Company subsequently Stokes Kennedy Crowley. He married in 1967. There are five surviving children of the marriage, Guilesco born in 1972, Natasha born in 1974, Sabrina born in 1977, Christian born in 1980 and Ezeriah born in 1982.
The Point Inn was owned by his Great Grandfather and then his Grandfather. His Father inherited it in the early 1950s. At some point it was taken over by the Plaintiff’s brother Louis who had experience in hotel management. Following his wedding the Plaintiff went to Canada where he worked as a Chartered Accountant with the firm of Deloitte Pender Haskins and Sells in Winnipeg and later Pete Marwick Mitchell in Vancouver. He then took a commercial appointment with a property developer where he remained for a year. In December 1970 he together with his wife and young son set off to travel around South America in a camper van. Tragically his young son was killed in an accident in Mexico. The Plaintiff and his wife returned to Ireland in 1971. He immediately got involved with his brother Louis in the running of the Point Inn but also engaged in other commercial enterprises. At that time the Point Inn had a substantial business in entertainment at weekends operating a cabaret lounge and having traditional Irish music in the bar. At that time his involvement in the Point Inn was at weekends. The business at the Point Inn was affected by the Northern Ireland troubles. On the 16th December 1973 the premises was seriously damaged by a bomb. The compensation from that incident was used to build a state of the art nightclub/cabaret lounge which remained in use up to the destruction of the premises by fire in 1995. At the end of the 1970s he sold a poultry business in which he was engaged after which the Plaintiff had full time involvement in assisting his brother Louis running the Point Inn. In 1988/89 he commenced an aquaculture business in Lough Foyle which business failed in 1991. The Plaintiff’s brother Louis died in March 1991 by which date a Mr. Colm Quinn had become involved in the business. Louis Shortt’s widow and Colm Quinn continued to run the business but not very successfully. By the end of 1991 the Plaintiff had acquired the other interests in the Point Inn and he and his wife become full owners of the same.
When the Plaintiff took control of the Point Inn in 1991 it was run down and was not trading well. While the bar operated every night the discotheque/cabaret operated one night per week only. The Plaintiff closed the premises and with the aid of a mortgage of IR £50,000 on his family home they were re-equipped and renovated. The premises re-opened after some six months on the 18th April 1992. It had a themed discotheque – dungeon style with a real style guillotine in the middle. It had a capacity for 850 people and initially operated on Sunday night only while the bar opened every night. In the malicious injury claim arising out of the fire his evidence was that the discotheque attracted 450 patrons 90% of whom were from Northern Ireland. Food was provided in the nightclub and on Sundays in the licensed premises. Across the road from the Point Inn was an eight acre site running down to the sea. The Plaintiff decided that it would be ideal for a caravan park and in 1989 he sought and obtained planning permission for such a development.
The nightclub under the style “The Dungeon” opened on the 18th April 1992. The opening was advertised widely. On the opening night at approximately 1 a.m. the nightclub was visited by Sergeant John McPhillips of the local Garda Station in Muff village. He checked that the bars were closed. On leaving the premises in the hearing of patrons he told the Plaintiff “Get your house in order”. The Plaintiff asked Sergeant McPhillips to speak to him outside and when outside asked him for an explanation but did not receive one. Arising out of this the Plaintiff telephoned and made an appointment to meet with Superintendent Brian Kenny, the Garda Officer in charge of the district. Superintendent Kenny agreed to look into the events of the opening night. No mention of illegal drugs was made in the course of that meeting. The nightclub operated again on the following Sunday and again Sergeant McPhillips arrived this time with two or three other Gardai and on this occasion he repeated his comments. The next Sunday there was a further Garda inspection. While the opening night had been very successful numbers attending the nightclub declined over the following four to five weeks. The Plaintiff does not attribute this solely to the visits of the Gardai but rather to the form of entertainment being provided. As a result of discussions with other nightclub owners the Plaintiff decided on changes. The name was changed to “Rave in the Cave”. While the music was much the same it was now continuous and produced on synthesisers. The revamped nightclub commenced on the 16th May 1992 and as on each previous occasion on which the nightclub operated there was a Garda visit again by Sergeant McPhillips with seven other Gardai. On the 17th May 1992 the Plaintiff wrote to Superintendent Kenny with a view to having the attendance by Gardai reduced. He also wrote to Sergeant McPhillips complaining of victimisation and discrimination on the same day. He categorised the correspondence as an attempt to pour oil on troubled water. Again on the 7th June at 10.30 p.m. approximately Sergeant McPhillips with seven or eight uniformed Gardai set up a check point about one mile from the Point Inn on the road leading from Northern Ireland. The occupants of cars were asked if they were going to the Point Inn and if they said they were their cars were searched. After midnight Sergeant McPhillips again with seven or eight Gardai entered the premises and inspected the same. The inspection lasted some fifteen minutes. After the premises closed the Gardai returned to carry out a further inspection looking for illegal drugs. No trace of illegal drugs was found. Again the Plaintiff complained to Superintendent Kenny and sent the letter by fax and immediately thereafter spoke to Superintendent Kenny and arranged to meet with him on the following day. At that meeting it was agreed that under cover Gardai should attend at the premises to address the possibility of drugs being dealt in there. Some two weeks later two under cover Gardai, Detective Garda Noel McMahon and a female Garda, Garda Finnegan attended at the premises. Thereafter on each night that the nightclub operated until the 3rd/4th August 1992 under cover Gardai attended at the premises. During this period while Sergeant McPhillips continued to attend at the premises from time to time he did not attend on every night the nightclub was operating. On the 21st June 1992 Inspector Lennon attended at the premises and spoke to the Plaintiff about the possibility of illegal drugs being on the premises.
On the night of 3rd/4th August 1992, the August bank holiday weekend, at about 12.30 a.m. the Plaintiff observed a group of men wearing helmets with visors running out of the car park towards the main entrance of the nightclub. They were Gardai. The first Garda knocked the Plaintiff out of his way by striking him in the chest with his helmet. There were about 60 Gardai involved and they ran into the premises. Most were wearing helmets with their visors down and carrying flash lamps. Other Gardai broke in two emergency exits with sledge hammers. Patrons were manhandled some being pushed against the wall and spreadeagled. Some of the male patrons had their pants pulled down. The Garda presence lasted about an hour. During the incident the Plaintiff spoke to Inspector Lennon who showed him a search warrant. Some ten or twelve patrons were arrested. The following day the Plaintiff sent a further letter of complaint to Superintendent Kenny. In that letter he complained that other nightclubs in the area were not being subjected to the same level of supervision. He also complained by letter to the Commissioner in identical terms. The incident was reported in the Derry Journal of the 4th August 1992.
Following this under cover Gardai continued to attend at the premises. There was at least one other roadblock similar to that which I have described.
The annual licensing District Court for 1992 was to be held in September and during September the Plaintiff received notice of intention by the Gardai to object to his liquor licence, dancing licence and restaurant certificate at the annual licensing District Court. Shortly thereafter the Plaintiff was served with 32 summonses which alleged that the Plaintiff knowingly allowed the dealing of drugs on his premises on various dates. The objection was not proceeded with immediately but was adjourned to the 18th September 1992 on which date the District Court refused to renew the licences. The Plaintiff appealed to the Circuit Court and the Plaintiff continued to trade pending the appeal. While Garda inspections continued it was with less frequency. The Plaintiff was personally aware of one further roadblock at Muff.
Thereafter events complained of post dated the date I have fixed as the date of charge the 1st October 1992. On the night of the 12th/13th February 1993 there was a further significant Garda raid on the premises involving between 80 and 100 Gardai very similar to the previous raid. Again doors were broken in. Inspector Lennon served a search warrant on the Plaintiff. The raid lasted some 1½ hours and between twelve and fifteen patrons were arrested. Some tablets were found. Again the Plaintiff wrote letters of complaint including letters to the Minister for Justice and the Garda Complaints Board.
At this time a threat to the Plaintiff’s life was made by the IRA and he closed the premises on the 8th September 1993 and next opened at the Christmas period for four or five days. The threat was repeated early in January 1994 and the premises were again closed. The Plaintiff’s belief is that that threats arose as a result of adverse publicity following the Garda raids. The premises were re-opened in April 1994 but now operated on a Friday rather than a Sunday night and for just one night per week. Throughout the Summer of 1994 there were regular Garda roadblocks. On the 30th September 1994 there was a third major Garda raid this time with very close to 200 Gardai which was conducted in a similar manner to the two previous major raids. In addition to damage to doors tables and signs were damaged. A number of arrests were made and searches were conducted in the car park. Again the Plaintiff wrote letters of complaint and the raid was the subject of an article in the Derry Journal.
The Plaintiff appeared before the District Court on a number of occasions in respect of the summonses which had been served upon him in late 1992. In February 1993 the Plaintiff elected for a trial before a jury in the Circuit Court. The appeal against the refusal to renew the licence continued to be adjourned pending conclusion of the criminal proceedings. The prosecution applied to have the Plaintiff’s trial transferred to Dublin and this was acceded to. The first trial which commenced in late October 1994 was aborted due to prejudicial reporting in newspapers. The Plaintiff found the newspaper reporting at that time offensive and considered it disadvantageous to his business. The first aborted trial caused him a great deal of stress.
The second trial commenced in February 1995 and lasted eight days.
At this point Counsel for the Plaintiff referred to the Judgment of Hardiman J. delivered on the 31st July 2002 on the application for a certificate pursuant to section 9(1) of the Criminal Procedure Act 1993 and in particular to those passages dealing with newly discovered material in pages 31 to 38 of the Judgment. In summary these were as follows –
(1) An allegation by Mrs McMahon, estranged wife of Detective Garda McMahon that he had told her that he had perjured himself at the Plaintiff’s trial.
(2) Evidence of Adrienne McGlinchy that she was given money to purchase drugs and asked by Detective Garda McMahon to plant the drugs at defined places in the Point Inn on the night of a raid so that the Gardai would be in a position to find them or purportedly buy them from dealers on other nights. While Ms McGlinchy did not in fact plant drugs she gave evidence that she was later told by Detective Garda McMahon that the drugs had in fact been planted for him by other persons.
(3) Detective Garda McMahon admitted that he forewarned Adrienne McGlinchy after the raid of the 2nd August of the next raid.
(4) A number of documents were found in the possession of Detective Sergeant McMahon.
In its conclusion the Court of Criminal Appeal said in relation to the matters set out briefly above and in more detail in pages 31 to 38 in the Judgment of that Court –
“Cumulatively, however, they leave the Court in no doubt that a miscarriage of justice occurred”.
The Court found that the second statement of Detective Garda McMahon which was relied on at the trial was false and that his first statement which had been suppressed was quite inconsistent with a significant aspect of Detective Garda McMahon’s evidence.
Following his conviction the Plaintiff was handcuffed in court and taken down. The trial and conviction received widespread publicity. He was photographed being taken away from court. He was taken to Mountjoy Prison. At Mountjoy Prison he was required to strip and shower and was given prison garb comprising denim pants and a denim shirt which were too big for him. He was placed in a cell with two other prisoners shortly to be joined by two other prisoners. He felt threatened by the presence of the other prisoners who were in their twenties the Plaintiff himself then being sixty years of age. For the second night and the following twelve weeks he had a cell to himself. This cell was in the old prison and measured 10′ x 7′. It was in disrepair. It had one window high up. The floor was of lino badly burnt and unclean. His bed had a thin horse hair mattress. There was a stench. The cell was infested with mice and cockroaches. There were no washing or toilet facilities. The toilet was a small aluminium soup pot. He was confined to the cell for seventeen hours each day. He had to slop out each day in the toilet area the floor of which was generally covered with urine, excreta and vomit. He was allowed out of the cell to collect his meals which he then took back to the cell to consume. Apart from taking air in the exercise yard in the morning and afternoon he read in his cell. He found it difficult to cope with his loss of freedom. On a number of occasions he was taken back to the Four Courts in relation to outstanding summonses. On these occasions he was placed in a holding cell with some twenty other prisoners which cell was in a deplorable condition.
After the first trial aborted the Plaintiff decided to sell the Point Inn. Gardai continued to attend at the premises and this affected the business and there was a real risk that the licences might not be renewed. In July of 1994 he was refused insurance on the Point Inn by his then Insurer and was unable to obtain insurance elsewhere. He instructed John O’Doherty & Company, Estate Agents to place the Point Inn on the market: he intended to retain the caravan park which was then under construction. The asking price for the Point Inn was IR£500,000. While there was interest no sale was concluded and the Plaintiff believed this to be because prospective purchasers were awaiting the outcome of the trial in the belief that the premises could be obtained at a lesser price if he should be convicted. After the second trial it was imperative that the premises be sold because of the likelihood that the licences would be lost. However on the morning of the 26th March 1995 the Point Inn was destroyed by fire. He was very low at this time. A particularly bad day was the 29th March 1995 the anniversary of the death of his first son. After this he started to use the gymnasium and this helped him. On the 5th April 1995 he received a letter from the Institute of Chartered Accountants in Ireland that they proposed to institute disciplinary proceedings against him arising out of his conviction. On the successful outcome of the appeal pursuant to the Criminal Procedure Act 1993 section 2 disciplinary proceedings which had been instituted were dismissed.
Following the conviction the licensing matters pending against the Plaintiff were resumed and on two successive days he attended Sligo Circuit Court on the appeal against the order of the District Court refusing to renew the licenses.
A Receiver was appointed over the Point Inn and the caravan park by the International Fund for Ireland in September 1995. The Fund had approved the Plaintiff for a grant of IR£221,000 IR£75,000 of which was paid to him and the same was secured by a charge on the Point Inn and the caravan park. The Receiver sold the Point Inn in its fire damaged state and the caravan park for IR£152,000 together with VAT. The indebtedness to the International Fund for Ireland and secured creditors and the costs and expenses of the Receiver were discharged. There was nothing left for the Plaintiff.
While in prison the Plaintiff suffered from illness. In the gym he damaged his arm and shoulders and was prescribed pain killers. These had a severe effect on his stomach. There was a gradual increase in the pain in his neck and shoulders and he continued to suffer from stomach problems with cramps and vomiting and sleep disturbance. This continued for some seven months before he was sent to the Mater Hospital. The neck and shoulder symptoms were diagnosed as related to his work in the gym. He was treated with injections of cortisone. About this time he applied for temporary release to attend the baptism of his grandchild but was refused. He sought temporary release to attend his daughter’s 13th birthday party on the 23rd August 1995 but was again refused. From the first day he entered into Mountjoy he developed depression and was consistently depressed for most of the first two months. Thereafter his depression was intermittent. He was treated by prescribed medication. He was given tablets to help him sleep but after time was able to dispense with these. In prison he also suffered from vertigo and high blood pressure. He practised meditation twenty minutes each morning and each night to help him cope with his situation and this gave him relief.
While in prison he saw a television programme “Drugs in Donegal” in which Superintendent Kevin Lennon appeared in front of the ruins of the Point Inn and stated that the proprietor was then currently serving a term of imprisonment in relation to illegal drugs. This upset him greatly. Also there were several violent incidents in the prison which upset him greatly. In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some 2½ stone in weight which he attributed to stress, anxiety and depression. His first fourteen applications for temporary release were refused. Christmas was a particularly depressing period and he greatly missed his family. He was allowed weekly visits from his wife but following each visit he would sink into a state of depression and so he asked her to cut down on the number of visits. He had a concern that his situation was affecting his children. He had school reports in respect of his son Christian that he was cheeky and a negative influence on other students and on Ezeriah that he was unsettled and careless in concentration. They were having fights as a result of other children calling the Plaintiff a drug dealer. At this time Christian was 14 and Ezeriah 12 years of age.
The trial on the outstanding six charges was set for the 13th March 1996 but did not proceed being adjourned pending the outcome of the Plaintiff’s appeal and ultimately a nolle prosequi was entered in respect of the same. His belief at the time was that the reason for the adjournment was that the Director of Public Prosecutions wanted the appeal dealt with before the hearing of the further six charges so that in the event that the appeal was unsuccessful the Plaintiff would be before the court as a person with a prior conviction. At about this time also the Receiver withdrew the appeal against the refusal of renewal of the licences attached to the Point Inn. This upset him. At this time also his wife became ill and this added to his concerns both for his wife and his children. She would be required to spend some time in hospital and there would be no one to look after the children. The Plaintiff applied for temporary release to enable him to look after the children for this period but this was refused.
The Plaintiff’s appeal against conviction and sentence was heard on the 13th May 1996 and Judgment was reserved. The Plaintiff was optimistic about the outcome. Judgment was delivered late in July of that year and the conviction was affirmed and the only benefit to the Plaintiff was that he was relieved of the monetary penalty.
Having spent twelve weeks in the cell which I have previously described the Plaintiff was moved to the Training Unit in Mountjoy and remained there subject to one interruption until the first week of January 1997 when he was transferred to Castlerea Prison where he finished his sentence on the 14th May 1997 and was released. The interruption related to a period of twelve weeks when he was transferred back to the main prison for disciplinary reasons. In the Training Unit he had a cell of his own. The cell was quite new and comfortable. The building was new. He had wash up facilities but not a toilet. If he wished to go to the toilet he pressed a bell and was normally let out. The officers were more civil than in the main prison except for one officer who was a bully and gave him “a lot of grief”. Dining was in the dining hall. If he wished he could take the food back to his cell. He undertook two courses one in creative writing and one in computers. While the leaflet which he was given about courses promised remission if a prisoner applied himself he received no remission. He did however receive temporary release for four days at his second Christmas and shortly thereafter was transferred to Castlerea which was described as an open prison. The prison itself was surrounded by a high wall but it was open in the sense that the prisoners lived in newly constructed detached houses and conditions were much better than in Mountjoy. There were no educational facilities there and no library. He spent his time walking in a circle around the yard.
In March 1997 he had further medical problems related to high blood pressure and developed vertigo. He had a heart problem before he went to prison but this deteriorated while in Castlerea. On examination it was found that his heart was missing every seventh beat. His Consultant attributed this to stress. While in Castlerea Prison the Plaintiff got temporary release every weekend. On one weekend however he suffered a back injury and was unable to return. A medical certificate was sent to the prison. However the Gardai arrived at his house and checked that he was in bed. He returned to prison four days late on a walking stick. As a result of this incident his release date which was scheduled for May 2nd 1997 was cancelled. In fact he was released some two weeks later which was two weeks earlier than his actual release date.
On release from prison the Plaintiff found himself practically bankrupt without a job or business. He had received nothing out of the receivership. He was at risk of being struck off by his Institute. He was now almost 63 years of age and he was depressed and angry at what had occurred to him and his family and in despair. He applied for and was given disability benefit on the basis of his back. He was treated with anti depressant medication. He was obsessed with establishing that he was not guilty and with clearing his name. Within his own community he felt ostracised. He was viewed like a pariah. He attended Mass and Holy Communion every Sunday but felt he was being cold shouldered by the congregation and stopped going to the church. He did not socialise. His relationship with his children had been damaged and they were no longer there for him as in the past.
After his release he set about a malicious injury claim in respect of the destruction of the Point Inn. For this purpose a certificate is required from the Chief Superintendent of the Gardai and he had very considerable difficulty getting this. Some three years following his release passed before the certificate came to hand. The claim was defended by Donegal County Council in that they relied on the Malicious Injury Act 1981 section 12 to reduce or exclude compensation upon the basis that the Point Inn had been used for illegal purposes as evidenced by the Plaintiff’s conviction for knowingly allowing the sale, supply, distribution and possession of controlled drugs on the premises and further that there may have been a direct connection between the use of the premises for illegal purposes and the attack thereon which caused the damage. This added to his sufferings and concerns. The plea was only withdrawn on the date of the hearing after his conviction had been set aside. This compounded the delay by the Garda authorities in issuing the necessary certificate which did not issue for two years and nine months following application for the same.
The application pursuant to the Criminal Procedure Act 1993 section 2 was listed for hearing on 20th November 2000 and the period preceding this was particularly stressful for him and while he was informed in October 2000 that there was going to be no objection from the D.P.P. in those proceedings it was still a very anxious time for him. The application pursuant to the Criminal Procedure Act 1993 section 9(1) was heard by the Court of Criminal Appeal in May 2002 and lasted some four weeks. The Judgment was not delivered until the end of July 2002 and again this was a very stressful and anxious time for the Plaintiff. Following that he had to attend on an appeal to the High Court in relation to his malicious injury claim. In the Circuit Court the Plaintiff had been awarded IR£261,850 against which award the Donegal County Council appealed. On appeal the award was reduced to IR£100,000 and was made on the basis of diminution in value of the Point Inn and the caravan park and on the basis that the premises were without a licence.
While as a result of his conviction being set aside and a certificate under the Criminal Procedure Act 1993 section 9(1) being obtained the attitude towards him of the majority of his community has improved but not of all. He now mixes very little with that community. He has returned to Mass. He is still not working. The main reason for this is that he continues to have trouble with his back and also has had to spend a very considerable amount of time assisting his legal team for the present case. Having regard to his age it would be difficult to get a job. He remains angry at what has happened to him. Prior to the events giving rise to this claim the Plaintiff had a drink problem. In 1988 he was admitted to the Rutland Clinic after which he did not drink until May 1993 when he resumed drinking as a result of the actions of the Garda Siochana. Thereafter he continued to drink on and off until early in 2005. He is not drinking at the moment and had not had a drink for some six months. However in the course of this hearing he lapsed. The Plaintiff no longer suffers from vertigo or with his blood pressure. He still suffers with his heart and with his back.
A book of medical reports was put in evidence. It is sufficient for present purposes if I record the opinion of Professor Brian Lawlor, Consultant Psychiatrist following an assessment of the Plaintiff on the 15th September 2004 –
“Although Mr. Shortt has a normal mental state examination at present he has experienced significant emotional distress and two episodes of depression related to events surrounding his dramatic experiences of imprisonment and miscarriage of justice. The prognosis for his depressive episode should be relatively good with resolution of the underlying triggering events. There are ongoing feelings of anger and frustration regarding his experiences and he may benefit from supportive psychotherapy in this regard. The prognosis for his alcohol abuse is reasonably favourable as well as long as he maintains his aftercare programme. Once again resolution of the ongoing stressor should have a positive effect in this regard.”
In a report from the Plaintiff’s general practitioner, Dr. Daniel McGinley it is reported that the Plaintiff was having significant difficulties in acclimatising back to his home/family situation. There were relationship difficulties when he was released home. He found the situation stressful. No medication was prescribed in relation to this. On the 9th September 1997 the Plaintiff was prescribed anti depressant medication for depression and this was repeated on 15th October 1997 and in November 1997.
The Plaintiff then dealt with his claim for special damages. At the time of the events giving rise to his claim the Point Inn and the caravan park were free of charge. The Plaintiff’s private residence had been mortgaged to secure a loan of IR£50,000 which sum was invested in developing the Point Inn. The caravan park across the road from the Point Inn comprised of 7½ acres. Both the Inn and the caravan park were held by a company: however it was agreed between the parties that the properties should be treated as being the property of the Plaintiff. The caravan park had 80 metres frontage to the road and 150 metres frontage to Lough Foyle. Planning permission was obtained for the development of the caravan park in February 1991. The permission was in respect of 40 permanently sited caravans and 20 touring caravans together with a service block with toilets, showers, changing rooms, a recreation room, a swimming pool and a putting green. The Plaintiff was approved for a grant of IR221,000 by the International Fund for Ireland. The grant was repayable in certain circumstances and was secured by a debenture on the company’s assets. Work started in 1991 and was carried out by direct labour. The field was levelled out and services laid. The service block was constructed to the point where it was ready to be roofed. Sub roads had been laid but not yet tarmacadamed. At that point in the development a problem arose with Donegal County Council as the service block was 1 or 1½ metres too high and a Stop Order was served in September 1991 and as a result work stopped. This corresponded with the Point Inn being closed. For the purposes of the development a new architect was retained and an application for retention with variations was made and this was successful in April 1994. The Plaintiff had received £75,000 an interim payment of the International Fund for Ireland grant. This was made on foot of a certificate of the Plaintiff’s architect that expenditure of IR£154,000 had been incurred. Of that IR£154,000 some IR£100,000 was spent in cash and the remainder was represented by extended credit from suppliers. Some suppliers were eventually paid out of the receivership.
Special damages are being claimed under four headings:
(1) Loss of earnings from the Point Inn.
(2) Loss of capital value of the Point Inn.
(3) Loss of capital value of the caravan park.
(4) Loss of future earnings.
The majority of the income of the Point Inn related to the discotheque which was licensed for 850 persons. On the malicious injury application the Plaintiff’s evidence was that it attracted 450 patrons. The income from the nightclub was increasing year on year and in the latter period of its operation well known DJs from England were being used but substantial fees had to be paid to them and the door cover charge correspondingly increased. The increase did not affect the numbers attending. However the accounts are not completely accurate. As a result of a VAT audit the Plaintiff had been obliged to pay an additional IR£21,000 for each year of two years of assessment. The problem arose because monies were being taken out of the door charges without this being reflected in the accounts. Notwithstanding the Garda activity of which he complains the enterprise was very profitable. Had he not been imprisoned he would have expected an annual profit of IR£150,000. Had it not been for his conviction and the burning of the Point Inn he would have continued both the bar and nightclub operation and had no intention of ever selling it. The retention permission for the caravan site provided for 60 sites, a service block, a pitch and putt course, a tennis court and a swimming pool. The projected cost was some IR£500,000.
If necessary he could have raised further finance for the purpose of the development of the caravan park on his family home which was worth IR£500,000 but with a mortgage of IR£50,000 on the same. Because of the Plaintiff’s trial and conviction the development of the caravan park did not proceed further. Had he been able to complete the development of the caravan park his intention was to run it for some 2 – 3 years and sell the permanent sites on the same to caravan owners. At this time such sites are achieving €30,000 but at that time he was thinking in terms of IR£15,000 to IR£20,000. A number of suppliers were owed money in respect of the development of the caravan park and they had registered judgment mortgages against the Plaintiff’s property and which judgment mortgages were discharged by the Receiver out of the proceeds of sale of the Point Inn and the caravan park. In addition to borrowing the Plaintiff expected to be in a position to discharge some of the cost of developing the caravan park out of cash flow. The Plaintiff also claims the sum of IR£10,000 which he paid for legal fees in respect of his first trial.
A Book of Correspondence was put in evidence. The following are relevant –
1. Letter dated 15th February 1993 the Plaintiff to the Minister for Justice in which he stated –
“There is also the additional hazard that some sections of the paramilitaries in Northern Ireland are taking it upon themselves to render their own brand of ruthless justice on people who they deem to be involved in drugs”.
2. Letter dated 13th October 1993 the Plaintiff to the Gardai at Muff, Co. Donegal in which he stated –
“9th September 1993 Provisional IRA issued a death threat to Frank B. Shortt. As a consequence the Point Inn was forced to go out of business”.
3. Letter dated 12th April 1995 Patrick F. O’Reilly & Company, Solicitors to International Fund for Ireland to the Plaintiff which sets out the reasons for the appointment of a Receiver in the following terms –
“We are advised that a director of the company, Frank Shortt, has been convicted and fined for permitting the sale of illegal drugs at the Point Inn, property comprised in the lands covered by the Board’s fixed charge.
Further, we are advised that the Point Inn has been burnt down.
We are further advised that the project which was grant aided by the Board was never completed by you although the offer letter at Condition 5 required completion by September 1991.
The debenture required the company to maintain adequate fire, public liability and employers liability insurance cover on the premises, the subject of the Board’s fixed charge. We understand this Covenant has also been breached.”
The Plaintiff’s Evidence on Cross Examination
In cross examination the Plaintiff said that up to the date the Stop Order was put on the development of the caravan park approximately IR£100,000 of his own money had been spent on the development. IR£64,000 of this is disclosed on the audited accounts and IR£30,000 was obtained by way of loan from a friend. The Plaintiff himself invested IR£19,000. The balance of the cost of the development was covered by credit from suppliers. The estimated cost of the development envisaged by the 1989 planning permission was IR£330,000 and by the 1994 permission IR£580,000. A certificate signed by the architect for IR£150,000 was submitted to the International Fund for Ireland and against this the sum of IR£75,000 was advanced to the Plaintiff. As a result of the 1994 permission a considerable amount of the expenditure already incurred was wasted and the revised development was considerably more expensive. The architect’s estimate included value added tax and as the Point Inn was paying VAT it would be possible to recoup this so that the net cost was IR£518,900. To complete the project he would require further finance. In January 1994 further funds had been sought from the International Fund for Ireland. He would have sought further finance from ICC. Further funds could have been obtained by mortgaging his family home. It was put to the witness that taking all the proposed financial arrangements into account he would have had to find some IR£90,000 himself. At the time there were two judgment mortgages on the premises in favour of suppliers and charges for rates in the amount of IR£12,601.69 and IR£4,047.28 These charges would carry interest. He had a successful action against Donegal County Council for IR£35,000 and Donegal County Council deducted the sums due for rates and interest from this and paid him the balance: however his solicitor was slow in having the charges removed from the title. One of the judgment mortgages was in favour of James Barr & Sons who supplied bricks, cement and blocks for the caravan park development. Notwithstanding these charges he did not anticipate any difficulty in raising further monies by way of mortgage on his family home. He never approached a lender in relation to a further mortgage on his family home. The Receiver sold the Point Inn and the caravan park at public auction after the Point Inn had been destroyed by fire and the licences had been lost although an appeal was pending in respect of that. The Receiver had agreed with the Gardai that if the premises were sold there would be no objection to an application for renewal of the licenses by the purchaser. The Point Inn and the caravan park realised IR£152,000 at auction plus VAT. He did not believe the price achieved represented the market value and he believed that sales by Receivers or Liquidators traditionally make very poor prices on the open market. He acknowledged that there was another charge on the lands in favour of a firm of solicitors Hayes Dixon & McNulty in the amount of IR£927.73. This represented the solicitors fees in respect of a High Court action against Donegal County Council. That sum was discharged on the 25th January 1995. He accepted that in 1992 or 1993 he decided to sell the Point Inn and the caravan park and this was before the Receiver was appointed and before the fire at the Point Inn. The premises were advertised. There was interest from a prospective purchaser in England and from a syndicate in Derry but no solid offer was received. He accepted that was because his asking price of IR£500,000 was too high as was a later asking price of IR£450,000. He accepted that on the appeal to the High Court in relation to the malicious injury claim the evidence was that an offer of IR£400,000 was received in April 1995 and not accepted. Mr. Justice Geoghegan on the basis of valuation evidence led by the parties and on which there appeared to be no agreement accepted that the value of the caravan park was IR£40,000 and accordingly of the IR£152,000 achieved by the premises IR£40,000 could be attributable to the caravan park. The Plaintiff’s valuation evidence given at that appeal was given by Mr. Doherty, the auctioneer entrusted with the sale of the premises by the Plaintiff. The grant from the International Fund of Ireland envisaged the development of the caravan park being completed by September 1991.
The Plaintiff believed the changes in the economy meant it was unlikely that he would have disposed of the caravan park. Since 1991 property prices had increased substantially and caravan parks had become very popular. Had he received a good offer it was likely that he would have sold the caravan park and invested the proceeds elsewhere. However he would never have accepted IR£40,000 for the caravan park site. While he had not the funds available to complete the development of the caravan park he could have raised the same. When the International Fund for Ireland required repayment of the grant had he not been in prison he could have raised the necessary amount on the security of his family home. While the Stop Order was in place on the caravan park he did not seek to raise further finance as there would be little point in doing so. As of November 1993 on enquiry of the International Fund for Ireland he was told that the remainder of the grant was still available. The permission for retention obtained from Donegal County Council also permitted additional caravan sites but required considerable changes to the amenities and buildings as constructed and to the lay-out of services. The appointment of a Receiver by the International Fund for Ireland was precipitated by the fire at the Point Inn. However a letter dated 12th April 1995 from the Solicitors to the Fund also cites the conviction of the Plaintiff as a precipitating event. Had the Plaintiff been able to raise IR£75,000 that would have prevented the appointment of the Receiver but as he was in prison he was unable to do this. Insurance on the Point Inn was cancelled in July 1994. Notwithstanding the absence of insurance he continued to trade. Proceedings were instituted against the Receiver to restrain him from selling the property and these were unsuccessful. The cost of these proceedings reduced the amount available to the Receiver so that there was nothing left for the Plaintiff out of the proceeds of sale. There were also proceedings taken by the Receiver against the Plaintiff and his wife under the Companies Acts. The Receiver took no steps to obtain a certificate to enable the malicious injury claim to be prosecuted. The company’s properties were included in the accounts for 1993 at Director’s valuation of IR£301,027 considerably higher than the price achieved. He agreed that no returns in respect of employees were made to the Revenue from 1990 to 1995: at that time the premises operated only one night per week as a discotheque and the licensed premises only opened in the evenings. In 1994 and 1995 the licensed premises did not open mid week at all but only on Friday, Saturday and Sunday. The staff in these circumstances were paid without deduction. If deduction had been made he would have been unable to get staff.
The Plaintiff accepted that the Dungeon Disco was generally dark. However he did not agree that it was necessary for the Gardai to have flash lights to identify people when inspecting the premises. The nightclub continued until 2 a.m. and required a special exemption order. There may have been occasions where the nightclub operated without a special exemption order. This led to one conviction in respect of the 2nd September 1991 which was before the Plaintiff took control of the premises. There were five further convictions for the offence between May 1992 and May 1993 when the Plaintiff was in charge of the premises. It may have been to these that Sergeant McPhillips was referring when he told the Plaintiff to put his house in order. The witness accepted that other licensed premises in the vicinity were visited by the Gardai but they were not subjected to raids such as the three raids conducted on his premises nor were road blocks directed at those premises. It was put to the witness that “raves” are essentially different to other kinds of discos in that they have a hyped up atmosphere with continuous music. The music has a throbbing beat. He was not aware then that there was a concern that the type of entertainment offered was attractive and inviting to people in the drug scene. He was unaware of any association between the consumption of water and non stop dancing with the taking of drugs. He was at all times aware of the possibility of drugs being sold and used on the premises and it was for this reason that he was willing to co-operate with the Garda under cover operation. After the first major raid he accepted the reality that drugs were being used on the premises. At his meeting with Superintendent Kenny on 9th June 1992 he did not recall Superintendent Kenny saying that raves were attractive to drug users. He agreed that he was aware that on the first hint of Gardai entering premises those holding drugs throw them into lavatories or basins or to the floor. He accepted that in these circumstances it is necessary if a search is being carried out that the premises be immediately occupied by Gardai so that there is no advance warning.
With regard to the appointment of a Receiver he believed that a precipitating event was the absence of insurance.
The Plaintiff’s Evidence on Re-Examination
The Plaintiff’s family home is a very old Georgian house in a rural area on three acres. It has four bedrooms and a swimming pool with a view of Lough Foyle. As far as he is aware the Garda under cover operation did not lead to any convictions. As a result of the major raids four persons were arrested and charged with possession but none were convicted. There had been media coverage of the major raids on the Plaintiff’s nightclub: if there were raids on other premises there was no publicity in relation to the same. Were it not for the prosecution he would have developed the Point Inn and the caravan park. He believed that the income from the Point Inn would have been of assistance towards making repayments on any mortgage to develop the caravan park. He had received an informal valuation of his family home as of October 2004 at €1m. In order to complete the development of the caravan park under the 1994 permission IR£560,000 was required: IR£146,000 of this was available from the International Fund for Ireland and a further IR£160,000 had been approved by ICC. He still had available a significant equity in the family home and in the Point Inn and the caravan park and could have re-organised his borrowings. There was also the prospect of a malicious injury award although this was being delayed by the non availability of the Garda certificate that the fire was caused by a subversive organisation. Had he not been in prison he could have readily raised the IR£75,000 necessary to satisfy the International Fund for Ireland and prevented the receivership: as he was in prison he was not earning.
Evidence of Sally Shortt the Plaintiff’s Wife
The witnesss gave evidence confirmatory of that of the Plaintiff. She visited the Plaintiff the day after he was imprisoned. He looked completely different: he was shocked and looked terrible and was angry and upset. She visited him in prison thereafter and saw his condition deteriorate to the point where he was an old man and like a zombie. She did not think he would survive the prison term. When released from prison the Plaintiff was in good form but later went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was a disability allowance. While the Plaintiff was in prison she continued to run the Point Inn until the fire. The Friday night disco was managed by the Plaintiff’s son but the witness attended. During that period the Gardai still attended at the premises. As a result of the fire it was not possible to re-open the premises. To provide an income the witness worked as a nurse doing night duty. She also had a Prisoner’s Wife Allowance. The Plaintiff did manage to get a job for a short time. Prior to his imprisonment the children had a great relationship with the Plaintiff but this never really recovered when he was released from prison.
Evidence of John P. Ward
The witness is a solicitor practising in Donegal. He was consulted by the Plaintiff in relation to his problem of obtaining a certificate from the Gardai in relation to the malicious injury claim. Later he took over the malicious injury claim. He had difficulty obtaining expert witnesses within Donegal because of the perception of the Plaintiff and had to obtain them outside the county. Donegal County Council defended the case bitterly. They served a notice under section 12 of the Malicious Injuries Act 1981. In addition to the application to Donegal County Council he also acted for the Plaintiff in the proceedings pursuant to the Criminal Procedure Act 1993 section 2 and section 9(1). In his experience the successful outcome to these two sets of proceedings did not alter the attitude of the community towards the Plaintiff in that he was still regarded as guilty.
Special Damages
Two witnesses were called on behalf of the Plaintiff in relation to special damages – Mr. Des Peelo, a Chartered Accountant and Mr. John Young an Auctioneer and Valuer.
Evidence of John Younge
Mr. Young furnished the Court with two reports one on the Point Inn and one on the caravan park. With regard to the Point Inn he had not inspected the premises prior to the fire or their reconstruction. As described to him the Point Inn was a detached neo Georgian style residential seven day licensed premises well known as an entertainment venue and extending to approximately 4000 square feet with a manager’s flat overhead. There was good road frontage and a car park. In addition to its seven day intoxicating liquor licence the premises had the benefit of a public dance licence and a restaurant certificate. He was advised that the business carried on was a family run entertainment trade conducted approximately three nights per week which was geared towards the younger element with clientele coming from a wide catchment area to be entertained by well known cabaret/show business personalities. The turnover for the year ended 27th March 1995 was IR£177,000 of which IR£100,000 was derived from door receipts. The projected turnover for 1996 was IR£188,430 of which IR£125,960 was represented by door receipts. The premises are close to Derry city fronting on to a busy main road in a scenic coastal district and had potential for development. In his opinion the open market value of the Point Inn if fully operational at the dates given is as follows –
As at March 1995 €685,000
As at 17th February 2003 €1,150,000
In relation to the caravan park he had regard to the planning permission granted in April 1994, the existence of a grant from the International Fund for Ireland and the estimated cost of the development at €741,286. He based his valuation on an annual rent per site of €1,269. He assessed the value of the caravan park in his report as follows –
As at March 1995 €200,000
As at February 2003 €400,000
In evidence the witness said that he had updated his position as at the date of his evidence – November 2004. The licensed premises as they then existed have been considerably upgraded as a modern licensed premises up to modern day standards and was then for sale with an asking price of €2.5m. and an offer of €1.7m. has been received. These figures support the view which he formed when making his initial valuation of the potential of the licensed premises. The cost of bringing the original premises up to the present standard would be in the order of €750,000. He is aware that Mr. Morrissey, Valuer on behalf of the Defendant, in his report valued the premises in 1995 at €325,000. He agrees with Mr. Morrissey that an entertainment as opposed to a traditional licensed premises has a more limited market: however the premises could readily have been converted into a traditional licensed premises. Mr. Morrissey in his valuation took into account the reputation of the premises following the Plaintiff’s conviction but the witness had not done so. He took the view that a prospective purchaser could distance himself from any reputation and that is in fact what happened when the premises were redeveloped. He did not envisage a purchaser having any unusual difficulty in getting finance to purchase the premises. He did not agree with Mr. Morrissey’s approach in focusing on turnover figures per se and not considering potential.
With regard to the caravan park he had revised the figure which he placed on the same in February 2003. Over the past weeks he had obtained evidence of some sales of caravan parks in County Donegal. A seven acre developed caravan park with 50 serviced sites at Tulley Bay, Clonmany, Co. Donegal was sold in December 2000 for IR£600,000 (€762,000) equivalent to €108,857 per acre. On the 27th October 2004 a developed caravan park with 25 sites at Neirn, Portnoo, Co. Donegal of 1.85 acres was sold for €1.43m. that is some €57,000 per site. In the light of these he has revised his valuation to €560,000 on the basis of a site with zoning for a caravan park. He arrives at this figure by applying a value of €70,000 per acre.
With regard to his historic valuation as at 1995 he has since learnt of the sale of a caravan park in Skerries, Co. Dublin in 1997: the site was 8½ acres zoned amenity lands and developed as a caravan park and achieved €381,000 or €44,000 per acre. The witness’s 1995 valuation was less than €30,000 an acre.
The witness referred to an excerpt from the Practice Handbook of the I.A.V.I. dealing with licensed premises and which he wrote. This reflected the approach which he had adopted in relation to the Point Inn. With regard to the caravan park he would agree that the price of €1.43m. obtained for the site at Neirn was a sensational price. However that site was obtained with a view to developing it as holiday homes. He is satisfied that the price achievable for caravan sites is almost as high as that achievable for holiday homes and his figure of €70,000 per acre takes this into account. Mr. Morrissey in his opinion quotes an annual charge of €1,000 or €1,100 per site for caravan sites with beach frontage and contrasts the Plaintiff’s site as being isolated. The witness did not consider the site isolated as it was close to the foreshore on the peninsula and in a pleasant scenic area and while it has a rural aspect it is on a coastal route. Mr. Morrissey’s report suggests a capital value of £20,000 per caravan site in a four star site. He postulates a value of between €10,000 and €15,000 per site for the Plaintiff’s site giving a value between €400,000 and €600,000: against this would have to be set off the cost of upgrading the site to ensure that it is fully compliant with planning. Mr. Morrissey accepts that the value of €560,000 placed on this site would be appropriate if the site was fully compliant with planning permission and had appropriate grading.
Mr. Younge was cross examined. He was aware that the Point Inn and the was offered for sale in 1993 at IR£300,000. He considered this a low price. He accepted that a sale was not achieved at that price and that that was a relevant factor in valuing the premises as of 1995. He was aware that Mr. Shortt had offered the entire premises for sale in 1994/1995 at IR£500,000 and that while there was an interested party at IR£400,000 to IR£420,000 the premises were not sold. He was aware that Mr. O’Doherty, an Auctioneer advising the Plaintiff valued the caravan park as it was then at IR£40,000. He did not agree with Mr. Morrissey’s approach in basing his valuation of the Point Inn on turnover as this ignored potential.
As to the current valuations Mr. Morrissey agreed with him that to upgrade the Point Inn to their present standard would have cost some €750,000. The premises as they now exist are of a much higher standard and radically different in terms of accommodation and turnover. The fact that the Point Inn had been developed bears out his opinion that the Point Inn had potential. The valuation of €1.15m. which the witness placed on the Point Inn was based on some 15 to 20 comparisons. The witness did not agree that the most secure way of valuing the Plaintiff’s properties was to do so as of 1995.
The witness was aware that in the course of the malicious injury application appeal the Plaintiff’s valuer placed a value on the caravan park of approximately IR£40,000. The witness in arriving at his valuation did not pay particular attention to the standard to which the site was to be developed. He agreed that the higher the standard the higher the cost of development. The witness agreed that the site at Portnoo differed in that it was a beach front property and in a popular area of Donegal and an area more popular than that in which the Plaintiff’s site is situated. The Portnoo site was also developed to a very high standard. The witness was not in a position to give evidence as to the cost of upgrading the Plaintiff’s caravan park to four star standard.
It was put to the witness that Mr. Morrissey would value the Point Inn as within the range €605,000 to €630,000 and that this figure is based on statistics available as to the increase in the price of alcoholic drinks since 1995 and statistics on numbers passing through doors at nightclubs. He disagreed with Mr. Morrissey’s approach in that it focused exclusively on turnover as this was to ignore potential. The witness agreed that the comparisons he used for the Point Inn were not identical in that they operated as ordinary licensed premises throughout the week and as a nightclub on three to four nights a week.
In re-examination the witness said that it was possible to value licensed premises without any information as to turnover. Because the Point Inn operated on such a limited basis it had a greater level of potential for development. The witness did not necessarily distinguish between a beach front caravan park and the Plaintiff’s site. In his valuation of the caravan park he has valued it as a site with the benefit of zoning.
Evidence of Des Peelo
Mr. Peelo is a Chartered Accountant. He prepared a report for the purpose of the hearing. He had seen a report prepared by Mr. Ray Jackson on behalf of the Defendant. Insofar as Mr. Peelo and Mr. Jackson gave evidence as to the capital value of the Point Inn and the caravan park I propose to ignore same in favour of the evidence of valuers called by the parties.
In respect of the Point Inn up to March 2003 the witness estimates the loss of net of tax profits at €533,062: Mr. Jackson on behalf of the Defendant gives a figure of €531,585 his figure however being in respect of a nine year period as opposed to the witness’s eight year period. The witness was prepared to accept Mr. Jackson’s calculations. As the difference between Mr. Peelo and Mr. Jackson is so small I propose to treat them as being in agreement and ascribe a figure of €550,000 to this head of damages for the period up to date.
With regard to loss of net of tax profits to date from the caravan park the witness’s calculation is €187,458 as against Mr. Jackson’s calculation of €38,000. In the course of cross examination the witness accepted that it was unlikely that the Plaintiff would have been able to develop the caravan park and this element of the Plaintiff’s claim was then abandoned.
The witness was referred to Mr. Jackson’s calculation of losses and in particular to a sum of €178,131 which in Mr. Jackson’s opinion should be deducted from any award to the Plaintiff. The sum was made up of the sum of €51,157 which he treated as received from the receivership and €126,974 received on foot of the malicious injury claim. He was asked if it was proper to set off these sums against the Plaintiff’s claim. Mr. Peelo agreed that the sum of €126,974 is a proper set off against the capital value of the Point Inn and the caravan park. Mr. Jackson however set it off against the losses claimed generally rather than against the premises. The sum of €51,157 was applied in satisfying creditors and legal fees. Without further information the witness was uncertain in relation to the sum of €51,157 the proceeds of the liquidation. Had the Plaintiff not been charged and convicted there would have been no receivership.
The witness then gave evidence as to the general economic climate between 1992 and 1995. At the end of September 1992 the United Kingdom left the European Monetary System and interest rates increased dramatically. Ireland devalued at the end of January 1993. The currency system did not get resolved until March 1993 when interest rates began to stabilise. Throughout 1993 very few properties were sold or even put up for sale because of the uncertainty over interest rates. The market revival commenced in the Spring or Summer of 1994 and confidence came back to the property market. For most of 1993 and into 1994 the property market was difficult. There was a gradual recovery throughout 1994 beginning in urban centres and somewhat later in rural areas.
The Defendant’s Case
The Defendant called two witnesses Mr. Ray Jackson a Chartered Accountant and Mr. Tony Morrissey an Auctioneer and Valuer.
Evidence of Mr. Jackson
Mr. Jackson handed in his report to the Court. In his view the Plaintiff had insufficient funds available to him to enable him to complete the campsite project. He considered the question of the capital value of the campsite to be one for a valuer rather than an accountant. In the witness’s opinion the claim should be mitigated by the sum of €51,157 received from the receivership and €126,974 received from the malicious injury claim. As to the caravan park development he sees it as a pipe dream as the required finance was not in place. In his opinion the Plaintiff would not have been in a position to raise the necessary funds for the development of the same. In the witness’s view in dealing with the capital value of the Plaintiff’s business for the purposes of compensating him it would be appropriate to include the same at current value.
Evidence of Tony Morrissey
A report by Mr. Morrissey dated 17th February 2003 and two letters of the 26th October 2004 and 29th October 2004 were put in evidence. For the purposes of giving evidence he had inspected the site and had availed of information on turnover contained in the Plaintiff’s discovery. He had examined the licensing history. He obtained information as to the manner in which the premises operated. With regard to the licences there were two endorsements on the same and the licences had not been renewed. He was aware that the premises were not insured. He investigated all sales of licensed premises in the Inishowen peninsula in the period January 1994 to December 1995. He spoke to the agents who had carriage of the sale of premises in the area in that period. Of nineteen premises offered for sale in that period only two had been sold and in respect of these he looked at the ratio between turnover and sale price. In relation to the Point Inn the profit margin on turnover was very much in line with the industry norm. Turnover and profit margin are important in arriving at a valuation and these will dictate the level of mortgage repayment which a purchaser could make. He valued the Point Inn as a going concern to include good will, seven day licence, fixtures and fittings but exclusive of stock. He took account of the Manager’s accommodation overhead.
The witness had inspected the caravan park on the 4th September 2005 although on that date he had not been asked to value the same. He was aware of the sale of a caravan park at Neirn, Portnoo, Co. Donegal in October 2004 for €1.43m. The site had planning permission for 40 permanent sites and 20 tourist sites with ancillary accommodation. The purchaser intended to develop the same by building ten to twelve houses. The annual charge for a caravan site in Donegal for four star beach front sites is between €1,000 and €1,100 per site. Having regard to this he arrived at a value of €550,000. He did not consider the site at Skerries mentioned in evidence by Mr. Young as comparable: geographically it is different: it is sea front whereas he would describe the Plaintiff’s site as lakeshore and beach front carries a significant premium. He regards the Plaintiff’s site as isolated in that there is nothing around it in terms of another caravan site. Compared to other sites in particular Jack’s Hole at Brittas Bay the site looked tired and needed money expended on it. A sea front site in Donegal could achieve €20,000 per site. The Plaintiff’s site not being sea front would have a value of €10,000 to €15,000 per site. This gives a spread of values between €400,000 and €600,000. These figures relate to a developed planning compliant four star site.
On the basis of the two premises which were sold in the Inishowen peninsula he put a value of €325,000 on the Point Inn as of 1995. He availed of figures available from the Central Statistics Office which showed an increase of 50% in the average price of alcoholic drinks between 1995 and 2004 and he applied this to the turnover of the premises for drink sales. He did a similar exercise but with less information available from the Central Statistics Office in respect of door receipts. On these calculations the present turnover for liquor sales would be €146,655 net of VAT and door receipts €190,500 net of VAT. He applied the current turnover/profit ratio to these figures and that gave an overall value of €531,000. The overhead accommodation had a value between €75,000 and €100,000. Taking this into account he places a current value on the premises if they still existed in their original form at €630,000. With regard to Mr. Younge’s valuation of the Point Inn as of 1995 if the premises could achieve the additional turnover which Mr. Younge postulated he would not disagree with his valuation. However the premises had been offered for sale and a purchaser had not been achieved at IR£300,000 and Mr. Young would appear to have ignored this. With regard to Mr. Peelo’s evidence as to the economic situation in 1992, 1993 and 1994 statistics showed that 2.7% of the stock of licensed premises in Dublin changed hands in 1992 while in the previous year it had been 6.9%. However the figures for 1993, 1994 and 1995 were 4.5%, 4.25% and 5.16% which suggests that the problems in the market had resolved. In calculating the current value of the caravan park he had not ascribed anything to the touring caravan sites: they are in the nature of short lets. The profit margin on sales of alcohol in rural areas is now 47% to 55%. He accepted that the profit margin at the Point Inn was 77% in 1995 and 76% in 1994 and that that was in line with the industry norm for entertainment venues. However the operational overheads for entertainment venues are higher than on a traditional pub. Further the figures of 77% and 76% profit are distorted because they include door money. In a rural traditional pub one would expect a profit margin of 35% to 45%. The witness agreed that a purchaser would be impressed with the increase in turnover reflected in the accounts for the Point Inn and would also have regard to potential for further growth. In the witness’s opinion the market for entertainment venues was much smaller than for traditional licensed premises. In arriving at a value the witness had applied a figure of 1.25 times turnover on drink and food giving a value of €325,000. The witness was questioned as to whether he had taken into account as a factor the Northern Ireland ceasefire or the celtic tiger: from his replies it would appear that he had not but that these had no relevance to the manner in which he arrived at a current value for the premises having based his valuation on his experience of the ratio between turnover and profit margins.
Assessment of the Evidence
A. The Plaintiff’s Evidence
I accept the Plaintiff’s factual account as to what occurred and the effect upon him of his being charged, of his abortive trial, his trial and his imprisonment and the situation which he faced and still faces. I am of the view that insofar as the Plaintiff has not yet been vindicated in the eyes of the community the award of damages in this action will fully vindicate him. I do not propose making an award of general damages into the future. His account was not challenged in cross examination. The Defence essentially confined itself to arguments on causation and remoteness of damage and quantum in relation to special damages. Thus it was argued that the Defendant was not liable in respect of the fire at the Point Inn and the consequences of the same the receivership and its consequences.
I am satisfied that the Plaintiff has established in evidence causation, that is the required factual nexus between the events of which he complains, principally his conviction, and the closing of the Point Inn and the fire there and its sale together with the caravan park by the Receiver. The fire at the Point Inn was temporally related to the Plaintiff’s conviction. The Gardai certified the fire as subversive I am satisfied that it occurred by reason of a perception that the Plaintiff was involved in dealing in drugs fortified by the conviction. The Plaintiff received threats from the IRA and closed the premises. As a matter of probability I am satisfied that the threat was ultimately carried out in terms of the burning down of the premises: however this occurred only after his conviction and as a matter of probability the conviction was the proximate cause, the circumstance that triggered this. Incidentally Donegal County Council shared this view. By way of defence to the Plaintiff’s malicious injury claim it raised section 12 of the Act and only withdrew this when the conviction was overturned by the Court of Criminal Appeal. The fire and the receivership occurred at a time when the Plaintiff was in prison. Were he not in prison if on the basis of delay in carrying out the caravan park development the International Fund for Ireland had sought to recover the grant I am satisfied that the Plaintiff could have satisfied their claim by raising a mortgage on his family home and in which events the receivership would not have occurred and as a matter of probability the Plaintiff’s entire enterprise would not have collapsed. I am satisfied that these losses were foreseeable. Earlier in this Judgment I have referred to letters dated the 19th February 1993 from the Plaintiff to the Minister for Justice and the 13th October 1993 to the Gardai at Muff referring to the IRA threats. This correspondence is sufficient to make the fire which ultimately occurred foreseeable. I do not ignore the circumstance that threats were received after media publicity in relation to the Garda raid on the premises on the night of the 3rd/4th August 2002 but I consider it significant that nothing occurred to give effect to the threats until immediately after the Plaintiff’s conviction.
B. The Evidence of Mr. Peelo and Mr. Jackson
Effectively their evidence was confined to one element of quantum namely the loss of net of tax profits of the Point Inn. They were effectively add idem and on the basis of the same as indicated above I propose to assess this loss at €550,000.
C. The Valuation Evidence
A. The Caravan Park
In his report of February 1993 Mr. Younge the Plaintiff’s Valuer valued the caravan park at €400,000. He revised this in his oral evidence on the basis of comparisons to €560,000 as a site appropriately zoned and with the 1994 permission in place. While the comparisons to which he referred were of assistance I have come to the conclusion that he did not sufficiently take into account the differences between those comparisons and the subject site. Particularly I accept the evidence that the subject site is somewhat less attractive than the sites at Tulley Bay and Neirn to which he referred and I would discount somewhat his valuation on this account. The site at Nairn was sold as a site for housing/holiday home development and realised a sensational price. Each of these sites was sold in a developed state and I have no satisfactory evidence of the current cost of developing the Plaintiff’s site.
Mr. Morrissey the Defendant’s Valuer approached his valuation on a somewhat different basis. He sought to place a value on the site as developed in accordance with the 1994 permission and arrived at an upper figure of €600,000. To arrive at the value of the site in its present condition from this figure would have to be deducted the cost of developing it which in 1994 was estimated at IR€560,412 but with credit for the outstanding portion of the International Fund for Ireland grant €146,000. I have no evidence of the current cost of development. In addition Mr. Morrissey ascribed no value to the touring caravan sites which were provided for in the 1994 permission: I have no evidence of appropriate value to be ascribed to such a site. Again the evidence before me is that of the works carried out pursuant to the 1989 permission for the caravan park portion of same would have reduced to some extent the cost of completing the development envisaged by the 1994 permission. For the purpose of the exercise of evaluating Mr. Morrissey’s evidence I propose taking as the present value of this work the amount certified by the Plaintiff’s architect IR£150,000 or approximately €190,000 and allow one half as being of benefit to the 1994 development. On the basis of Mr. Morrissey’s evidence to arrive at a valuation an exercise such as the following would require to be carried out:
Valuation at €15,000 per acre per permanent site €600,000
Valuation of touring caravan sites (estimated) say €100,000
________
€700,000
Less net cost of development
Gross costs as per 1994 estimate €710,000
Less
Balance International Fund for Ireland grant €185,000
One half value of works under 1991 permission €95,000
________
€280,000 €280,000
________
Net Cost of development €430,000 €430,000 ________
Net Value of site €270,000
I do not have the evidence to conduct this exercise and I am satisfied that there are too many imponderables in this calculation for me to rely upon the same and accordingly I propose to have regard to the approach in evidence of Mr. Younge. I propose to discount the same somewhat as I believe he has in arriving at a valuation failed to take into account sufficiently differences in location between the comparisons which he relied upon and the Plaintiff’s site. I also take into account that the site at Neirn was acquired for development as housing/holiday homes and achieved a spectacular price. Mr. Younge himself regarded the price obtained as including a premium. I also take the view that any valuation of the caravan park would be influenced by the cost of development at current figures and I have no evidence of this. Doing the best I can in these circumstances I propose to ascribe a value to the caravan park as of the date of hearing of €350,000.
The Point Inn
In his valuation of the Point Inn Mr. Younge had regard to the premises in their present condition they having been extensively re-developed. Both Mr. Younge and Mr. Morrissey have agreed that an appropriate figure for the costs of that re-development is €750,000. At the date of his valuation November 2004 the premises were for sale with an asking price of €2.5m. and an offer of €1.7m. had been received. These figures are used in support his valuation in his report of February 2003 of €1.15m. for the premises. Mr. Younge understood that the Plaintiff operated the premises as an entertainment venue on three nights per wee while the evidence was that the bar operated three nights per week and the discotheque one night: this misinformation would have had an effect on Mr. Younge in estimating the potential of the business carried on at the Point Inn. Mr. Morrissey approaches the valuation on a different basis concentrating exclusively on turnover. He did not take into account potential. He took into account the stigma attached to the premises by reason of its licensing history – two endorsements and an objection to the renewal of the licences pending. Upon this basis he placed a valuation on the Point Inn of €630,000.
I am satisfied that some adjustment must be made to the approach of each of the Valuers. It is unrealistic to think that a purchaser of the premises would invest €750,000 in developing the same after purchase yet at the time of purchase would ascribe to the vendor the full enhanced value of the premises resulting from such investment in terms of the premises themselves and the increased trade which he would undoubtedly expect to result. Put another way the purchaser is carrying the risk of a substantial investment and would expect a return on the same. He would value the premises in their condition at the date of purchase, add a premium for potential and would I have no doubt expect at the completion of reconstruction to have premises worth more than the total of the purchase price and the cost of reconstruction to reflect the risk undertaken. On the other hand I am satisfied that Mr. Morrissey erred in not allowing some element for potential in his valuation. I admit that there is a difficulty in doing so. The Plaintiff is a Chartered Accountant and clearly on his evidence an ambitious businessman with experience not just of the licensed and entertainment trades but also of property development in Canada, a poultry business and an aquaculture business. Notwithstanding this the licensed premises traded only at weekends and the discotheque one night per week. If the potential was there to develop these businesses I would have expected evidence of attempts to expand the opening hours by trading as licensed premises every evening and as a discotheque two or three evenings per weekend but there is no such evidence. The explanation it may be is to be found in correspondence introduced in evidence in which the Plaintiff attributes 90% of his trade to persons travelling from Northern Ireland and it may be that one could not expect them to travel other than at weekends. This suggests to me that the potential was limited. I am not satisfied as a matter of probability that had the Plaintiff continued to operate the licensed premises that he would have developed it in the same manner or to the like extent as it developed under the purchaser. The Plaintiff’s focus was on entertainment. The purchaser of the premises developed the same as a licensed premises with sixteen bedrooms and a seventy seater restaurant and function room which suggests to me that the purchaser operated the premises essentially as a small licensed hotel. The approach which I propose to adopt is to take Mr. Morrissey’s figure based on turnover and adjust the same as best I can to take into account potential which he omitted and stigma in respect of which he made a deduction. I have no evidence of the amount of the deduction made by Mr. Morrissey in respect of these factors. Insofar as stigma is concerned I do not believe that the existence of two endorsements would concern a purchaser as these would be removed from the licence upon transfer to him. With regard to the objection to the renewal of the licence what in fact happened is that the objection was withdrawn when an application for renewal was made by the purchaser: it appears that the purchaser had received assurances to this effect. In these circumstances it is probable that a purchaser from the Plaintiff would have taken the same view. As to potential I note that the premises is situated close to Derry City from where 90% of its custom is derived and fronts on to a busy main road. Doing the best I can on the evidence available to me I propose to ascribe a value to the Point Inn at today’s date of €700,000. However in awarding damages I am satisfied that it is appropriate to deduct from this sum the amount of the malicious injury award €126,974. In addition the Point Inn and the caravan park were sold by the Receiver for €193.040. The Plaintiff received a benefit from the proceeds of sale as follows –
(i) Repayment of grant to International Fund for Ireland €95,250
(ii) Payment of creditors €21,555
These sums must be deducted in arriving at the loss to the Plaintiff. The balance of the monies coming to the Receiver were applied as follows –
Receiver’s fees €43,084
Legal Fees €40,244
Balance paid to the Plaintiff’s Solicitors
and retained by them €8,770
As I take the view that the Receivership as a matter of probability would not have occurred were it not for the events complained of in these proceedings the International Fund for Ireland relying inter alia upon the Plaintiff’s conviction and the fact that the Point Inn had been burnt down as grounds to appoint a receiver these amounts should not be deducted from the capital value of both premises the Point Inn and the caravan park as I have assessed them.
The evidence before me is that the Plaintiff would have been unable to develop the caravan park in accordance with the 1994 permission and in these circumstances the grant to the International Fund for Ireland would have been repayable. It was in fact repaid out of the receivership.
In these circumstances damages flowing from the loss of the Point Inn and the caravan park are as follows –
Caravan Park €350,000
The Point Inn €700,000 ________
€1,050.000
Less proceeds of malicious injury claim €126,974
Less benefit received from receivership
(i) Repayment of grant €95,250
(ii) Payment of creditors €21,555
_______
€243,779 €243,779
_________
€806,221
The Claim at Common Law
The claim at common law is in relation to events which occurred prior to the Plaintiff being charged which date I have taken as 1st October1992. The events can briefly be summarised as follows –
1. The attendance at the Point Inn on the 18th April 1992 of Sergeant McPhillips and his regular attendances thereafter with a small number of Gardai to inspect the same.
2. Roadblocks on the main road from Derry to the Point Inn on two occasions. While the roadblocks may have been erected on more than two occasions I have direct evidence of just two.
3. The raid on the Plaintiff’s premises on the night of the 3rd/4th August 1992 by a large number of Gardai and their conduct in the course of such raid.
There are a number of matters which I consider relevant. When the Plaintiff re-opened his premises as the Dungeon on the 18th April 1992 it already had a licensing history. There were two endorsements arising out of sales after hours. The Plaintiff admitted that at times he had not obtained a special exemption order but nonetheless carried on business after ordinary licensing hours. Having regard to this I am satisfied that the attendances by Sergeant McPhillips on the premises with a small number of Gardai were appropriate to ensure compliance with the licensing laws. While subsequent events might raise a suspicion that the attendances were otherwise motivated I am not satisfied as a matter of probability that this was so.
With regard to the two roadblocks of which I heard evidence I am not satisfied that these were directed otherwise than at persons who intended to attend at the Plaintiff’s premises. Their objective was to intercept persons who might have with them controlled drugs either for sale or consumption. The first such roadblock occurred on the 7th June 1992 after the Plaintiff’s premises had re-opened as the Rave in the Cave. While I am satisfied that the Plaintiff had no knowledge at that time of the connotation of “rave” I am satisfied that that word at that time among the generation availing of the Plaintiff’s premises enjoyed a connotation with drug use in conjunction with dancing. For this reason I am not satisfied that the setting up of these two roadblocks was motivated by any improper purpose: it may equally have been a legitimate exercise on the part of the Gardai to prevent the sale or consumption of controlled drugs on the premises there being a legitimate concern that the name of the premises might attract persons intent on supplying or consuming controlled drugs.
Finally with regard to the events on the night of the 3rd/4th August 2002 this was a search carried out pursuant to a search warrant. The effect of the evidence is that if such an operation is to be successful an element of surprise is necessary and it is necessary in effect to saturate the premises with Gardai so as to prevent those persons in possession of drugs disposing of the same in the toilets or by discarding them on the floor. On the evidence I am not satisfied that the Garda operation was an abuse of the powers conferred by the search warrant. Again while subsequent events might suggest an improper purpose I am not satisfied as a matter of probability that this was so. There is however a complaint that the operation was unnecessarily heavy handed. Some furniture was destroyed and an emergency exit was broken down with a sledge hammer from inside. I have no evidence as to special damages which were incurred as a result of this conduct and which conduct could not reasonably be said to be incidental to the powers conferred by the search warrant. I propose to award damages in respect of the same under the heading of breach of constitutional rights. In the absence of evidence as to the cost of remedying the damage I propose to award the sum of €5,000 by way of general damages.
Claim under the Criminal Procedure Act 1993 section 9(1)
(i) General Damages
In terms of general damages it seems to me appropriate to regard the claim for the purposes of assessing damages as analogous to one for defamation and accordingly the dicta of the Supreme Court in De Rossa v Independent Newspapers plc 1999 4 IR 432 are relevant. Thus it is not necessarily appropriate in arriving at an award to have regard to the level of damages for personal injury and the award should be sufficient to operate as a vindication of the Plaintiff to the public in general and in particular to the community in which he lives. The Court should make an overall award which whilst having regard to the level of awards made in respect of the several torts comprised in the claim reflects the wrong suffered by the Plaintiff. The major elements in the account given by the Plaintiff for which he requires to be compensated are the following –
1. The effect upon the Plaintiff of being charged, tried, convicted and imprisoned in terms of stress and anxiety. I must have regard to his first trial having been aborted and the second and his appeal against conviction, his two applications under the Criminal Procedure Act 1993 to the Court of Criminal Appeal, his involvement in the licensing issues, his involvement in the malicious injury application and his involvement with the Receiver. All of these I am satisfied imposed upon him great stress and anxiety.
2. The period of 27 months for which he was detained in prison taking into account the conditions under which his sentence was served. I am satisfied however in this regard that awards of damages in cases involving short periods of false imprisonment for example to a Plaintiff wrongfully suspected of shoplifting are of no assistance: I am satisfied that it is not appropriate to extrapolate from such awards on a time basis and attempt thereby to produce a multiplicand.
3. The effect upon him physically and mentally and in terms of personal injury of his imprisonment.
4. His exclusion from family life.
5. The effect upon his reputation and standing in his community. With regard to the latter account should be taken of the odium which attaches to the offences of which he was wrongfully convicted. I must also have regard to the evidence that while his successful applications to the Court of Criminal Appeal have rehabilitated his reputation in the eyes of many within the community in which he lives there are others who harbour an attitude that there is no smoke without fire and continue to regard him differently than they did in the period prior to the circumstances giving rise to this claim. However I take the view that the award in this case will finally vindicate the Plaintiff.
6. The Plaintiff suffered personal injury as documented in the medical report and outlined by him in evidence. When he sustained injury there was delay in referring him to hospital.
7. The Plaintiff is a Chartered Accountant. His conviction led to his membership of his Institute being under threat.
8. He was 57 years of age when the events of which he complains commenced. His final vindication comes with the award of damages which he will receive in this action and his suffering can fairly be said to have spanned a period of twelve years. He entered prison at the age of 60 a time of life when it must be expected that the rigours of prison life would have a greater effect upon him than on a younger man. While in prison he had hanging over him a further six charges with a real possibility of his being convicted and having a further lengthy prison sentence imposed upon him and which threat was not removed until 2000.
Taking all the circumstances into account I award the Plaintiff the sum of €500,000 general damages.
(ii) Aggravated and Exemplary Damages
It can be said that both aggravated and exemplary damages are awarded in respect of the external circumstances accompanying the cause of action. The former are measured on the basis of compensation. They represent additional compensation to a Plaintiff where his sense of injury is heightened by the manner in which or the motive for which the act giving rise to the claim was committed. Such damages represent a recognition of the added hurt or insult to a Plaintiff who has been wronged and a recognition of the cavalier or outrageous conduct of the Defendant. They can extend to conduct subsequent to the conduct which gives rise to the claim. See Conway v INTO 1991 2 I.R. 305. Having regard to the evidence adduced on the application for a certificate pursuant to the Criminal Procedure Act 1993 section 9(1) it is fair to say that the Plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Siochana. However the Court must be diligent to ensure that there is no element of double compensation. The award of general damages by analogy to the common law in relation to those causes of action which the Defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading.
As to exemplary damages I adopt from the Law Reform Commission Report on Aggravated Exemplary and Restitutionary Damages a passage at paragraph 1.01 –
“The aim of exemplary damages is twofold: to punish the Defendant and to deter both the Defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words “to teach a wrongdoer that tort does not pay”. An exemplary damages award may also be intended to vindicate the rights of the Plaintiff or as Lord Devlin stated in Rookes v Barnard to vindicate the strength of the law. It has the additional, incidental effect of providing compensation and satisfaction to the Plaintiff. In the context of the Constitution the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the Defendant’s disregard of them and to deter their breach.”
While an argument exists as to the rationality of awarding exemplary damages where liability is vicarious the Supreme Court had no difficulty in making such an award in McIntyre v Lewis & Others 1991 1 IR 121: in respect of a claim for assault, false imprisonment and malicious prosecution against Gardai and the State the Plaintiff was awarded compensatory damages of IR£5,000 and exemplary damages of IR£20,000. However the Court must also be conscious that it does not award double compensation here. In the circumstances of this case there was an outrageous abuse of power by the Garda Officers involved. Evidence was planted. Perjured evidence was relied upon. It had not been expected by them that the Plaintiff would be sent to prison but when he was they took no step to remedy the situation. I propose to mark this conduct. I am satisfied that the circumstances of this case fully justify an award of substantial exemplary damages. However again I must be conscious of the risk of awarding double compensation. I propose to award the Plaintiff under this heading the sum of €50,000.
The Award of Damages
General Damages at common law €5,000
General Damages under Criminal Procedure Act 1993
Section 9(2) €500,000
Exemplary Damages €50,000
Special Damages under Criminal Procedure Act 1993
Section 9(1)
Legal Fees €12,650
Loss of the Point Inn and the caravan park €806,221
Loss of net of tax profits at the Point Inn €550,000
_________
Total: €1,923,871
Approved: Finnegan P.
Shortt v An Garda Síochána (SC)
[2007] I.E.S.C. 9 JUDGMENT of Murray C.J. delivered on the 21st day of March, 2007
The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two Garda officers, namely a Superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured Garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “[T]he plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána.”
Driven by the injustice of his situation he finally obtained an Order setting aside his conviction by the Court of Criminal Appeal in November 1992 when the D.P.P., for reasons that were never disclosed to that Court, consented to such an Order. Finally in July 2002 the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. In proceedings subsequently initiated before the High Court he was awarded damages for the wrongs which he has suffered. He has appealed against the award of damages made by the High Court on the grounds that those damages are inadequate. The sole issue in this appeal therefore concerns the amount of compensatory damages and exemplary or punitive damages to which he is entitled.
Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but reflect negatively on the Garda Síochána.
However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.
Its members, as over 80 years of history records, have served the community with dedication and often with great bravery at the risk of or actual loss of life. Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.
There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces’ direct community projects.
As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda Síochána has obtained and retains to this day the general support and respect of the community at large.
Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force.
One cannot but be aware of reports of the evidence placed before and being enquired into by the Morris Tribunal in relation to Garda conduct and operations in Co. Donegal. Neither that evidence, nor any interim findings of the Tribunal, are before us but the facts and circumstances of this case emanate from that county and involve specific individuals who were serving members of An Garda Síochána at the relevant time.
The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.
This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed. The force is replete with dedicated and highly professional members. There is no suggestion in these proceedings that the traditional respect for the authority of An Garda Síochána generally, so important to the community at large, should be set aside.
However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official Garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise such questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other Garda members, displayed a worrying confidence on their part that they could get away with it.
These are not matters with which this Court are directly concerned in these proceedings although the gravity of the abuse of power involved is a material factor in determining any question relating to exemplary or punitive damages.
Ambit of the plaintiff’s claim as set out in his Statement of Claim
The ambit of the plaintiff’s claim for damages as set out in his Statement of Claim, although these were presented in a more focused form at the hearing before the High Court, were as follows:
“1. Damages pursuant to the provisions of s. 9 of the Criminal Procedure Act, 1993, as certified by the Court of Criminal Appeal in its judgment of the 31st July, 2002.
2. Damages for breach of the plaintiff’s constitutional rights including, but not confined to the rights of the plaintiff pursuant to Article 40.3 and Article 41 of Bunreacht na hÉireann.
3. Damages for conspiracy.
4. Damages for negligence and breach of duty.
5. Damages for malicious prosecution.
6. Damages for false imprisonment.
7. Damage for loss of reputation including, but not confined to, damages for libel and slander.
8. Damages for deliberate and conscious abuse of statutory powers.
9. In respect of each claim for damages at (1), (2), (7) above, aggravated and / or exemplary damages.
10. Interest pursuant to statute.
11. Costs.”
Damages awarded in the High Court
At the conclusion of his judgment the learned High Court Judge awarded the appellant the following damages:
“1. General damages of common law: €5,000.00
2. General damages under
Criminal Procedure Act, 1993 s. 9(2): €500,000.00
3. Exemplary damages: €50,000.00
4. Special damages under
Criminal Procedure Act, 1993 s. 9(1): Legal Fees €12,650.00
5. Loss of the Point Inn and the Caravan Park: €806,221.00
6. Loss of nett of tax profits at the Point Inn: €550,000.00
Total €1,923,871.00”
The appellant has appealed each of the heads of damage awarded by the learned High Court Judge, other than that awarded for legal fees, on the ground, inter alia, that they were inadequate. The appellant, in his Notice of Appeal, also put in issue the findings that the conduct of the Gardaí in relation to attendances at the appellant’s premises, the setting up of roadblocks in the area of his premises in 1992 and the operation carried out by the Gardaí at his premises on 3rd August, 1992 did not constitute an abuse of powers.
Early background facts – The plaintiff and the Point Inn
First of all I think it should be emphasised that in these proceedings the State has not suggested that there are any grounds whatsoever for impugning Mr. Shortt’s essential good character or his standing as a citizen of this country. He had, in the past, been in breach of the licensing laws in serving alcohol after hours but there was no suggestion that he had ever been involved in serious criminal activity, let alone been involved with the sale of drugs on his premises. On the contrary his evidence that he cooperated freely with the Gardaí with a view to detecting any illegal use or dealing in drugs was not challenged.
Neither has the State contested the facts relating to the procurement of his conviction, its subsequent quashing and the consequences for the plaintiff personally, other than certain financial consequences.
The plaintiff was born in 1935. He is a chartered accountant by profession and in his early professional career was associated with Kennedy Crowley & Co., subsequently Stokes Kennedy Crowley, Chartered Accountants. He married in 1967. There are five surviving children of the marriage, one young son having died in a tragic accident. Following his marriage he went to Canada where he worked, inter alia, for well-established firms of chartered accountants. He returned to Ireland in December 1970. On his return he became involved in running, in conjunction with a brother Louis, a licensed premises known as the Point Inn, Quigley’s Point, Co. Donegal. The Point Inn had been owned by his great-grandfather, his grandfather and then his father. His brother died in 1991 and for a while he was not involved in running the business but eventually, at the end of 1991, he and his wife became full owners of the Inn. At that time in 1991 the business of the Inn had run down and was not trading well. He closed the premises and with the aid of a mortgage of £50,000.00 on his family home it was re-equipped, renovated and re-opened in April 1992. While the bar operated every night a discotheque / cabaret operated one night per week. The vast majority of the clientele came from across the border. Across the road from the Point Inn was an eight acre site and in 1989 the plaintiff sought and obtained planning permission for a caravan park.
The nightclub aspect of the business was for a short period conducted under the style “The Dungeon” and by May 1992 had changed its name to “Rave in the Cave”. From the opening of the newly revamped nightclub aspect of the business in April 1992 difficulties arose between the plaintiff and the local Gardaí.
In summary these difficulties commenced on the opening night when the nightclub was visited by Sergeant John McPhillips who, on leaving the premises told the plaintiff, in the hearing of patrons, “get your house in order”. The plaintiff failed to receive an explanation for this statement. (But as the learned trial Judge found, it may have been a reference to the fact that there had been several breaches of the laws on opening hours by the plaintiff.) He raised this matter subsequently at a meeting with Superintendent Kenny, the Garda officer in charge of the district, who agreed to look into the events of the opening night. At that stage no mention of illegal drugs was made. However on subsequent weekends in May and June the nightclub was the subject of a visitation by Sergeant McPhillips with, on most occasions, seven or eight Gardaí. There was also evidence of a Garda checkpoint being set up approximately one mile from the Point Inn for the purpose of checking people who might be going there. The occupants of cars were asked if they were going to the Point Inn and if they said so their cars were searched. Following complaints and representations by the plaintiff to the Superintendent a meeting took place between them in the earlier part of June 1992 at which it was agreed that undercover Gardaí would attend at the premises to address the possibility of illicit use or dealing in drugs there. Apparently this took place regularly until early August. In the meantime, then Inspector Lennon, later to become Superintendent Lennon, one of the chief figures in this case, attended the premises of the plaintiff on 21st June and spoke to him about the possibility of illegal drugs being on the premises.
On the night of 3rd August, the August Bank Holiday weekend, the Gardaí raided the nightclub at about 12:30 a.m. in the morning. The plaintiff first of all observed a group of men wearing helmets and visors running out of the car park towards the main entrance of the nightclub. He then observed that they were Gardaí. The plaintiff was knocked out of the way by the first Garda. There were about 60 Garda in all. Most were wearing helmets with their visors down and carrying flash lamps. Other Gardaí broke into two emergency exits with sledgehammers. Patrons were manhandled, and some male patrons were searched and had their pants pulled down. All of this lasted an hour. Some 10 or 12 patrons were arrested but it transpired that none were subsequently charged with any offence. The plaintiff made a complaint to Superintendent Kenny following this incident which was reported at that time in the Derry Journal. Following this incident undercover Gardaí continued to attend the premises.
In September 1992 the annual sitting of the District Court for the licensing of licensed premises took place and during September the plaintiff received notification from the Gardaí of their intention to object to the renewal of his liquor license, dancing license and restaurant certificate.
Shortly after that he was served with 32 summonses containing charges which alleged that the plaintiff had knowingly allowed the dealing of drugs on his premises on various specified dates.
On 18th September, 1992, following objection from the Gardaí, the District Court refused to renew the licenses in question. The plaintiff appealed to the Circuit Court and continued trading pending the appeal. The appeal to the Circuit Court was later adjourned from time to time pending the outcome of the criminal prosecutions.
From charge to trial
For the purpose of assessing damages pursuant to s. 9 of the Act of 1993 the High Court deemed the 1st October, 1992 to be the date on which the plaintiff was charged with criminal offences.
In February 1993 Gardaí, numbering between 80 and 100, raided the plaintiff’s premises in a similar fashion to the earlier substantial raid. It lasted about 1½ hours. There were a number of arrests and some tablets were found. Again on that occasion doors were broken in. The plaintiff complained to the Minister for Justice and the Garda Complaints Board arising from this raid. He felt his premises were being unfairly targeted and that the operation was out of proportion to any perceived problem.
In or about this time a threat was made on the plaintiff’s life by the IRA and he closed the premises on 8th September, 1993. He opened the premises during the Christmas period and the threat was repeated in early January 1994 and the premises closed again. In evidence before the High Court the plaintiff expressed his belief that the threats arose as a result of the adverse publicity following the Garda raids. The premises reopened in April 1994 and throughout the summer of 1994 there were regular Garda roadblocks in the vicinity of the premises.
On 30th September, 1994 the third major Garda raid occurred with this time with well over 100 Gardaí participating. The raid was conducted in a manner similar to the two previous major raids. Doors, tables and other items on the premises were damaged. A number of arrests were made and searches were conducted in the car park.
Having appeared before the District Court on a number of occasions in February 1993 the plaintiff elected for trial in the Circuit Court before a Judge and jury. On the application of the D.P.P. the plaintiff’s trial was transferred to Dublin.
The first trial commenced in late October 1994 but was aborted due to prejudicial reporting in the newspapers.
The plaintiff gave evidence of having suffered a great deal of stress at the time both because of the offensive nature of the publicity, its damage to his business as well as the fact that the first trial was aborted.
In July 1994 the plaintiff found he was unable to insure the Point Inn premises. Furthermore, he was under risk of losing his license for the premises. He placed the Point Inn on the market at the asking price of £500,000.00. No sale was concluded and the plaintiff believed this to be due to prospective purchases awaiting the outcome of the trial in the belief that the premises could be obtained at a lesser price if he should be convicted.
The trial
The plaintiff’s trial on criminal charges commenced in February 1995 and lasted eight days.
He was convicted and sentenced to three years imprisonment and fined £10,000.00.
He was to serve 27 months in prison.
Before referring to the course of events subsequent to the plaintiff’s conviction and those which ultimately led to that conviction being quashed I think it is convenient to set out here the factors which tainted his trial and led to a perversion of the course of justice.
These factors consisted mainly of conspiracy to provide false evidence and perjury at the trial.
The case for the prosecution was set out in the Statements of Witnesses for the Prosecution contained in what is known as the Book of Evidence.
The prosecution’s case contained fundamental weaknesses which were identified by counsel for the D.P.P. in an advice on proofs furnished to the Chief State Solicitor in advance of the trial. This advice on proofs was furnished to Detective Garda McMahon and Superintendent Lennon. I think it is sufficient for present purposes to refer to the principal deficiency in the evidence identified by counsel namely the absence of any evidence, specifically in the statement of Detective Garda McMahon, that the accused, Mr. Shortt, saw and permitted illicit transactions of drugs on the premises. This would have been a key element in any case against Mr. Shortt and was so identified by counsel for the D.P.P. Detective Garda McMahon was the primary witness for the prosecution with regard to the alleged drug dealing on the Point Inn premises.
This identified weakness in the case for the prosecution was the genesis of the conspiracy and perjury which was to follow in the lead up to and at the trial.
Full details of the nature and context of all these events are set out in the judgment of the Court of Criminal Appeal in Shortt –v- D.P.P. delivered by Hardiman J. on 31st July, 2002. The terms of that judgment were relied upon by the plaintiff in these proceedings without objection by the State.
In general terms what occurred was that Superintendent Lennon, who had been in charge of operations in relation to the plaintiff and the Point Inn, and Detective Garda McMahon, with a view to filling the lacuna in the prosecution case, set about preparing a second witness statement which would be served on Mr. Shortt before his trial as notice of additional evidence which Detective Garda McMahon would give at the trial. A number of meetings took place between Superintendent Lennon and Detective Garda McMahon with regard to the preparation and concoction of this second statement both in the former’s office and, on one occasion, in Detective Garda McMahon’s home where a version of the statement was actually typed up. A first version of the second statement which had been drawn up by Detective Garda McMahon did not, in the eyes of Superintendent Lennon, go far enough. As a result of proposals made by Superintendent Lennon the Detective Garda duly included further additions to the second statement which purported to say, inter alia, that certain illicit drug transactions which he saw taking place in the Point Inn also occurred within the view of or within “eyeshot” of the plaintiff. This additional evidence was intended to copper-fasten the case against Mr. Shortt.
In the event, Detective Garda McMahon gave such evidence at the trial. As the Judge at that trial told the jury Detective Garda McMahon’s evidence was the key evidence for the prosecution. At the trial Detective Garda McMahon was strongly cross-examined on this evidence, as well as other evidence. For the purpose of giving evidence he had recourse to his notes which he stated at the trial were contemporaneous notes. He also gave evidence that the second statement was drawn up from his actual recollection of what took place at the time.
We now know that to be false evidence as found by the Court of Criminal Appeal. He also deliberately concealed from the Judge and jury and the defence at the trial, by way of false evidence, the original notes concerning his visits to the plaintiff’s premises and all notes and documentary material relating to the drawing up of the second statement all of which emerged much later and were before the Court of Criminal Appeal. These latter included notes annotated by Superintendent Lennon with a view to the concoction of further evidence that Detective Garda McMahon would give at the trial. The Court of Criminal Appeal concluded that this principal part of the additional evidence of Detective Garda McMahon was false and untrue. It also concluded that both he and Superintendent Lennon concealed this at the hearing before the Court of Criminal Appeal.
What occurred can only be characterised as a conspiracy between the two Garda officers to defeat the ends of justice in which they both stood over perjured evidence given at the trial.
Much later in the aftermath of the trial these circumstances were to give rise to tensions, recriminations and bitterness between Superintendent Lennon and Detective Garda McMahon.
Superintendent Lennon exploited the dubious success of his operations and conviction by putting himself forward and obtaining a Garda award for his professionalism. With this in turn he sought and obtained public acclamation through the media.
Bitter at Superintendent Lennon getting exclusive credit when he had to do the nasty work Detective Garda McMahon was to tell his wife that he committed perjury when giving evidence at Frank Shortt’s trial, as Mrs. McMahon stated in her evidence which was accepted by the Court of Criminal Appeal. She had previously told this to the Garda investigation but a note of her account appears to have been lost sight of until it emerged in the course of that hearing before the Court of Criminal Appeal.
Another bizarre twist in the aftermath of this trial was some four years later when as a result of tensions between the former conspirators a “letter of satisfaction”, as it was described in the Court of Criminal Appeal, came into existence, one particular draft of which was drafted by Superintendent Lennon himself. This was a proposed letter that Detective Garda McMahon was to write to Superintendent Lennon the substance of which was to declare that he, Detective Garda McMahon, had no information prejudicial to the career of Superintendent Lennon and that he had never known the Superintendent to act unlawfully in the course of any Garda operation. The Court of Criminal Appeal described this letter as evidence of an awareness on the part of Superintendent Lennon that his actions in the procurement of the additional statement were unlawful and if revealed would gravely damage his career.
I mention these latter matters in order to recall how both Superintendent Lennon and Detective Garda McMahon were determined in their persistence post-trial to cover up and conceal any perjury which took place at the trial itself and this was continued up to and including the hearing before the Court of Criminal Appeal.
The victim of the machinations was of course Mr. Shortt himself who had to suffer through them in the knowledge that the evidence in question was false.
Immediate aftermath of the trial
At the conclusion of the trial the plaintiff was convicted on 13 counts and sentenced to three years imprisonment on each count, to run concurrently and fined a sum of £10,000.00. His first appeal to the Court of Criminal Appeal against conviction and sentence was unsuccessful except for the removal of the fine. He served 27 months in prison.
There were still a number of summonses outstanding against the plaintiff and he was brought back to Court from prison on a number of occasions in connection with these summonses but in the end prosecutions were never proceeded with. Nonetheless he had been returned for trial on the other charges and the prosecution for them was hanging over him for a considerable period of time.
This appeal on the issue of damages is of course based on the findings of fact in the High Court.
I think it is necessary to set out in this judgment, as regards the matters which arose after the conviction, those facts, as recounted in the evidence of the plaintiff, which the learned trial Judge accepted.
First of all there is the immediate incarceration of the plaintiff in the aftermath of his conviction:
“Following his conviction the Plaintiff was handcuffed in court and taken down. The trial and conviction received widespread publicity. He was photographed being taken away from court. He was taken to Mountjoy Prison. At Mountjoy Prison he was required to strip and shower and was given prison garb comprising denim pants and a denim shirt which were too big for him. He was placed in a cell with two other prisoners shortly to be joined by two other prisoners. He felt threatened by the presence of the other prisoners who were in their twenties the Plaintiff himself then being sixty years of age. For the second night and the following twelve weeks he had a cell to himself. This cell was in the old prison and measured 10’ x 7’. It was in disrepair. It had one window high up. The floor was of lino badly burnt and unclean. His bed had a thin horse hair mattress. There was a stench. The cell was infested with mice and cockroaches. There were no washing or toilet facilities. The toilet was a small aluminium soup pot. He was confined to the cell for seventeen hours each day. He had to slop out each day in the toilet area the floor of which was generally covered with urine, excreta and vomit. He was allowed out of the cell to collect his meals which he then took back to the cell to consume. Apart from taking air in the exercise yard in the morning and afternoon he read in his cell. He found it difficult to cope with his loss of freedom. On a number of occasions he was taken back to the Four Courts in relation to outstanding summonses. On these occasions he was placed in a holding cell with some twenty other prisoners which cell was in a deplorable condition.”
Subsequent period in prison
“While in prison the Plaintiff suffered from illness. In the gym he damaged his arm and shoulders and was prescribed pain killers. These had a severe effect on his stomach. There was a gradual increase in the pain in his neck and shoulders and he continued to suffer from stomach problems with cramps and vomiting and sleep disturbance. This continued for some seven months before he was sent to the Mater Hospital. The neck and shoulder symptoms were diagnosed as related to his work in the gym. He was treated with injections of cortisone. About this time he applied for temporary release to attend the baptism of his grandchild but was refused. He sought temporary release to attend his daughter’s 13th birthday party on the 23rd August 1995 but was again refused. From the first day he entered into Mountjoy he developed depression and was consistently depressed for most of the first two months. Thereafter his depression was intermittent. He was treated by prescribed medication. He was given tablets to help him sleep but after time was able to dispense with these. In prison he also suffered from vertigo and high blood pressure. He practised meditation twenty minutes each morning and each night to help him cope with his situation and this gave him relief.
While in prison he saw a television programme “Drugs in Donegal” in which Superintendent Kevin Lennon appeared in front of the ruins of the Point Inn and stated that the proprietor was then currently serving a term of imprisonment in relation to illegal drugs. This upset him greatly. Also there were several violent incidents in the prison which upset him greatly.”
The plaintiff’s wife also gave evidence concerning the effect of imprisonment on him. As the learned trial Judge recorded when she first visited the plaintiff in prison he looked completely different and “was shocked and looked terrible and was angry and upset”. When she visited him in prison subsequently she saw his condition deteriorate to the point “where he was an old man and like a zombie. She did not think he would survive his prison term. When released from prison the plaintiff was in good form but later on went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was a disability allowance”.
The question of dropping his appeal
“In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some 2½ stone in weight which he attributed to stress, anxiety and depression.”
This is but one of the particularly nefarious aspects of this case. The prospect of early release was dangled in front of the plaintiff when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of the case by pressuring the plaintiff to accept the finding of guilt in return for a sort of “deal”. Formally at least, only the D.P.P. could withdraw the outstanding charges. Understandably the legal advisors of the plaintiff advised him of the advantages of going ahead with such a deal. Attractive as it may have seemed, the plaintiff made what was for him an emotionally charged decision to maintain his appeal and reject the approach in order to vindicate his innocence. Who was involved in making this offer of a “deal” to the plaintiff and how the fulfilment of a promise to drop outstanding charges and ensure early release could have been achieved was never explored or explained in the evidence.
Temporary release and family life
“His first fourteen applications for temporary release were refused. Christmas was a particularly depressing period and he greatly missed his family. He was allowed weekly visits from his wife but following each visit he would sink into a state of depression and so he asked her to cut down on the number of visits. He had a concern that his situation was affecting his children. He had school reports in respect of his son Christian that he was cheeky and a negative influence on other students and on Ezeriah that he was unsettled and careless in concentration. They were having fights as a result of other children calling the Plaintiff a drug dealer. At this time Christian was 14 and Ezeriah 12 years of age.”
While the plaintiff was in prison the evidence was that his wife continued to run the Point Inn until it had to be closed down permanently after it had been set on fire. It was effectively common case that the fire had been caused by subversive elements in reaction to the adverse publicity given to the plaintiff by reason of his alleged drug dealings. The plaintiff’s wife had a prisoners’ wife’s allowance and to provide an income she took work as a nurse doing night duty. She also gave evidence that the great relationship with the plaintiff had prior to his imprisonment with the children never really recovered after his release.
Unsuccessful appeal and continued imprisonment
“The Plaintiff’s appeal against conviction and sentence was heard on the 13th May 1996 and Judgment was reserved. The Plaintiff was optimistic about the outcome. Judgment was delivered late in July of that year and the conviction was affirmed and the only benefit to the Plaintiff was that he was relieved of the monetary penalty.
Having spent twelve weeks in the cell which I have previously described the Plaintiff was moved to the Training Unit in Mountjoy and remained there subject to one interruption until the first week of January 1997 when he was transferred to Castlerea Prison where he finished his sentence on the 14th May 1997 and was released. The interruption related to a period of twelve weeks when he was transferred back to the main prison for disciplinary reasons. In the Training Unit he had a cell of his own. The cell was quite new and comfortable. The building was new. He had wash up facilities but not a toilet. If he wished to go to the toilet he pressed a bell and was normally let out. The officers were more civil than in the main prison except for one officer who was a bully and gave him “a lot of grief”. Dining was in the dining hall. If he wished he could take the food back to his cell. He undertook two courses one in creative writing and one in computers. While the leaflet which he was given about courses promised remission if a prisoner applied himself he received no remission. He did however receive temporary release for four days at his second Christmas and shortly thereafter was transferred to Castlerea which was described as an open prison. The prison itself was surrounded by a high wall but it was open in the sense that the prisoners lived in newly constructed detached houses and conditions were much better than in Mountjoy. There were no educational facilities there and no library. He spent his time walking in a circle around the yard.”
Medical problems and release
“In March 1997 he had further medical problems related to high blood pressure and developed vertigo. He had a heart problem before he went to prison but this deteriorated while in Castlerea. On examination it was found that his heart was missing every seventh beat. His consultant attributed this to stress. While in Castlerea Prison the Plaintiff got temporary release every weekend. On one weekend however he suffered a back injury and was unable to return. A medical certificate was sent to the prison. However the Gardaí arrived at his house and checked that he was in bed. He returned to prison four days late on a walking stick. As a result of this incident his release date which was scheduled for May 2nd 1997 was cancelled. In fact he was released some two weeks later which was two weeks earlier than his actual release date.”
Post-release experiences
“On release from prison the Plaintiff found himself practically bankrupt without a job or business. He had received nothing out of the receivership. He was at risk of being struck off by his Institute [The Institute of Chartered Accountants]. He was now almost 63 years of age and he was depressed and angry at what had occurred to him and his family and in despair. He applied for and was given disability benefit on the basis of his back. He was treated with anti depressant medication. He was obsessed with establishing that he was not guilty and with clearing his name. Within his own community he felt ostracised. He was viewed like a pariah. He attended Mass and Holy Communion every Sunday but felt he was being cold shouldered by the congregation and stopped going to the church. He did not socialise. His relationship with his children had been damaged and they were no longer there for him as in the past.
After his release he set about a malicious injury claim in respect of the destruction of the Point Inn. For this purpose a certificate is required from the Chief Superintendent of the Gardaí and he had very considerable difficulty getting this. Some three years following his release passed before the certificate came to hand. The claim was defended by Donegal County Council in that they relied on the Malicious Injury Act 1981 section 12 to reduce or exclude compensation upon the basis that the Point Inn had been used for illegal purposes as evidenced by the Plaintiff’s conviction for knowingly allowing the sale, supply, distribution and possession of controlled drugs on the premises and further that there may have been a direct connection between the use of the premises for illegal purposes and the attack thereon which caused the damage. This added to his sufferings and concerns. The plea was only withdrawn on the date of the hearing after his conviction had been set aside. This compounded the delay by the Garda authorities in issuing the necessary certificate which did not issue for two years and nine months following application for the same.”
Application to the Court of Criminal Appeal pursuant to the Criminal Procedure Act, 1993
In November 2000 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act, 1993 was heard and there being no objection from the D.P.P. his conviction was quashed.
In May 2002 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 1(9), regarding a miscarriage of justice, was heard by the Court of Criminal Appeal. The decision certifying that there had been a miscarriage of justice was delivered in July 2002. During all this period the plaintiff was suffering from severe stress and anxiety.
Circumstances following the setting aside of the conviction and the grant of a Certificate of Miscarriage of Justice
Following the setting aside of his conviction and the granting of the certificate by the Court of Criminal Appeal the learned trial Judge noted that the attitude of the majority of the community in the plaintiff’s locality towards the plaintiff had improved but not of all the community. He went on to record:
“He now mixes very little with that community. He has returned to Mass. He is still not working. The main reason for this is that he continues to have trouble with his back and also has had to spend a very considerable amount of time assisting his legal team for the present case. Having regard to his age it would be difficult to get a job. He remains angry at what has happened to him. Prior to the events giving rise to this claim the Plaintiff had a drink problem. In 1988 he was admitted to the Rutland Clinic after which he did not drink until May 1993 when he resumed drinking as a result of the actions of the Garda Síochána. Thereafter he continued to drink on and off until early in 2005. He is not drinking at the moment and had not had a drink for some six months. However in the course of this hearing he lapsed. The Plaintiff no longer suffers from vertigo or with his blood pressure. He still suffers with his heart and with his back.
A book of medical reports was put in evidence. It is sufficient for present purposes if I record the opinion of Professor Brian Lawlor, Consultant Psychiatrist following an assessment of the Plaintiff on the 15th September 2004 –
“Although Mr. Shortt has a normal mental state examination at present he has experienced significant emotional distress and two episodes of depression related to events surrounding his dramatic experiences of imprisonment and miscarriage of justice. The prognosis for his depressive episode should be relatively good with resolution of the underlying triggering events. There are ongoing feelings of anger and frustration regarding his experiences and he may benefit from supportive psychotherapy in this regard. The prognosis for his alcohol abuse is reasonably favourable as well as long as he maintains his aftercare programme. Once again resolution of the ongoing stressor should have a positive effect in this regard.”
In a report from the Plaintiff’s general practitioner, Dr. Daniel McGinley it is reported that the Plaintiff was having significant difficulties in acclimatising back to his home/family situation. There were relationship difficulties when he was released home. He found the situation stressful. No medication was prescribed in relation to this. On the 9th September 1997 the Plaintiff was prescribed anti depressant medication for depression and this was repeated on 15th October 1997 and in November 1997.”
The assessment of damages
As was pointed out on behalf of the plaintiff in the course of this appeal the principal basis of his claim is under s. 9 of the Criminal Procedure Act, 1993. The relevant parts of that section are as follows:
“(1) Where a person has been convicted of an offence and either …
(a) (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice, …
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person … unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.”
I think it is important to note at this point, that there was a substantial degree of agreement arrived at between the parties and approved of by the learned High Court Judge as to the approach to be adopted in respect of this claim under s. 9(2).
In his judgment the learned High Court Judge noted:
“As the parties are in agreement that I should assess damages pursuant to s. 9(2) of the Act in respect of the period commencing on the date on which the plaintiff was charged I propose to do this. I propose, as agreed between the parties, to adopt the approach in The Independent Assessor –v- O’Brien & Ors and make a single award of damages rather than to break the same down into a number of discreet heads of award in respect of various headings of claim which could be maintained at common law. Thus the plaintiff claims damages pursuant to the provisions of s. 9 of the Criminal Procedure Act, 1993 and I propose to make an award of damages on that basis insofar as the events in respect of which claim is made occurred after the plaintiff was charged. The plaintiff claims further or in the alternative damages for breach of constitutional rights, for conspiracy, for negligence and breach of duty, for malicious prosecution, for false imprisonment, for loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory powers. I do not propose to make awards under any of those headings in respect of anything which occurred after the plaintiff was charged notwithstanding that that evidence would entitle a claim on all or any of such basis to succeed in the alternative to the claim under s. 9. I will however have regard by analogy to the common law in relation to such claims insofar as the plaintiff claims damages and aggravated and / or exemplary damages in respect of his claim under s. 9. I adopt this approach upon the basis that the parties are in agreement that I should do so. … I propose adopting as the date of charge the 1st October, 1992.”
No issue has been raised in this appeal concerning the learned High Court Judge’s general approach as outlined above. The case referred to above by the learned High Court Judge, and relied upon by both parties, is an English decision in relation to the application of somewhat corresponding legislation in the United Kingdom. I do not consider it necessary to consider the English legislation or the decision interpreting it since the approach adopted by the learned High Court Judge, with the agreement of the parties, is consistent in my view with the terms of s. 9 as well as a logical and effective means of assessing damages where the facts and circumstances relating to the various potential heads of claim, within and without the ambit of the section, are inextricably interwoven. The issues in this appeal of course turn on the manner in which the learned High Court Judge assessed the damages in the course of that general approach rather than the approach itself.
It should however not be overlooked that s. 9 of the Act of 1993 provides, inter alia, for the institution of an action for damages arising out of the quashing of a conviction where the appropriate Court has certified, as has occurred in this case, that a newly discovered fact shows that there has been a miscarriage of justice. It is intended to provide a remedy where it was understood that no remedy existed. Thus it is entirely conceivable that a claim for compensation under s. 9 could arise where there is no other actionable wrong against the State or any other person there being no culpability or blameworthiness on their part. Thus a claim can arise, inter alia, where a conviction was quashed because of the existence of “a fact the significance of which was not appreciated by the convicted person or his advisers during the trial”. I do not think it is necessary to hypothesise by way of example since it is self-evident that such circumstances, and indeed other circumstances envisaged by the section, could arise without actionable culpability on the part of any other person. Thus it is far from the case that every claim brought pursuant to s. 9 would attract aggravated or exemplary damages.
I mention this to emphasise, although it hardly needs emphasis, that there are especially grave features of this case which give rise to the level of damages which I feel it is appropriate to award. In this case the actual or potential other causes of action which the appellant could have pursued for malicious prosecution, unlawful conspiracy and so on became amalgamated in the elements which the High Court took into account when awarding compensatory damages pursuant to s. 9 of the Act of 1993. As the trial Judge himself acknowledged there were “several torts comprised in the claim”.
These special features, which in turn have particular relevance to the quantum of aggravated and exemplary damages, included the malice and dishonesty of the Garda members involved including their concealment of evidence, the abuse of power, conduct calculated to undermine a fair trial, the cruel treatment of the appellant when imprisoned concerning compassionate leave, the physical and psychological effects of imprisonment which were exacerbated by the belief, which was correct, that his conviction and imprisonment had not been brought about by some dreadful error or mistake but by the male fide machinations of the Garda members involved. Coupled with the foregoing, the consequences included degradation of his family circumstances, public degradation in the eyes of the community, at least some of which was engendered by deliberate exploitation of the case for the purposes of publicity and self-advancement by a Garda Officer. The whole course of events changed permanently the course of his life and at an age where, and in circumstances where, even on release or ultimate vindication, it could never return to its normal course to any serious extent. His professional life and standing as an accountant was jeopardised.
Principles applicable to the award of damages
As already pointed out the loss or injury suffered by the plaintiff in this case, physical, moral and financial, were all associated with grievous wrongdoing and male fides on the part of the servants of the State. In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway –v- Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case. I would add in passing, whether those principles would by analogy be applicable without qualification in a case of compensation pursuant to s. 9 for a miscarriage of justice where there was no other actionable wrong or culpability on the part of another person is not in issue. I do not suggest that it might be. It is just that the question does not arise, there being no serious issue between the parties (apart from one caveat on the part of the State to which I will refer subsequently) that those principles do apply in this case.
In Conway –v- INTO Finlay C.J. stated:
“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. I have purposely used the above phrase “punitive or exemplary damages” because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
I think it is convenient here to emphasise, as Finlay C.J. went on to point out, that exemplary damages and punitive damages are synonomous and that is the position in our law notwithstanding the decision of the High Court in Kennedy –v- Ireland [1987] I.R. 587. This was also the approach adopted by this Court in McIntyre –v- Lewis [1991] I.R. 121.
Compensatory damages
On the basis of the principles laid down in Conway –v- INTO (cited above) the two aspects of compensatory damages, general damages and aggravated damages arise for consideration in this case. In his judgment the learned trial Judge having acknowledged that aggravated damages represent, inter alia, a recognition of the cavalier or outrageous conduct of a defendant, went on to exclude the making of an award under the heading of aggravated damages essentially for the following reasons stated in his judgment:
“However the Court must be diligent to ensure that there is no element of double compensation. The award of general damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, heplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading.”
Undoubtedly the trial Judge was faced with a claim unprecedented in form and ambit, not governed by direct precedent, and he awarded a fairly substantial sum of €500,000.00 intended to reflect the loss and injury suffered by the plaintiff having regard to the inherently aggravating circumstances of the case.
As Finlay C.J. pointed out in the citation above, general damages, or ordinary compensatory damages are sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act. There may indeed be particular aspects of a wrong reflected in the level of ordinary compensatory damages which are closely connected or interwoven with other factors which could give rise to aggravated damages. It could be difficult for a jury or a trial Judge in awarding ordinary compensatory damages not to have regard to the fact that, for example, a deprivation of liberty had been carried out by Garda officers in abuse of the law or in a male fide manipulation of the due process of the law.
However, as the principles referred to make clear, ordinary compensation is designed to compensate the direct effects of the wrong on the person who suffered it.
On the other hand aggravated damages represent an augmentation of the ordinary compensatory damages by reason of the manner in which the wrong was committed, the conduct of the wrongdoer at the time and subsequent to the commission of the wrong or wrongs involved. Aggravated damages have also been described as constituting “… additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the tort is justifiably heightened by the manner in which or the motive for which the defendant did it.” (White, Irish Law of Damages Figure 1. p. 7; Butterworth (Ireland) Ltd. 1989).
In my view where there are clearly identifiable circumstances in a case of this nature which comprise the substantial aggravating factors referred to in the principles in Conway, allowing for the fact that the factors outlined there were not intended to be definitive, then compensation by way of aggravated damages must be included in the award.
A global figure for compensatory damages may well be appropriate where the circumstances of the case indicate that the factors giving rise to aggravated damages are relatively marginal to the substantive wrongs which entitle a plaintiff to ordinary compensatory damages.
Furthermore, in cases which warrant the award of aggravated damages and where the circumstances attenuant to the commission of the wrongs in cause are closely interwoven with the factors which give rise to such damages it may be appropriate to award a global figure for compensatory damages provided the award is expressly stated to include both ordinary and aggravated damages. In a court of trial at first instance it may well be preferable, in the circumstances of the case and in the discretion of the trial Judge, that the awards of ordinary compensatory damages and aggravated damages be separately identified under their respective heads. This would facilitate the review of such awards on appeal.
I think one must accept that in making these awards the distinction between serious elements of the wrong committed and aggravating factors may at times be a very fine one or indeed there may be an overlap. Thus, although ordinary compensatory damages and aggravated compensatory damages may be conceptually distinct it will often be difficult in practice to exclude overlapping elements in the assessment of ordinary compensatory damages to be paid to a plaintiff. The primary compensatory damages are the ordinary damages which may be increased by reason of the aggravating circumstances. For these reasons, and indeed as a matter of general principle, I agree with the submission by counsel for the State that where distinct amounts of damages are being awarded on the basis of both ordinary and aggravated damages the totality of any amounts attributed under these two headings should be considered with a view to ascertaining whether the total sum awarded represents fair compensation for the totality of the injury and loss suffered by the plaintiff. In Reddy –v- Bates [1984] ILRM 197 at 202, in a claim for personal injuries, loss and damage, this Court stated:
“… [I]n a case such as this, where damages are to be assessed under several headings, where the jury has added the various sums awarded and arrived at a total of damages, they should then consider this total sum, as should this Court and any appeal, for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances.”
Such an approach, by way of analogy, in cases of this nature should obviate the risk of double compensation without undermining the entitlement of a plaintiff to damages under both headings.
The quantum of compensatory damages
First of all I propose to address, in the light of the principles outlined above, the amount which should be awarded by way of compensatory damages to the plaintiff, for the wrongs to which he was subjected, from the date of charge up to the trial in the High Court and having regard to the broad approach, agreed in the High Court, that all such loss would be deemed to be dealt with pursuant to s. 9 of the Act of 1993 by way of compensatory damages.
The facts as found by the learned trial Judge as regards the deprivation of liberty suffered by the plaintiff, the physical and mental distress, anxiety and other harmful effects as a result of the wrongs done to him speak for themselves and do not warrant detailed repitition.
From the time he was first charged with the offences for which he was wrongly convicted up to the time when he was granted his certificate of a miscarriage of justice by the Court of Criminal Appeal the plaintiff lived through a nightmare of kafkaesque proportions which enveloped his entire existence. Everything he stood for, had strived for or aspired to seemed set at nought. It is a nightmare from which he is only relatively recently emerged but he will never escape the full consequences of this dreadful and traumatic period in his life.
While there have been other significant awards for such wrongs as malicious prosecution and wrongful arrest none that I am aware of could be taken as a precedent for this case because the scope and scale of the wrong and suffering to which the plaintiff was subjected in this case extend far beyond any such case that has previously come before the Courts. In the absence of precedent I can understand why the learned trial Judge would have regard to damages awarded in the more serious of defamation cases. However, given that the wrongs and their consequences, physically and morally, suffered by the plaintiff go far beyond, in depth and breadth, those which could be suffered as a result of even the most serious defamation I think this was too limited an approach. The plaintiff suffered loss of liberty with all the ignominy of being condemned as a criminal by the State. His stress and anxiety was exacerbated by the fact that he knew it was done on foot of perjured evidence. He was affectively taunted by the offer of a “deal” to drop his appeal, and thereby publicly acknowledge his guilt in exchange for the prospect of early release and return to his family. His wife and children were tainted and the quality of his family life perhaps permanently affected. Certainly his family life and his relationship with his family were seriously damaged when his children were in their early teens. He will never recover that period of loss and distress. On his release his life has been consumed with establishing his innocence and vindicating his rights.
Hopefully the final conclusion of these proceedings will vindicate his reputation but the whole series of events which he has undergone have permanently changed the course of his life over a period and at an age where, even with these proceedings behind him, it can hardly return to its normal course to any serious extent. I have no doubt, having regard to the evidence, that the horrible traumas of these events is something with which he will always have to live.
I consider it is manifest that the damages which he should be awarded by way of ordinary compensatory damages must be very substantial and in my view he is entitled to general damages far in excess of that awarded in the High Court.
Aggravated damages
In the light of the facts of the case I am also of the view he is entitled to very substantial aggravated damages having regard to the principles set out in Conway and the considerations to which I have referred to above.
I feel that the appropriate approach in this case is to make a global award that includes ordinary general damages and aggravated damages.
Furthermore, although the plaintiff will never be able to put behind him completely the consequences of what he has gone through, physically and emotionally, I do not consider that there should be a separate assessment of general damages for any ongoing consequences in the future. In a Court of trial separate heads of damages for past and future loss may be appropriate principally to facilitate the review of an award of damages in this Court on appeal. In the circumstances of this case and for the purpose of this appeal I am satisfied that any future aspect of the plaintiff’s damages can be taken into account in the overall award of compensatory damages.
Again the facts and circumstances as found by the learned High Court Judge speak for themselves. The aggravating elements are manifest. The manner in which the wrongs in question were committed against the plaintiff involved an arrogant and oppressive abuse of power by recourse to perjury so as to undermine the due process of the law. This is compounded by the outrageous attempt to close down the plaintiff’s continued challenge to his conviction at a time when he was vulnerable, physically and psychologically, by means the offer of a move to an open prison, early release and the dropping of outstanding charges, the full truth of which we do not know. The two Garda officers concerned persisted in the denial and cover-up of their conspiracy and perjury to the very end, resisting with further perjury, the plaintiff’s final application to the Court of Criminal Appeal. The apology from the State came late in the day before this Court in these proceedings and can in my view have little effect on mitigating damages. On the contrary nothing has emerged which suggested that the State, including the Garda Síochána, were in any way agitated about setting right the wrongs inflicted on the plaintiff, other than finally not contesting liability in these proceedings.
Every wrong and every stage of every wrong suffered by the plaintiff was compounded by aggravating factors. The core element of those factors was the concoction and giving of perjured evidence by the Garda officers. There was a callous self-serving disregard for the plight of the plaintiff, and his family, throughout.
I am therefore wholly satisfied that a very substantial element of the plaintiff’s compensatory damages should comprise a sum for aggravated damages for the outrageous and arrogant manner in which the wrongs were inflicted on him, insofar as money can do it.
In these circumstances I have come to the conclusion that the plaintiff should be awarded the sum of €2,250,000.00 by way of compensatory damages to include aggravated damages.
Exemplary damages
As Finlay C.J. in Conway –v- INTO stated exemplary or punitive damages “are intended to mark the Court’s particular disapproval of the defendants conduct … [and the Court’s] decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages …”.
In the same case McCarthy J. stated:
“The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such wrongdoing will not be tolerated and, more to the point, will not be relieved on payment of merely compensatory damages.”
McCarthy J. then went on to state:
“The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendants in deliberately interfering with the plaintiff’s rights have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also, by definition, a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages.”
I have no doubt that in this case the grounds for exemplary damages are compelling. Although the grounds of the plaintiff’s claims in this case were not laid as, or characterised as, breaches of constitutional rights per se, the conduct of the Garda officers involved set at nought core constitutional rights of the plaintiff to due process and a fair trial. However they are characterised he is entitled to such damages.
In McIntyre –v- Lewis [1991] 1 IR 121 at 134 Hederman J. stated:
“In cases like this, where there is an abuse of power by employees of the State the jury are entitled to award exemplary damages. One of the ways in which the rights of the citizen are vindicated, when subjected to oppressive conduct by the employees of the State, is by an award of exemplary damages.”
In the same case McCarthy J. observed:
“In my opinion, the damages appropriate to a case of this kind must reflect the proper indignation of the public at this conduct, whatever windfall it may prove for the plaintiff in the result.”
Exemplary damages are not compensatory. They are, in a sense, a windfall for the plaintiff. Exemplary damages serve several potential purposes including to mark the Court’s disapproval of outrageous conduct on the part of a defendant. In the case of a jury they may reflect the indignation of ordinary law abiding citizens at such conduct.
They are also punitive, as the dicta above state. They may financially punish a defendant as a deterrent to that defendant as well as a deterrent generally to the arrogant use or abuse of power. In their purely punitive dimension the means of a defendant may be relevant in order to ensure that the punishment is proportionate. However the purely punitive element of these damages is hardly relevant where the State is the defendant since no individual, let alone those persons who have actually committed the wrong, will bear responsibilty for paying any of the damages. The liability of the State to pay arises from its vicarious responsibility for its servants or agents and the payment of damages is made out of public funds.
This of course does not relieve the State from its liability for such damages (see for example McIntyre –v- Lewis cited above). The award of exemplary damages is, in the words of Finlay C.J. in Conway, “one of the most effective deterent powers which a civil court has: the award of exemplary or punitive damages.” It is a power which must be available to the Court where there is serious abuse of power by or on behalf of the State. Such an award against the State, in appropriate cases, marks the Court’s public disapproval of abuse of power so as to demonstrate that such wrongdoing will not be tolerated. Although in the form of a financial penalty it is in substance also a moral sanction, a mirror to “the proper indignation of the public”. Such damages remind the other organs of State that there is not only a duty to compensate a wronged citizen by way of monetary damages but to take all steps necessary designed to ensure, as far as practicable, that such deliberate abuse of power is not repeated but is prevented.
In awarding exemplary or punitive damages a Court is at large as to the amount which it considers appropriate to express its disapproval and therefore it must exercise any such power with restraint. The amount awarded should be no more than is necessitated to convey in this case, to the State, and the public at large, the level of its disapproval in the light of the gravity of the State’s conduct. In my view this can only be achieved in this case by making a separate and distinct award for exemplary damages.
In the Conway case Finlay C.J. also observed that exemplary damages, as a general principle, “should not be awarded if in the opinion of the Court the amount necessarily payable by the wrongdoer in the form of compensatory damages constituted a sufficient public disapproval of and punishment for the particular form of his wrongdoing.”
In McIntyre –v- Lewis (at 141) O’Flaherty J. stated:
“If the compensatory amount awarded includes aggravated damages then I believe if any award is made by way of exemplary damages it should properly be a fraction rather than a multiple of the amount awarded by way of compensatory damages (including aggravated damages).”
The statement of Finlay C.J. means that the Court has a wide discretion in determining the circumstances in which a separate award for exemplary damages ought or ought not to be made. The factor he refers to may have special, though not exclusive, relevance to a case in which the means of the defendant are pertinent. However, in this case I am quite satisfied that a substantial award of exemplary damages is necessary notwithstanding the level of compensatory damages that is being awarded. It is necessary in order to fully vindicate the rights of the plaintiff in the circumstances but also as a mark of disapproval of the calculated conduct of the servants of the State.
It is also worthy of note that the State altered their position on the issue of exemplary damages. They had argued in the High Court and initially in this Court that where substantial compensatory damages are awarded to a plaintiff any exemplary damages must be of a strictly limited amount since it would involve double compensation. In the course of this appeal they abandoned this approach accepting, quite properly, that exemplary damages are a distinct and separate concept from compensatory damages.
Because of the distinction and for the reasons already outlined exemplary damages cannot be characterised as involving double compensation. Such damages may in a sense constitute a windfall for the plaintiff by reason of the fact that they are not compensatory in nature. The Court’s discretion to award exemplary damages as necessitated by the circumstances of a case is not limited by any so-called risk of double compensation. Certainly, as Finlay C.J. pointed out and I have also acknowledged in this judgment, in certain circumstances the substantial level of compensatory damages may be a factor to be taken into account when the Court is exercising its discretion as to the exemplary damages necessitated by the need to mark its disapproval of the defendants conduct but the notion of double compensation has nothing to do with that.
The statement above of O’Flaherty J. was made in the context of a cautionary approach which he correctly felt the Courts should follow with regard to the award of exemplary damages. However I do not agree that the discretion of the Court in awarding exemplary damages in a case where it otherwise feels it proper to do so should invariably be constrained by a rule that they be a fraction of the compensatory, including aggravated, damages awarded. The discretion of a Court to award exemplary damages in the vindication of rights and as a mark of its disapproval of the conduct of a defendant, should not be constrained in that manner but exercised according to the circumstances of each case even if in many cases the appropriate award of exemplary damages might well be a fraction of the overall compensatory damages.
While generally speaking there was no issue as to the principles to be applied in determining the damages to be awarded to the plaintiff, counsel for the State in this appeal at one point submitted that where outrageous conduct for which exemplary or punitive damges may be awarded is conduct for which the State is only vicariously liable the level of exemplary damages payable by the State should be mitigated or restricted by reason of the vicarious nature of the liability.
It was a somewhat tentative submission or at least not one pursued with great vigour. In any event I do not think it is an argument that requires great scrutiny. As McCarthy J. also said in McIntyre –v- Lewis (cited above), in the context of an award of punitive damages, “If the liability to damages be vicarious, as the employer of the primary tortfeasor, then the liability is for the entire of the damages.” Moreover, the State acts through its servants or agents and its responsibility is only engaged when wrongs are committed by its servants or agents. If counsel’s proposition was correct the Court would be circumscribed in its jurisdiction to award exemplary or punitive damages appropriate for deliberate and outrageous abuse of public powers by servants of the State. The power of the Court to make an award for exemplary or punitive damages was clearly set out in Conway –v- INTO. The statement of McCarthy J. is patently correct. There is no basis in law for limit the liability of the State to pay exemplary damages by reason of the vicarious nature of its liability. To do so would be absurd and contrary to the well-established principles and purpose of such damages. Indeed in exercising its consitutional function to defend and vindicate the rights of individuals the power of the Court to award exemplary or punitive damages against the State in appropriate circumstances is, as the decisions of this Court demonstrate, of fundamental importance.
The quantum of exemplary damages
Not every aggravated or even malicious breach of rights requires an award of exemplary damages. They are not damages to which a plaintiff is entitled to as a claim of right. It is in principle a matter for the trial Judge in the first instance to determine, in the exercise of his discretion, whether an award of exemplary damages is necessitated by the special need to achieve or provide for the purposes which exemplary or punitive damages serve, as outlined above. Not every case of grave or aggravated breach of rights will necessitate such damages.
I consider that the grounds for awarding substantial exemplary damages in this case are compelling. Those grounds hardly need further elaboration involving as they did the undermining of the due process of law and inveigling, with perjured evidence, a jury of citizens, faithfully doing their duty, to convict an innocent man. They have also undermined the reputation of an important State body, An Garda Síochána. On a number of occasions I have referred above to the especially grave features of the acts committed by the Garda members in this case. Indeed the case is such an exceptional, egregious one that so manifestly calls for such an award that it is not a case in which is in any sense borderline or one which required any finer points of law concerning the liability to award such damages to be argued. Although I agree with the views of McCarthy J. in McIntyre -v- Lewis, that the restriction of exemplary damages to certain categories of cases as stated by Lord Devlin in Rookes –v- Barnard [1964] AC 1129 has no application in our law, that question does not need to be addressed in this case, if it needs to be further addressed at all. Here we have conduct particularly necessitating condemnation.
In all the circumstances of the case I am quite satisfied that a very substantial award of exemplary or punitive damages is warranted against the defendants. In my view it should be in the amount of €1,000,000.00.
The quantum of special damages
The plaintiff’s claim to financial loss focused on loss of earnings from the Point Inn and the loss of capital value of the Point Inn and the capital value of the caravan park, which is the site across the road from the Point Inn for which the plaintiff had obtained planning permission for its development as a caravan park.
The plaintiff’s claims for special damages were not straightforward ones for the learned trial Judge to evaluate because of the state of the evidence and a number of imponderables to which it gave rise.
In the High Court there was at first an issue between the plaintiff and the defendants concerning a causal link between the circumstances in which the plaintiff was prosecuted, convicted and imprisoned and some of these financial losses. The learned High Court Judge resolved that issue by concluding that the plaintiff had established a causal nexus between the events of which he complained and the closing of the Point Inn, the fire there and its sale together with the caravan park by the receiver. The reasons for his conclusions are set out in his judgment and the liability of the defendants for the financial loss as found by the learned trial Judge is not challenged by them in this appeal.
What is put in issue by the plaintiff is the amount of the damages awarded by the learned trial Judge for (a) loss of net tax profits at the Point Inn, for which he awarded €550,000.00 and (b) capital loss of the Point Inn and caravan park for which he awarded a net sum of €806,221.00. A sum awarded for €12,650.00 legal fees is not in issue.
As regards loss of earnings from the Point Inn, or as it was put in evidence the loss of profits net of tax from it, the learned trial Judge found that the accountant, Mr. Peelo, who gave evidence for the plaintiff and the accountant, Mr. Jackson, who gave evidence for the defendant were effectively ad idem as regards the loss of profits up to March 2003, the claim for loss of profits from the caravan park having been abandoned. Having evaluated the evidence before him the learned trial Judge ascribed a total of €550,000.00 under this head of damage allowing for damages up to the date of trial. I do not consider that the plaintiff has established that there was any error in the manner in which the learned trial Judge arrived at this figure. Loss of future earnings did not arise because of the plaintiff’s claim for capital value of the loss of the Point Inn and the caravan park.
As regards the capital value of the caravan park the plaintiff’s valuer, Mr. Younge, initially placed a value of €400,000.00 which he revised upwards to €560,000.00 on the basis of comparisons which he made with other caravan parks which had been sold in different parts of the country. The learned trial Judge accepted the evidence that the plaintiff’s site was less attractive than the sites with which comparisons were made. He also had to take account of the fact that those other sites were sold in a developed state and he had no satisfactory evidence of the current cost of developing the plaintiff’s site. He decided to discount the approach adopted by the defendants’ valuer, Mr. Morrissey, essentially because the evidence required to carry out a valuation exercise based on such an approach was not before him. Accordingly he adopted the approach of Mr. Younge but discounted his valuation for failing to take sufficiently into account the differences between the plaintiff’s site and the comparator sites. He also took into account the fact that any valuation of the caravan park would be influenced by the cost of development at then current figures and he had no evidence of this. On that basis he attributed a value of €350,000.00 to the caravan park. On the facts found by the trial Judge he was entitled to come to this valuation and I find no grounds for interfering with it.
As regards the valuation for the Point Inn he was critical of Mr. Younge’s valuation of €1,150,000.00 because the valuer was misinformed as regards the number of nights per week which the discotheque operated and that was an important element in his valuation.
The defendants’ valuer, Mr. Morrissey, had approached the valuation of the Point Inn on a different basis, concentrating on turnover. The trial Judge was in turn critical of this valuation, in particular because it did not take into account any potential for the premises and also because it took into account the stigma attached to the premises by reason of its licensing history, that is to say, the two endorsements on the license and the objection to the renewal of the pending licensing application. He concluded that since prospective purchasers had an assurance that an objection renewal would not be maintained against a new owner neither of the latter considerations were likely to affect a purchaser. Mr. Morrissey’s valuation was €630,000.00. The learned trial Judge therefore decided that he should make some adjustment to the approach of each valuer. He identified the factors which he took into account in doing so and those which he excluded and in particular gave preference essentially the approach of Mr. Morrissey based on turnover with some adjustments because of factors which the valuer ought not to have taken into account and his failure to take into account of potential. On this basis he arrived at a figure of €700,000.00 for the Point Inn. The plaintiff has complained that not enough was allowed for the potential development of the Inn but the trial Judge’s approach to this element was entirely justified by the evidence.
This gave a total value of the Point Inn and the caravan park of €1,050,000.00 from which certain figures fell to be deducted. These figures related to the proceeds of the malicious injury claim made by the plaintiff, the repayment of the grant to the International Fund for Ireland and payments made to the plaintiff’s creditors. I do not think any criticism can be made in respect of these deductions. This left a net loss of €806,221.00 in respect of the Point Inn and the caravan park for which the plaintiff was entitled to be compensated.
In assessing the plaintiff’s losses for loss of profits at €550,000.00 and his loss in respect of the Point Inn and the caravan park at €806,221.00 the learned trial Judge relied on facts which he was entitled to find on the basis of the evidence before him. Insofar as he relied on inferences drawn from those facts I am also satisfied that those inferences were reasonable and correct.
Accordingly the plaintiff’s appeal against the learned trial Judge’s findings in relation to special damages fails.
General damages for events prior to 1st October, 1992
This head of damage, described as damages at common law by the learned trial Judge, is confined to the period from 18th April, 1992 until 1st October, 1992 the latter being the date deemed by the learned trial Judge to be the one on which charges were brought against the plaintiff. The assessment of all other damages related to matters which occurred after 1st October, 1992 and were dealt with as falling within the ambit of the plaintiff’s claim pursuant to s. 9 of the Act of 1993.
Under this heading the learned trial Judge awarded the sum of €5,000.00 damages to the plaintiff and those damages relate to the plaintiff’s claim for alleged wrongful conduct on the part of the defendants, their servants or agents, in connection with the searched and raids on the Point Inn by the Gardaí as well as the roadblocks on the main road from Derry to the Point Inn on a number of occasions, all of which the plaintiff claimed damaged his business. The claim for damages under this head included damages for physical damage done to the plaintiff’s premises in the conducting of searches.
As was the case in relation to other heads of damage the findings of fact necessary to determine the issue as to damages is primarily a matter for the trial Judge having regard to the evidence before him.
As regards the conduct of the Gardaí in relation to the roadblocks, searches and raids of the plaintiff’s premises complained of, the learned trial Judge concluded that he was not satisfied, on the evidence before him, that the Garda operations were an abuse of powers or motivated by any improper purpose. He took into account the fact that subsequent events might suggest an improper purpose and he was perfectly entitled, in his evaluation of the evidence before him, to conclude, as he did, that the plaintiff had not discharged the onus of proof in relation to these matters. He did however conclude that the breaking of some furniture on the plaintiff’s premises during the course of a raid and the breaking down of an emergency exit door was wrongful and could not reasonably be considered incidental to the powers conferred on the Gardaí by a search warrant. In the absence of any evidence being tendered as to the actual loss sustained by reason of the property being damaged his assessment of €5,000.00 under this head seems to me entirely reasonable. I would uphold that finding.
Conclusion
In conclusion I would allow the appeal of the plaintiff on the issue of damages and find that the damages to which he is entitled to recover from the defendants may be summarised as follows:
1. General damages (pre-October 1992 claim): €5,000.00
2. General damages including aggravated
damages (post-October 1992 claim): €2,250,000.00
3. Exemplary damages: €1,000,000.00
4. Special damages :
a. Legal Fees €12,650.00
b. Loss of profits at Point Inn €550,000.00
c. Loss of Point Inn and caravan Park €806,221.00
Accordingly I would allow the appeal and substitute an award of a total of €4,623,871.00 to the plaintiff against the defendants.
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of March, 2007.
Introduction.
This is a most serious, tragic and alarming case. It has been before the Courts now, in one form or another, for nearly fourteen years. The plaintiff/appellant Mr. Francis Shortt was framed by gardaí on drug offences in 1995, and given a three year sentence. His life was almost totally ruined and he was reduced to a state of despair. At that nadir of his fortunes he found the strength to reject an offer of early release, on the condition that he dropped his appeal and thereby acknowledged his guilt: the Court has heard no explanation of how, why and on whose authority this offer came to be made to him. He lost his first appeal. After a long struggle, conducted by dedicated legal advisers, the prosecution quite suddenly, and without any substantive explanation, consented to his conviction being quashed, in November 2000, some years after his release. After another interval of years, in July 2002, he succeeded after a long hearing in having the conviction declared a miscarriage of justice: his application for this declaration was opposed with perjured evidence by gardaí. The Court is now concerned with the question of compensation for the plaintiff, the victim of what the authorities conceded on this appeal was the worst known example of oppression of a citizen by the State.
This is Mr. Shortt’s appeal from the assessment of damages by the learned President of the High Court. It is necessary, before addressing the question of compensation, to survey the facts of the case and their consequences.
On the 17th of May, 2006, the second and final day of the hearing of this appeal, leading counsel for the defendants Mr. Michael Cush S.C. resumed his submissions with the announcement that he would be saying, as he aptly put it, “something by way of apology to Mr. Shortt”. At the conclusion of his submissions he said that he wished to:
“… take the opportunity to say that the State acknowledges that Mr. Frank Shortt was the victim of a grave miscarriage of justice. For that and for all his suffering and loss in consequence the State apologises to him unreservedly”.
This apology was tendered some fourteen years after the start of the chain of events which led to Mr. Shortt being wrongfully convicted of drug offences on the basis of consciously false garda evidence, eleven years after he was sentenced, five and a half years after his conviction was quashed by the consent of the Director of Public Prosecutions, and just under four years after the declaration by the Court of Criminal Appeal that his conviction was a miscarriage of justice. The apology was both belated and limited in the sense that no apology of any kind was offered until the surprise of the Court at its absence was made clear the previous day. The apology is carefully drafted, does not refer to Mr. Shortt’s innocence, and does not purport to be offered on behalf of An Garda Síochána. The plaintiff accepted it, in words both dignified and pointed, “in the spirit in which it was offered”.
The reading of this apology was (apart from the judgment of the Court) the last act in an extraordinary fourteen year history which saw Mr. Shortt, then a 60 year old Chartered Accountant and business man, and the father of five children then aged from 12 to 22, perjured into prison by gardaí. They seem to have borne him no personal ill will: they did it for the purpose of furthering their own careers, and in particular that of their commander and mentor Inspector, later Superintendent, Kevin Lennon. Lennon inspired the perjury and gave it a form and coherence which his principal coadjutor, Detective Garda Noel McMahon, was himself incapable of achieving.
PART I
What the Gardaí did and how it came to light.
The set up.
On the 31st July, 2002, the Court of Criminal Appeal gave judgment in Mr. Shortt’s application to have his conviction deemed a miscarriage of justice. This application was hotly contested by the gardaí most directly involved and required seventeen days of oral hearing before the Court of Criminal Appeal. In the judgment of that Court there is set out in very considerable detail the precise working of the conspiracy between certain gardai to frame Mr. Shortt, the subsequent steps taken to prevent this coming to light, and later again to prevent the conviction being deemed a miscarriage of justice. The judgment is long, running in its original form to 117 of typescript excluding Appendices. It is reported at [2002] 2 I.R. 686. It is unfortunate, for present purposes, that the editors of the official Reports, in an attempt to save space, drastically edited the factual portions of the judgment, focussing mainly on the legal issues involved. I do not say that by way of criticism: the concern of the Irish Reports is with legal issues. But it means that there is no printed record of the detailed findings of the Court of Criminal Appeal in this uniquely grave case. It would be wasteful to set out here precisely the same material as is set out in the Court of Criminal Appeal judgment. I propose to offer only a brief summary. However, the judgment of the Court of Criminal Appeal and the various appendices to it are available in the office of that Court. I wish to emphasise that no-one can hope to form a full and complete view of the conspiracy deployed against Mr. Shortt without reading that judgment in full.
Having said that, I will attempt to summarise what occurred as follows:
The Point Inn premises were closed for renovations after the death of Mr. Shortt’s brother in 1991 and reopened on the 18th April, 1992. Almost immediately, it became clear that a problem existed with drug dealing in the premises, in particular the presence of drug dealers from Northern Ireland. This problem was acknowledged both by the gardaí and by Mr. Shortt and was the subject of considerable discussion, oral and written, between them. Eventually it was decided to address this problem by putting undercover gardaí into the premises at weekends over a period of some months. Noel McMahon was always present in an undercover capacity; Garda Tina Fowley was present on all but one such occasion. It was agreed at the trial that the topic of undercover gardaí had been discussed between Mr. Shortt and Superintendent Brian Kenny. Mr. Shortt said he was aware from this discussion that there would be undercover gardaí in the premises whereas Superintendent Kenny, agreeing that the matter had been discussed, said that he had not committed himself on this point. As will be seen, Mr. Shortt’s account of this matter received some unexpected support long after the trial.
Subsequent to a major raid on the premises in August, 1992, the gardaí charged Mr. Shortt with multiple charges of permitting his premises to be used for the sale of drugs on that and other occasions. Despite the large number of charges, when the case came to the District Court there was (according to McMahon) a “semi-deal” available to Mr. Shortt whereby he would be allowed to plead guilty to one charge and the matter would be dealt with by way of a fine. Mr. Shortt did not avail of this offer. It was then decided to have the matter dealt with on indictment in the Circuit Court. Mr. Shortt at all times protested his innocence of the charges in question. When a Book of Evidence was eventually produced it turned out that the case against him was very weak indeed, almost non-existent: on the hearing before the Court of Criminal Appeal counsel for the State conceded that there was then insufficient evidence to put Mr. Shortt on trial “on the statements”.
A vital development then occurred. Papers were sent to counsel to advise Proofs. Before a written advice was drafted, there was a lengthy meeting between State counsel and various gardaí in the Lake of Shadows Hotel near Buncranna. When counsel’s Advice of Proofs was received it pointed to the fact that the evidence in the garda statements was grossly inadequate to support the charges. As counsel said, the evidence available from the garda statements clearly established that drug dealing was taking place on the premises but it did not establish that Mr. Shortt was in any way involved in or tolerant of this. Portions of the evidence, indeed, were open to the construction that he was not aware of it. In so advising, counsel was doing no more than her duty to her client, the Director of Public Prosecutions.
This Advice of Proofs came to hand in September, 1994. It presented the gardaí with an acute dilemma: a trial date had been fixed for October, 1994, and here was State counsel telling them that, on the Book of Evidence, they had no case. Certain gardaí then engaged in a conspiracy to transform a very weak case into a very strong one by inventing evidence. This was done cleverly and cold bloodedly, in a manner fully described in the judgment of the Court of Criminal Appeal.
The result of this conspiracy emerges clearly in the judgment of the Court of Criminal Appeal. It can be seen very easily, simply by comparing the original statements of McMahon and Fowley with their subsequent statements, served as additional evidence. The judgment of the Court of Criminal Appeal contains a tabular summary tracing the changes in the Garda account contained in the original contemporary notes (concealed at the trial) through the initial statements to their eventual additional evidence. It is noteworthy that the statements of McMahon and of Fowley were altered in a very similar way.
This, however, was not easily done. Although one would have thought it perfectly plain from the Advice of Proofs what the shortcomings in McMahon’s evidence were, he found it difficult to come up with a new statement which would support the prosecution case. Accordingly, he brought his statement to a meeting with Lennon in a garda station. Lennon took the statement and, in his own handwriting, indicated the necessary alterations. Some of his instructions are in unambiguous terms such as “Where is Shortt – say he was nearby”.
The statement of McMahon annotated by Lennon is an appendix to the judgment of the Court of Criminal Appeal.
Even with this fools guide, in Lennon’s handwriting on McMahon’s statement, the latter had serious difficulty in producing an acceptable version to be served as additional evidence. His eventual statement of additional evidence was produced not in a garda station but at a meeting in his own home attended by himself, Garda Fowley, another guard who did the typing and, for part of the time Inspector Lennon. He was called to the meeting because of a grave and unexpected difficulty which had arisen. The gardaí had told State counsel when they met her that on each occasion they were present undercover in the Point Inn the water supply had been turned off. The effect of this was to force customers, if they wanted water, to buy it from the bar. It is a recognised effect of the consumption of “speed” that it makes the consumer extremely thirsty. McMahon’s statement had several references to seeing large quantities of glasses of tap water being sold over the bar. The problem which arose was that in the statement of Garda Tina Fowley she described following a girl in to the ladies toilet and seeing her splitting a white tablet. The girl then “put one half into her mouth and washed it down with a drink of water from the wash basin”. If this was so then the detailed allegation the Gardaí made to State Counsel, recorded in the Advice of Proofs, was false.
Arising from the inconsistency between this statement and the allegation to counsel that the water had always been turned off it was decided simply not to pursue the latter allegation any further than they already had. This was done even though it had featured quite heavily in Lennon’s original plan: on the first page of McMahon’s statement he had written “You have to say that you drank numerous half pints of water from the [illegible] section of the bar. Who was filling the glasses of water from behind the bar etc.”.
The case then proceeded with McMahon and Fowley giving evidence in accordance with their new statements. The importance of their evidence is undisputed: the learned trial judge in the Circuit Court (His Honour Judge Buchanan) described McMahon’s evidence as the nub of the prosecution case, and so it was. McMahon was naturally cross-examined on how his first statement, which revealed no case at all against Mr. Shortt, had mutated into a second, which revealed a strong one. He claimed that the new version was the unaided product of his own memory. Asked what materials he used in writing his second statement he perjured himself by concealing the existence of his original notes which did not at all incriminate Mr. Shortt.
Mr. Shortt was then convicted and sentenced to three years imprisonment. His conviction related to thirteen only of the counts against him: the rest were held over. Later, when he was offered early release if he dropped his appeal, a further inducement held out to him was that these additional counts would be dropped. He was at that stage in fear that they would be proceeded with and he would receive a longer sentence.
It must be emphasised that the foregoing is the barest summary of the main findings of the Court of Criminal Appeal in relation to the framing of Mr. Shortt. There was also evidence that McMahon arranged with a woman who was an established garda informant to attend on the night of the raid in August, 1992, and plant drugs on the premises. In fact, she got drunk and did not turn up. Furthermore, McMahon alleged that he had bought drugs from a named person using marked sterling currency. This person was then arrested but the currency could not be found in the property store in Buncranna Garda Station when inquiries were later made, and it turned out that the custody record in relation to the person had been torn out of a bound book at the garda station. This, of course, would have shown what property he had on him on arrival there. Despite the allegation of widespread drug dealing, no person appears to have been convicted of such an offence in relation to the evening of the raid. I reiterate the necessity for anyone wishing to understand in detail what happened to Mr. Shortt to read the judgment of the Court of Criminal Appeal.
Consequences.
The consequences of these things to Mr. Francis (Frank) Shortt, were nothing less than life blighting. He suffered imprisonment for three years, less only statutory remission, his business and his reputation were ruined, his health suffered and his private and family life were severely affected. He was driven into a state of despair and for a period endured a dark night of the soul. His premises were burnt down by the I.R.A. He suffered intense feelings of shame and powerlessness, aggravated by his school going children being pilloried as the children of a drug dealer and by his wife, whom he had always supported appropriately, being compelled to apply for a social welfare allowance for the wives of prisoners. When, having served the sentence and suffered all the other consequences, he endeavoured to have his conviction declared a miscarriage of justice, he was opposed with further perjured evidence by members of An Garda Síochána, including the Superintendent. While the direct cause of these grotesque injustices was a conspiracy between a small number of members of An Garda Síochána, the attitude of the garda and prosecuting authorities was, to say the least of it, a grudging and insensitive one as will be seen.
The circumstances of this case, and the fact that the perpetrators of the grave wrong committed against Mr. Shortt were persons wearing the uniform of the State, aggravate the wrong done to him and give the affair a public as well as a private dimension. It is now possible to be categorical as to how this injustice was perpetrated: the details are set in the judgment of the Court of Criminal Appeal, and make for profoundly disturbing reading. Further details of the actions and attitudes of the State authorities, specifically the prosecution service and the Garda Síochána in the period 1992 – 1997 came to light on the hearing of this appeal and are discussed below. On the hearing of Mr. Shortt’s application for compensation the case he made was not contradicted in any way by those authorities and was accepted by the learned President.
Matters still unexplained.
But there are significant aspects of the case which are still unexplained. These include how it came about that Mr. Shortt was returned for trial on serious criminal charges, at the suit of the Director of Public Prosecutions, even though it was conceded in the Court of Criminal Appeal that there was then no sufficient case against him on the documents which had been produced; how, despite this state of affairs, Mr. Short was offered a “semi-deal” whereby the bulk of the charges would be dropped if he pleaded guilty to a single charge, with only minor consequences; how no alarm bells were set ringing by the sudden transformation of a very weak case into a very strong one by new statements from two members of An Garda Síochána containing material which they had inexplicably said nothing about until shortly before a trial date was fixed; how, while unjustly imprisoned, Mr. Shortt was offered various benefits, including early release, if he would drop his appeal and how a very important allegation of an admission of perjury by one of the gardaí involved, from a credible source, apparently escaped the attention of senior gardaí and prosecuting authorities for a considerable time. They did nothing about it. But the D.P.P., while unaware of this important evidence, nonetheless consented to the conviction being quashed, for reasons yet to emerge.
Motives.
Not the least alarming aspect of the case, touched on above, is that Mr. Shortt was framed by gardaí who, on all the evidence, bore him at first no personal ill, will simply in pursuit of an unscrupulous scheme to advance their careers, and in particular that of Superintendent Kevin Lennon. It was he who orchestrated the conspiracy to make a false case against Mr. Shortt and he had as his willing coadjutor Detective Garda Noel McMahon and perhaps another member. Each of the relevant gardaí was absolutely indifferent to the commission of perjury. McMahon, almost incredibly, at one point during his evidence in the Court of Criminal Appeal blamed, not himself or his superior, but Mr. Shortt’s original legal advisers for the sentence which he received:
“I might have expressed the fact that it is a shame a man of his age put himself in a position or was put in that position by his legal team to serve time when it could have been resolved at District Court level”.
On the face of it, Mr. Shortt would have appeared an unpromising candidate for the sort of set up of which he was the victim. He was a sixty year old family man, a professionally qualified accountant, a Fellow of the Institute of Chartered Accountants, and a well known businessman in the North Donegal area. Yet he was successfully framed, with all the consequences set out above. It is also noteworthy that a witness told the Court of Criminal Appeal, with retrospective incredulity, that Lennon was spoken of in Donegal Garda circles as a possible future Commissioner of An Garda Síochána.
Admission of perjury drops out of sight.
Another major theme in the judgment of the Court of Criminal Appeal was the evidence of Mrs. Sheenagh McMahon which, for the reasons set out in that judgment, the Court accepted as truthful and very largely accurate. A very significant part of her evidence related to admissions to perjury made to her by Detective Garda McMahon. This evidence is important for three quite separate reasons.
In evidence to the Court of Criminal Appeal Mrs. McMahon said that Detective Garda McMahon was “upset in front of me about Mr. Shortt, his conviction, he didn’t think that Mr. Shortt was going to get three years… I don’t think that he was upset about the fact he was convicted, but he was definitely upset at the fact that he was put in jail for three years… he said he didn’t expect him to get three years.” She also said that Detective Garda McMahon had said “… that it was his evidence that convicted Francis Shortt and without his evidence Francis Shortt wouldn’t have went to jail” (sic). She was asked whether the Detective Garda had said anything else, whereupon she paused and said “He told me that he had perjured himself in court… and that he had done it for Kevin Lennon to help him get promotion”.
This was clearly very significant evidence. The Court of Criminal Appeal was, however, constrained to treat it with great caution because the witness was the estranged wife of the Detective Garda and she appeared to be giving this account for the first time in the Court of Criminal Appeal, although she had been extensively interviewed by the Gardaí as part of Assistant Commissioner Carty’s Inquiry. She was questioned about this both by counsel and by the Court. She stoutly denied that she was saying it for the first time and maintained in the face of scepticism from counsel and the Court that she had given the same information to the Carty Inquiry. The Court, and the parties to the miscarriage of justice application had been given what was represented to be all the relevant papers from this Inquiry and there was no mention, direct or indirect, of this very significant allegation being made by Mrs. McMahon. But she appeared absolutely certain in court that she had made this allegation to Carty. The Court specifically asked counsel for the respondent:
“The question is now a very simple one: is there in any shape or form a signed or unsigned note of a mention of perjury by Mr. McMahon?”
Counsel for the Director of Public Prosecutions, who was fully alive to the importance of the matter replied:
“Not in any material we have from the Carty Inquiry…”.
The Court then asked:
“… Is there in any shape or form in any garda document a note of this lady mentioning the term ‘perjury’ or words to that effect?”.
Counsel replied:
“Certainly not that I have or that I am aware of…”.
Most unfortunately and embarrassingly, it transpired that counsel’s instructions were grossly deficient. Later in the day a separate memorandum of an interview with Mrs. McMahon was found and, in the words of counsel for the State:
“It does mention – what the witness says is correct”.
It transpired, precisely as Mrs. McMahon had said, the garda officers conducting the Inquiry had indeed decided that the allegation of perjury and cognate matters should be put into a separate document. The consequences of this for the present case are indeed very great. What she said was recorded in a separate memorandum of interview of the 15th September, 2000; as follows:
“Sheenagh McMahon then spoke about the Frank Shortt case. She stated that her husband had told her that Tina Fowley nearly ruined the case in court. Noel told her that he had committed perjury in the Court. She stated Kevin Lennon put Noel up to telling lies in the case. Sheenagh said that Tina Fowley could fill us in more on this matter. Noel told her that Frank Shortt did not deserve the sentence that he had received. She said that Frank Shortt had gone to Superintendent Brian Kenny in Buncranna and had requested him to put gardaí into the Point Inn in order to clear the place of drugs”.
The last sentence above precisely mirrors what Mr. Shortt said in his own defence at the trial. But it was contradicted by Garda evidence at the trial.
There is then a sentence which is difficult to believe that anyone concerned about policing matters in Donegal could have forgotten:
“Sheenagh McMahon stated that it was probably because of the false evidence given in the Frank Shortt that Tina Fowley blew the whistle on the McBrearty case”.
Three observations require to be made about this evidence.
If it is reliable, and the Court of Criminal Appeal has found that it was, it is evidence of an absolutely unique kind: an admission by a Detective Garda of premeditated perjury in an important criminal case.
Secondly, Mrs. McMahon’s credibility was greatly boosted by the fact that her account of having told the Carty Inquiry about the admission of perjury, and her persistence in this account in the face of manifest scepticism from the Court and from counsel for the authorities, was vindicated by the sudden production of the memorandum. It must have appeared to Mrs. McMahon that the authorities had deliberately decided to “bury” her account of September, 2000, and to deny that she had ever said anything of the sort. But she did not waiver in her account.
Thirdly, while the Court of Criminal Appeal for reasons set out in its judgment found that neither the garda authorities nor the Director of Public Prosecutions had deliberately concealed the memorandum, the fact that it was forgotten about and never acted upon is gravely disturbing. It should be said that Mrs. McMahon gave the account set out above to the gardaí only two months before the Director of Public Prosecutions consented to Mr. Shortt’s conviction being quashed. Nevertheless, counsel for the Director told the Court of Criminal Appeal that her account had not influenced the Director’s decision because, though he had received the memorandum, he had not read it at the time he took the decision to consent to the conviction being quashed. This, in turn, means that the Director had formed the view that the conviction was unsafe or unsatisfactory on grounds unrelated to the Detective Garda’s confession to perjury. The Court has no idea what these grounds were.
Apart from that, it is very surprising, to say the least, that so dramatic an allegation was not followed up. It was the gardaí who insisted that Mrs. McMahon’s account of the admission to perjury should not form part of her main statement but be separately recorded. This, presumably, was because of its sensitivity. But it had the consequence that the perjury allegation simply dropped out of sight. It did not form part of her principal statement, or of the edited version of that statement which was given to the Court and to Mr. Shortt’s advisers. It must surely have been communicated to the very highest levels of An Garda Síochána but nothing was done about it.
So thoroughly did this vital piece of information drop out of sight that solicitor and counsel for the authorities, at a hearing specifically directed to the question of whether Mr. Shortt’s conviction was a miscarriage of justice, were never told about it by the gardaí. These professional advisers were thus placed in a position of very great embarrassment without any fault on their part. It is only fair to add that, after this catastrophe, solicitor and counsel for the authorities placed the whole product of the Carty Inquiry before the Court of Criminal Appeal. This had the incidental effect that that Court could see the enormity of the task undertaken by Mr. Shortt’s legal advisers in trawling through documents running to many thousands of pages a considerable number of which were neither indexed nor paginated.
The Court can only regard the circumstances whereby Mrs. McMahon’s allegation simply dropped out of sight as indicative of grave insensitivity on the part of the authorities, an inexplicable failure to investigate the most relevant and serious allegation and a reluctance to contemplate the appalling prospect that Mr. Shortt had indeed been the victim of a campaign of perjury by gardaí. Even when the documentary evidence mentioned below came to light, the alleged confession to perjury remained uninvestigated.
Chance and Coincidence.
To conclude this survey of the case, attention must be drawn to the large element of chance and coincidence involved in the eventual vindication of Mr. Shortt. One of the gardaí involved, McMahon, was a man who drank to gross excess and when drunk and maudlin confessed his perjury to two of the witnesses who gave evidence in the Court of Criminal Appeal. Secondly, McMahon’s drinking problem, in the years following the Shortt case, made him into a “loose canon” from the point of view of his colleagues and superiors. There was, for example, a serious incident where he pointed a gun at another guard. But of more relevance to the present case was the fact that, according to Superintendent Lennon himself, a Sergeant in the Donegal Division, Sergeant Leheny, expressly threatened to destroy Lennon’s career on the basis of information which he claimed McMahon would supply when drunk. This extraordinary fact led to the creation of certain contemporary documents discussed below. Thirdly, there was something of a falling out between McMahon and Lennon over an apparently trivial cause: Lennon successfully nominated himself for a Divisional policing award wholly or mainly on the basis of the Shortt case: and McMahon bitterly resented this as he felt he should have had the award himself. Fourthly, the ill-feeling engendered by this dispute led Lennon to think that McMahon might make allegations against him and caused him to get McMahon to write a remarkable “letter of satisfaction” which is fully discussed in the judgment of the Court of Criminal Appeal. The same dispute and its consequences led McMahon to keep certain documents of a highly incriminating nature which he might otherwise have destroyed, including one clearly showing Lennon’s role in procuring the alteration of the garda evidence prior to the trial. McMahon kept this material because, in his own words used in a handwritten aide memoire to himself, he was afraid that “Lennon [was] shafting me”.
Documents.
The fact that these incriminating documents were preserved, precisely because they were obviously incriminating, by an experienced Detective Garda who fully understood their significance is one of the most remarkable features of a case with many extraordinary features. The documents themselves include:
(1) A group of “half sheets” being individual pieces of paper on which McMahon had written his original notes of his undercover activities in the Point Inn. The significance of them for present purposes is that they do not at all incriminate Mr. Shortt. They were concealed at the trial even in answer to a direct
question which, if truthfully answered, would have
involved revealing their existence.
(2) Noel McMahon’s original statement, again failing to
incriminate Mr. Shortt, with handwritten annotations
in Lennon’s handwriting showing how he was to be
incriminated in the second statement.
(3) A four page document in McMahon’s handwriting
which included the notation
“Point Inn – perjury – set up – advice of proofs –
Kevin Lennon had my note book”.
(4) Another document in McMahon’s handwriting,
headed “General”. According to the evidence in the
Court of Criminal Appeal this recorded what
Lennon told McMahon were the allegations
Sergeant Leheny was making against him, Lennon. They led to the ‘Letters of Satisfaction’ discussed below. Matters mentioned included an allegation about Lennon’s personal life, “Point Inn etc. etc.” and ‘Lennon shafting me’.
(5) The “Letters of Satisfaction”. These were two
drafts of a letter, one envisaging its being written
to Lennon himself by McMahon and the other
envisaging it being sent to Sergeant Leheny. Each
is an endorsement of Lennon’s character by McMahon and there is
a specific reference to the fact that McMahon had
never known Lennon “act illegally while
participating in any operation”.
They are very remarkable documents indeed and are Appendices to the judgment of the Court of Criminal Appeal. The first version was drafted by McMahon and the second by Lennon.
(6) Prosecuting counsel’s advice of proofs for the criminal trial. It is most unusual to be able to scrutinise this document, as it would normally be protected by privilege. Its importance for the present purposes includes that it demonstrates clearly that the gardaí were advised that they had no sufficient case against Mr. Shortt, leading them to set out to remedy this embarrassing state of affairs. It records aspects at least of what the gardaí told counsel in their long meeting at the Lake of Shadows Hotel, such as the information that the water was turned off in the premises. It does not appear from the advice of proofs that the information subsequently added to garda statements was narrated to counsel at the meeting. It should also be said, in relation to the advice of proofs, that of course a case could have been made against disclosing it on the basis that it was a privileged document. But it came to light, not by virtue of any process of disclosure or discovery, but because it was seized by the Carty team amongst other documents retained by McMahon. No objection was taken to its use during the hearing in the Court of Criminal Appeal. It was, together with other documents, vital in demonstrating the nature and detail of the conspiracy which occurred.
I stress, once more, that the judgment of the Court of Criminal Appeal is essential for an understanding of these documents.
Mrs. Sheenagh McMahon said that her husband had shown the “Letters of Satisfaction”, and in particular Lennon’s draft, to her and “said to me that this was the biggest mistake that Kevin Lennon made, and he said that that piece of paper was so important to him… he said he would never let that out of his hands”. McMahon and Lennon each knew that the other was a wholly unscrupulous person with no regard whatever for the oath or for the truth. Lennon agreed that he had got McMahon to write the “Letters of Satisfaction” as “insurance”. McMahon kept these incriminating documents because they incriminated Lennon as well as himself, so that if Lennon “shafted” him, he would be destroying himself as well. He hoped that this prospect would prevent Lennon “shafting” him.
It is essential to recall, though incriminating material about the set-up was preserved for the reasons mentioned above, it might never have come to light but for more widespread concerns about the activities of certain gardaí in Donegal. These are now notorious due to the reports of the Morris Tribunal and they had previous led to a high level garda inquiry. The Shortt case was only a very small part of that inquiry but the inquiry led to the Carthy team taking possession of the documents retained by McMahon. It also led to the first coming to notice of third party evidence to the effect that McMahon had perjured himself in Mr. Shortt’s case: most unfortunately this appears to have been lost sight of for a considerable time.
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It is important to note that the remarkable gravity of the case has now been recognised by all who dealt with it. The learned President described what had happened as “an outrageous abuse of power”. Counsel for the State on the hearing of the appeal said that Mr. Shortt’s case was the worst case of State oppression of a citizen of which the State defendants were aware. The consequences to Mr. Francis Shortt were appalling and cry out for vindication. Even apart from the outrageous damage to that unfortunate man, there must be grave public concern at the garda conspiracy against an innocent man and the calculated, fluent and plausible perjury which the gardaí engaged in, with total indifference to humanity or justice.
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PART II
Submissions on damages.
A change in the State’s position.
It must first be said that the State’s case as eventually argued in this Court was, on the very significant topic of exemplary damages, very different from that advanced before the learned President in the High Court. The State had contended that no award, or only a very limited award, should be made in respect of exemplary damages by reason of the size of the compensatory damages awarded and the risks of double compensation. In other words, the State had contended that a significant part, or perhaps the whole, of what is normally reflected under the heading of exemplary damages (where the question of exemplary damages arises at all) should be regarded as having been already covered by the awards under the heading of general damages. This submission found favour with the President who justified the award he made by remarking that he “must be conscious of double compensation”.
On the hearing of this appeal Mr. Michael Cush S.C. in the course of argument very properly withdrew this contention. It was proper to do this because damages awarded under this heading are different in kind from, and do not at all overlap with, general damages. This topic is fully discussed below. But since the Court is making a significant alteration in the damages awarded by the High Court, it is fair to point out that the difference is to a large degree accounted for by this change in the State’s attitude to a very important component of the compensation. The Court is quite satisfied that the State’s current approach is based on a correct assessment of the law on this topic.
The damages awarded by the learned President were all the subject of appeal to this Court. They were as follows:
Apart from the challenges to the special damages, which will be dealt with later, it was said that the sum of €500,000 for general damages was gravely inadequate. The award of €50,000 for exemplary damages was very small in the circumstances “extraordinarily so: it ought to be very very much expanded”. Exception was taken to the decision of the learned President not to award aggravated damages as a separate head of damages. Finally, there was a challenge to the award of €5,000 in respect of the claim for events from April, 1992, to the date on which the plaintiff was charged.
Submissions on Damages: the plaintiff’s case.
In relation to the sum of €500,000, Mr. Hugh Mohan S.C. for the plaintiff stressed the long period of time which this award had to cover. He said that the plaintiff had clearly “ticked all the boxes” for a very large award of general damages in respect of events which had gone on for a long time and said that the many different types of damage required detailed attention. The first and most important of these, counsel submitted, was the 27 months spent in jail. He emphasised the dreadful effect it had on the plaintiff as set out in his own evidence and that of his wife. Immediately upon conviction he was handcuffed, chained to a prison officer and removed to prison in a blaze of publicity. He spent two separate periods of twelve weeks in Mountjoy prison in terrible conditions and at times in the company of persons of whom he credibly alleged he was constantly frightened. Counsel stressed the effect of this in particular on a man over sixty years of age with no previous convictions and no previous exposure to the criminal elements with whom he was confronted in prison. In making these submissions counsel was able to refer to a prison diary kept by the plaintiff: it is not my intention to set out here extracts from what was a private document kept in part to preserve his sanity in the circumstances in which he found himself. But there can be no doubt that he suffered despair and extreme mental anguish. In the words of a medical report from a consultant retained by the defendants, he had inflicted on him “ongoing, relentless and continuing stress as a result of the events before during and after his trial”. Counsel referred to this doctor’s conclusion that it was “highly probable that the events from 1993 onwards contributed appreciably to a heart condition”. As mentioned above, the evidence of Mr. Shortt and his wife was not contradicted. Counsel particularly emphasised Mrs. Shortt’s evidence that her husband quite suddenly became an old man, and at times resembled “a zombie”.
Counsel emphasised certain other incidents of the imprisonment. It was undisputed that the plaintiff had been denied temporary release on at least fourteen occasions even though this privilege was accorded to people who he knew in prison who had been convicted of what appeared to be much more serious crimes. There was equally no contradiction of the plaintiff’s evidence as to what he had been told by way of explanation of this: his application had to go to the local Garda Superintendent, who was Superintendent Lennon, and that it was to be inferred that he had simply frustrated these applications. These refusals induced depression in the plaintiff for which he was prescribed medication at particularly bad moments, when, for example, he was refused temporary release on the birth of his first grandchild and refused again when his wife had to go into hospital leaving no adult at home to look after school going children.
Separately, Mr. Mohan made submissions on the damage to the plaintiff’s good name which he said was deliberate, severe and ongoing. Counsel referred to a book of press cuttings and indeed it is quite clear that, apart from the extensive publicity surrounding the major raid on his premises, the trial, and the sentencing, Mr. Shortt had lodged in the minds of journalists as an example of a drug dealer successfully dealt with: his name was used in connection with articles on drugs even long after the events at the Point Inn. It is equally clear that Superintendent Lennon made himself available to the media, both print and electronic, to talk and indeed to boast about the case. All this, said counsel, together with the stigmatising effect of conviction, had great damaged the plaintiff’s good name. Moreover, Mr. John Ward, Solicitor, who acted for Mr. Shortt in the appeal and in the miscarriage of justice application and in a malicious damages claim gave evidence that even after the conviction was quashed there were many in North Donegal who took the view that there was “no smoke without fire”.
Mr. Mohan then referred to the physical problems affecting the plaintiff and outlined the medical reports which were produced. He pointed out that the back, heart and (to some extent) psychological problems were ongoing. He had not been able to work since the events. He would continue to suffer from these problems into the future. Moreover his own self perception was gravely affected and, naturally, he thought with horror of all that had happened to him, if not on an hourly basis, then certainly on a daily basis.
In this regard Mr. Mohan particularly challenged the decision not to make an award of general damages into the future. He pointed out that the plaintiff’s own evidence, that of his wife and that in the medical reports all referred to suffering in the future.
Mr. Mohan was critical of the failure to make an award of aggravated damages. He stressed the criteria for such damages as set out in Conway v. The Irish National Teachers Organisation and Ors. [1991] 2 IR 305. He referred in particular to the criteria for the award of such damages as set out in the judgments in the Supreme Court in that case. Counsel submitted that Mr. Shortt met not one but all of these tests. He made lengthy submissions as to a portion of the President’s judgment which will be discussed below to the effect that the award of aggravated damages would amount to double compensation. In summary he said that the factors listed by the learned President at p.57 of his judgment as illustrating the apprehended double compensation all related to the plaintiff’s own feelings, whereas as the indicia for aggravated damages relate to the defendant’s behaviour and motivation.
Mr. Mohan put before the Court photographs of the Shortt family taken shortly before the plaintiff went into prison and another taken after he came out by way of emphasising just how long and how significant were the periods for which he lost out entirely on family life. Counsel also pointed to the very long duration of the affair as a whole, fourteen years from its inception until the hearing and pointed out that the awards had to reflect this.
Separately, Mr. Mohan made submissions on the question of exemplary damages. These, he felt, were very small indeed, very gravely inadequate. He questioned the learned President’s rationale for making only this small award and submitted that no question of “double compensation arose because exemplary damages were meant to be just that, exemplary or punitive, whereas the other headings were compensatory: there was no element of overlap”.
Mr. Mohan adopted the statements in the judgments in Conway and in particular those of Finlay C.J. and McCarthy J., as to the nature and purpose of an award of exemplary damages. In this connection he emphasised that after fourteen years there had been no apology. He referred to the case of de Rossa v. Independent Newspapers [1999] 4 IR 432. This was a defamation case where the plaintiff had been awarded £300,000. Counsel said that allowing for the change from punts to euros and changes in money values, the award for general damages here was approximately what Mr. de Rossa had got. Counsel emphasised that he was not in any way trivialising the libel on Mr. de Rossa which was very grave. He emphasised, however, that there was of course no question of imprisonment in Mr. de Rossa’s case or of the ongoing public humiliation which accompanies a stigmatising conviction. He emphasised also that Mr. de Rossa had gone on to have a successful career including becoming a member of Government and later of the European Parliament whereas Mr. Shortt was ruined and disgraced.
State’s submissions.
For the State, Mr. Michael Cush S.C. first said he was standing over all the figures in the learned President’s judgment. Speaking generally he reminded the Court of the standard of review: there could only be an uplift in damages if they bore no reasonable proportion to what this Court thought ought to be awarded. This was not disputed. Secondly, Mr. Cush submitted that there was no doubt but that the learned President fully appreciated what he was dealing with. He referred to a number of passages of the judgment including the President’s finding of “an outrageous abuse of power”. He emphasised that the judgment of the learned President had set out in eight headings all of the plaintiff’s complaints very fully. Thirdly, Mr. Cush submitted that there was no real dispute about the general approach appropriate to be taken to the assessment of damages and referred to the fact that his written submissions on this topic were not contradicted. Fourthly he submitted that the Court had to have regard to the totality of the award: “there should be some sort of checking off of the various elements”.
In relation to general damages Mr. Cush first submitted that a very large award for special damages had an effect in reduction of general damages. The reasoning he gave for this was that the extra earning power generated by a large sum of money awarded and received all at once. Even if that were not so in relation to certain headings of general damage, counsel said it was certainly true in respect of an award in relation to personal injuries.
Mr. Cush said that the sum of €500,000 awarded in general damages had to be regarded in the circumstances as including what might otherwise be regarded as aggravated damages. He referred again to the President’s list of eight headings at p.54 of the judgment and on a passage in the lower half of p.57. He conceded that the sentence containing the reference to “dual compensation”, would be a misstatement of law if it stood alone but in context it had to be read as a reference to the Conway factors of malice, oppression etc.
This point is an important one since it is relied upon to justify the omission to award aggravated damages.
Mr. Cush agreed that the de Rossa case was useful. He also agreed that the gravity of the wrong committed on the plaintiff in that case was of a lesser order than that committed in the present case. In answer to a question from the Court Mr. Cush said that Mr. Shortt’s case was the worst case of State oppression of an individual citizen of which the State was aware. He said that the absence of an apology was relevant both to exemplary and to aggravated damages.
Turning to the personal injuries aspect of the claim, Mr. Cush said that the plaintiff’s medical problems were over. When his attention was specifically drawn to the cardiologist’s report which seemed to contradict that view, counsel said that perhaps there should be “something” awarded by way of damages for personal injuries into the future in view of that.
Turning to the reputational aspects of the claim, Mr. Cush said that there were three major mitigating factors: the decision of the Court of Criminal Appeal declaring the conviction to have been a miscarriage of justice; the award made by the learned President; and the perception of gardaí in Donegal in the aftermath of Mr. Justice Morris’s very disturbing reports. Mr. Cush submitted that it was clear that all of these matters must have a rehabilitating effect on Mr. Shortt. The State’s reliance on the Morris Report as mitigating the damage to Mr. Shortt can only be on the basis of a view that the reputation of the force in that area is so damaged that an arrest by them, followed by a conviction based on their evidence, is devalued or lacks in credibility or is capable of being regarded as a set up.
Mr. Cush then turned to the topic of exemplary damages. The State’s original position had been that the approach of the President was correct: that is, it was correct to award only very limited exemplary damages having regard to the substantial award made in relation to compensatory damages and in order to avoid double compensation. However, almost immediately after embarking on this topic Mr. Cush said that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, simply because exemplary damages were not at all compensatory in nature. This was a major concession and a major alteration in the State’s case as argued in the High Court and at the commencement of the State’s submissions on appeal.
Mr. Cush submitted, however, that in the assessment of exemplary damages account had to be taken of the fact that the basis of the liability of the “paying parties” was vicarious and not direct. Mr. Cush immediately stated that there was no authority on this proposition but he submitted that it was nonetheless obviously true.
This is indeed a very far reaching submission. It is obvious that the State, Ireland, cannot itself permit perjury, conspire to frame a man on serious criminal charges or conspire to conceal misdeeds of that nature. It can only do so through the servants or agents of the State. Equally, it is beyond doubt that neither the present holders of the office of Attorney General and Commissioner of An Garda Síochána, nor their predecessors in 1994/95, were in any way personally aware of or complicit in the conspiracy which damnified Mr. Shortt. This is the usual position in claims of wrongful behaviour by the State. Accordingly, Mr. Cush’s submission amounts to saying that where a person suffers a tort of a sort egregious enough to attract exemplary damages, those damages should be reduced if the “paying party” is not himself personally responsible. In practise, that would mean a reduced scale of exemplary damages in respect of almost all misdeeds by public authorities grave enough to attract such damages in the first place.
Towards the end of his submissions on the first day of the hearing of this appeal, Mr. Cush referred to advice given to juries in defamation cases, that they should consider the purchasing power of any particular sum of money they had in mind to award. He made this reference in the context of discussion earlier in the day about the proposition that €500,000 would not buy a good two bedroomed flat in parts of Dublin. Mr. Cush said, however, that the purchasing power to be considered was that relating to premises in Donegal. However, at the start of his submissions on the second day, counsel said that he did not mean to imply that a lesser sum should be awarded to a person by reason of his being based in Donegal or any other rural location.
On the second day of the hearing, Mr. Cush first made the announcement already discussed about “something by way of apology to Mr. Shortt”. Continuing his submissions, Mr. Cush first submitted that the Common Law claims advanced by Mr. Shortt were simply “not proven” and that this could not be revisited on appeal. He stated again that awards of general damages in outrageous circumstances would very often lead to an award of aggravated damages separate from compensatory damages on the one hand or exemplary damages on the other. Here, however, the circumstances of outrage were “inherent in the claim”. Accordingly, damages in respect of this were assessed as part of the general damages and not as a separate heading of aggravated damages. He referred again to the passage at page 57 of the judgment of the learned President, which was the subject of extensive submissions from both sides.
Mr. Cush referred to two very contrasting cases. One was an English case of O’Brien where a person had been convicted of murder and imprisoned for twelve years, which period included virtually all of his twenties and his early thirties. An award of £200,000 sterling was made to him when this conviction transpired to have been wrongfully obtained. The case is very remarkable in that at one point the Crown contended that the award should be reduced to take account of the sustenance and accommodation provided to the claimant at public expense while he was imprisoned. I regard this award as inadequate by Irish standards.
In stark contrast to this was an Irish case of Bedford, unreported. There, Mr. Cush said a lady had recovered €100,000 for a wrongful arrest under s.30 of the Offences against the State Act within the past few years. She had not however been prosecuted and the detention extended to 48 hours only. To say this is not to belittle the wrong done to her or in any way to suggest that the damages were excessive.
At the conclusion of his submissions, Mr. Cush responded to questions on certain specific aspects of the case. He conceded that it was fair to say that Sheenagh McMahon’s statement alleging that her husband had confessed to her that he had perjured himself in the trial of Francis Shortt had been ignored. Equally, he said that it “seemed a likely inference” that the gardaí blocked temporary release for Mr. Shortt during his prison sentence. Mr. Cush also said that it seemed likely that the State, and not simply the gardaí, must have been involved in the offer made to Mr. Shortt while he was serving his sentence. It will be remembered that this was an offer of immediate transfer to an open prison, followed by early release, in consideration of his dropping his appeal. He said that neither on that subject, on the repeated denials of temporary release, nor on the absence of an apology until that day could he put the matter any further. He finally emphasised that Crofter Properties Ltd. v. Genport Ltd. [2005] 4 I.R. 28 “was an authority for the proposition that the award of compensatory damages had to be considered when assessing exemplary damages”.
Reply.
In reply, Mr. Hugh Mohan first dealt with a reference in the judgment of the learned President to evidence being “planted”. Mr. Mohan conceded that there was “no direct testamentary basis” for that finding. It appears from the judgment of the Court of Criminal Appeal that Garda McMahon had an agreement with a long standing garda informant to plant evidence but that the woman in question got drunk and did not turn up to do so. When McMahon was questioned by the Carty team about her involvement in the Point Inn episode, he said “She was never in the Point Inn, she was supposed to go there but she never went.” This, remarkably, was not pursued. Ms. McGlinchy said McMahon had told her he had got other, named, people to plant drugs for him.
Mr. Mohan said that the €500,000 award for general damages was, so disproportionate – “by a factor of far more than 25% – that it more than met the ‘no reasonable proportion’ test which Mr. Cush had set out”. He again emphasised that this sum approximately equated to the award in
de Rossa, and the State had accepted that this was a worse case than
de Rossa. He emphasised the role of the gardaí in frustrating temporary release and pointed to the uncontradicted evidence about what the prison governor told Mr. Shortt in this regard.
In relation to Mr. Cush’s final submissions based on the decision in
Genport Mr. Mohan said that the significance of that case was limited to the punitive element in an award of exemplary damages: the decision did not at all affect the assessment of such damages based on exemplary factors, which should proceed on the basis set out in the judgment of McCarthy J. in Conway.
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PART III
Findings on legal issues as to Damages.
Damages: General Principles.
It is appropriate to recall the general principles applicable to the assessment of damages in a case such as this one. This is essential background both to the consideration of the submissions made about the judgment of the learned President and, more generally, to the assessment of damages if the appeal against the learned President’s judgment is upheld.
This is a claim for compensation under a statutory provision. The statute is the Criminal Procedure Act, 1993, s.9 of which deals with “Compensation for miscarriage of justice”. Insofar as is relevant the Section provides;
“(9)(1) Where a person has been convicted of an offence and…
(a)(i) His conviction has been quashed by the Court
[of Criminal Appeal] on an application under
s.2… and
(ii) The Court… has certified that newly discovered fact shows that there has been a miscarriage of justice…
The Minister shall, subject to subsections (2) and (3), make compensation to the convicted person…
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of his conviction”.
In the present case, the plaintiff instituted an action for damages.
As appears from pages 2 and 3 of the judgment of the learned President, with the agreement of the parties he assessed “damages pursuant to s.9(2)of the Act in respect of the period commencing on the date on which the plaintiff was charged.”
Also by agreement, the learned President decided to “make a single award rather than to break the same down into a number of discrete heads of award in respect of the various headings of claim which could be maintained at Common Law”. The learned President pointed out that the plaintiff was making his claim pursuant to s.9 of the Act of 1993, and “further or in the alternative damages for breach of constitutional rights, conspiracy, negligence and breach of duty, malicious prosecution, false imprisonment, loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory power”. In this regard the learned President said:
“I do not propose making awards under any of those headings in respect of anything which occurred after the plaintiff was charged notwithstanding that the evidence would entitle a claim on all or any of such bases to succeed in the alternative to the claim under s.9. I will however have regard by analogy to the Common Law in relation to such claims insofar as the plaintiff claims damages and aggravated and/or exemplary damages in respect of his claim under s.29. I adopt this approach upon the basis that the parties are in agreement that I should do so.”
I would proceed on the same basis.
It would appear therefore that, by agreement, the plaintiff is entitled to damages under s.9, which include but are not limited to the various Common Law causes of action listed by the learned President. This is so in respect of all events happening after Mr. Shortt was charged: in respect of events predating that he is left to his Common Law rights.
As to the general principles of assessing damages, there was on the hearing of this appeal no dispute as to the authority of the decision of this Court in Conway v. Irish National Teachers Organisation [1991] 2 IR 305. There, Finlay C.J. had this to say at page 316ff:
“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) The 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 or recognition of the added hurt or insult to a plaintiff who has been wronged, and in part 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 Courts 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, and 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. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be regarded as constituting the same element”.
(Emphasis added)
In the same case, McCarthy J. in a passage beginning at p.526 said, referring to a case of established governmental or State wrongdoing:
“in such case, if in any case, it must be open to award exemplary damages. Where the wrongdoer is not a governmental or State agency the relevant consideration is amount rather than liability. The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such wrongdoing will not be tolerated and more to the point, will not be relieved on payment of merely compensatory damages. It does provide a windfall for the successful plaintiff; the application of the evidentiary rule to which I have referred may provide the most handsome windfall, that of freedom – to the person charged with a criminal offence.
The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendant’s in deliberately interfering with the plaintiff’s right have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the Courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also by definition a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages”.
(Emphasis added)
While other cases were cited in the course of the argument I am satisfied that Conway sets out the basic principles of our law on the fundamental classifications of damages, and that these are sufficient to deal with some of the fundamental matters in difference on the hearing of this appeal.
Aggravated and exemplary damages.
At p.57 of the judgment of the learned President, he had this to say about aggravated damages:
“It can be said that both aggravated and exemplary damages are awarded in respect of the external circumstances accompanying the cause of action. The former are measured on the basis of compensation. They represent additional compensation to a plaintiff where his sense of injury is heightened by the manner in which or the motive for which the act giving rise to the claim was committed. Such damages represent a recognition of the added hurt or insult to the plaintiff who has been wronged and a recognition of the cavalier or outrageous conduct of the defendant. They can extend to conduct subsequent to the conduct which gives rise to the claim. See Conway v. INTO [1991] 2 IR 305. Having regard to the evidence adduced on the application for a certificate pursuant to the Criminal Procedure Act, 1993, s.9(1) it is fair to say that the plaintiff was sacrificed in order to assist the career and ambitions of a number of members of the Garda Síochána. However the Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the Common Law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.
Turning to exemplary damages, the learned trial judge had this to say at p.58:
“As for exemplary damages I adopt from the Law Reform Commission report on aggravated exemplary and restitutionally damages a passage at paragraph 1.01:
‘The aim of exemplary damages is twofold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words to teach the wrongdoer that tort does not pay. An exemplary damages award may also be intended to vindicate the rights of the plaintiff or as Lord Devlin stated in Rookes v. Bernard to vindicate the strength of the law. It has the additionally incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach’.
While an argument exists as to the rationality of awarding exemplary damages where liability is vicarious, the Supreme Court had no difficulty in making such an award in McIntyre v. Lewis & Ors. [1991] 1 IR 121 in respect of a claim for assault false imprisonment and malicious prosecution against gardaí and the State. The plaintiff was awarded compensatory damages of £5,000 and exemplary damages of £20,000. However the Court must be also conscious that it does not award double compensation here. In the circumstances of this case there was an outrageous abuse of power by the garda officers involved. Evidence was planted. Perjured evidence was relied upon. It had not been expected by them that the plaintiff would be sent to prison but when he was they took no step to remedy the situation. I propose to mark this conduct. I am satisfied that the circumstances of this case fully justify an award of substantial exemplary damages. However again I must be conscious of the risk of double compensation. I propose to award the plaintiff under this heading the sum £50,000”.
Plaintiff’s entitlement to aggravated and exemplary damages.
As has been seen earlier in this judgment the principle issues on damages raised on the hearing of this appeal relate to the refusal to make any award of aggravated damages, on the basis that it would constitute double compensation on the one hand, and the reduction in the quantum of exemplary damages for the same reason, in order to avoid double compensation.
As we have seen, on the hearing of the appeal the State conceded that the second finding, that in relation to exemplary damages, is wrong. Specifically, it was conceded that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, because such damages were not at all compensatory in nature.
In my view, this was a well advised concession on the part of the authorities. The purpose of exemplary damages, as stated by McCarthy J. in the extract from his judgment quoted above, is “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages. It does provide a windfall for the successful plaintiff…”.
It appears to me to follow from this analysis, which is quite consistent with that of Finlay C.J. in the same case, where the award of exemplary damages is stated to be “… quite apart from [the] obligation… to compensate the plaintiff for the damage which he has suffered”, that indeed exemplary damages as they are currently understood are in a category quite separate from compensatory or aggravated damages. As is pointed out in the judgments in Conway the term “exemplary” is sometimes used interchangeably with “punitive”. The learned judges in that case explained the reason for their preferring the former term. On the facts of the present case, I would share that preference. Even if this plaintiff were awarded a truly enormous sum under this heading, I doubt if it could be described in any real sense as “punitive”. The money would not come from the pocket of any individual or even from any individual company or other business entity. It would in the end be levied on the tax payer and neither the gardaí who committed the tort, or any individual member of the force, would be one cent the worse for the award. Such an award cannot truly be described as punitive. On the other hand it seems quite possible to make an award which will “make an example of” the wrongdoers here and the legal entities responsible for them by marking in terms that everyone can understand the sheer evil of what was done and the detestation which the Courts, speaking for civil society in general, must feel and express for it. I will return to these topics below: for present purposes it is sufficient to note that they are quite separate in principle and reality from compensation: they are “quite apart from” compensation to use the phrase of Chief Justice Finlay. Accordingly I believe that it was incorrect to consider, in reduction of exemplary damages, the risk of double compensation.
On the topic of aggravated damages, the position of the State is a more nuanced one. The relevant part of the extract from the learned trial judge’s judgment above appears to me to be:
“… The Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.
All of the factors just listed relate to feelings and perceptions of the plaintiff. It is quite true to say that such consequential injury to feelings, which may be extreme, are included in the things which an award of “ordinary compensatory damages” are to redress. In the extract from the judgment of Finlay C.J. in Conway, above, he refers under the heading of ordinary compensatory damages to “mental distress, anxiety, deprivation of convenience or other harmful effects…”.
Aggravated damages, on the other hand focus, not on the feelings of the plaintiff, but on the actions and demeanour of the defendant. This emerges clearly from a consideration of the indicative list of three criteria on the basis of any one of which aggravated damages may be awarded. This is contained in the judgment of Finlay C.J. at p.317. Whether the commission of the tort occurred in a manner involving “oppressiveness, arrogance or outrage”, whether the wrongdoers conduct after the tort “such as a refusal to apologise or ameliorate the harm done or the making of threats to repeat the wrong” exacerbate the wrong; whether the conduct of the wrongdoer “in the defence of the claim of the wronged plaintiff” will aggravate the damages – all feature on the conduct of the defendant, their servants or agents and not on the plaintiff. Aggravated damages are compensatory damages increased by the presence or absence of the factors mentioned by Finlay C.J. or others. It is, therefore, wrong in principle to say that an award of compensatory damages which takes account of the plaintiff’s emotional distress (here, an extremely important factor: the man was driven to despair) exhausts the capacity for an award of aggravated damages.
But that is not the end of the issue on aggravated damages because Mr. Cush contends, in the alternative, that all of the factors which might otherwise ground an award of aggravated damages were, in the particular circumstances of the present case, “inherent in the claim”. If this submission means that because Mr. Shortt’s claim was for damage caused by a conspiracy by gardaí, he is debarred from an award of aggravated damages because the wrongdoers’ status as gardaí was essential to enable them to act as they did, I cannot accept it. It is quite possible to be damnified by perjury on the part of a person who is not a member of An Garda Síochána or the holder of any official position. Equally, it is quite possible to be deprived of one’s liberty, perhaps for years, (by, for example, terrorists as in the case of Mr. Terry Waite), without any ostensible process of law. Even apart from the status of the immediate wrongdoers, there are in my view many features of “oppressiveness arrogance or outrage” about the conduct of the “paying parties” in the present case. A series of false charges were preferred against an innocent man in the cynical expectation that he would, and would be advised to, plead guilty to at least one of them as part of a “semi-deal”. As a result of his refusal to do this he was sent forward to a higher court without sufficient evidence and eventually received a three year sentence. This caused some drunken distress to one of the wrongdoers but he absolutely refused “to apologise or to ameliorate the harm done”, as did his superior. Moreover, it appears to me, the offer to get him early release if he withdrew his appeal, thereby acknowledging his guilt, clearly and necessarily implied that if he did not do so he would be left to rot in jail which is clearly in my view a “threat to repeat the wrong”, or at least to continue it. Furthermore, the conduct of the wrongdoers after Mr. Shortt’s release was equally scandalous: his attempt to obtain the redress of having his conviction declared a miscarriage of justice was met with deliberate cynical and continuous perjury during the long hearing in the Court of Criminal Appeal.
From the foregoing it will be clear that I accept the submission of Mr. Mohan S.C. that Mr. Shortt “ticked all the boxes” for an award of aggravated damages. It would be sufficient if he ticked one. Furthermore, it seems to me that many of the features just mentioned are separate and apart from the initial conspiracy, even though they would not have occurred but for that seminal event. It was not necessary to the conspiracy, for example, that the plaintiff be denied temporary release, that an attempt was made to get him to acknowledge his guilt as the price of early release, or that perjured evidence was deployed in answer to his claim for redress.
Not only this is a case where aggravated damages, in addition to ordinary compensatory damages are available; I believe it is case where it is imperatively necessary in justice that they be awarded.
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PART IV
Damages suffered by Francis Shortt.
(i) General damages.
The following appears to me to be a summary list of the post charge damage (other than special damage) sustained by Mr. Shortt.
He was exposed to massively damaging publicity. He was brought before the District Court. He was apparently invited to acknowledge his guilt on a single charge failing which he would be sent forward for trial. When he refused, the prosecution procured his return for trial even though there was admittedly no sufficient case against him on the statements then to hand. He was returned for trial to the Circuit Court and tried on some only of the charges against him. He realised he was on risk of a prison sentence. A month before the first trial date he was served with additional evidence which, for the first time, made the case against him look truly formidable. He was put through a criminal trial which lasted for some days with accompanying publicity. He heard gardaí giving what he knew to be perjured evidence. He was convicted and sentenced to three years imprisonment. He was forthwith put in handcuffs, chained to a prison officer, and removed amidst a blaze of publicity. He was held in Mountjoy Prison in conditions that were not merely unpleasant but frightening. He continued to be held there or in Castlerea Prison. He was not afforded temporary release. He was subjected to many indignities (strip search etc.) incidental to his status as a prisoner. While in prison he heard of the disintegration of his business, the taunting of his children and associated problems and the impoverishment of his wife who sought prisoners’ wives allowance. He saw other prisoners being granted temporary release. He lost his appeal to the Court of Criminal Appeal. He lost all hope and was reduced to a state of despair and, at times, clinical depression. He suffered “relentless” stress. He suffered the physical conditions described in the medical reports of which the most serious was stress related cardiac illness. He was released a tainted and ruined man, with his premises burnt by terrorists reacting to his conviction.
Over and above the foregoing, but related to some of his sufferings, he was stigmatised as a drug criminal who had been caught. He suffered total loss of reputation. The Court has seen correspondence which makes it clear that he was in grave danger of losing his status as a Fellow and member of the Institute of Chartered Accountants. Though he had not practised this profession for years, it was a status in which he took legitimate pride and was part of his self image. Poignantly, some of his prison letters have “F.C.A.” after his name. The Institute was compelled to institute disciplinary proceedings against him but acted with generous forebearance and adjourned them from time to time at his request and eventually discontinued them after his successful appeal. He was painfully aware that he had few or no friends and that his family were suffering for his supposed misdeeds. He was put in the position of having to choose between maintaining his innocence at the cost of serving his full sentence less only statutory remission or procuring his release by effectively admitting guilt. The threat of further charges was used to pressurise him.
In a word, Mr. Shortt was stigmatised, imprisoned, suffered the loss of his reputation, his business and his ability to provide for his family. In a very literal sense, he was deliberately and maliciously degraded.
I do not accept that Mr. Shortt’s reputation has been wholly vindicated by anything that has happened since. If it were desired wholly to vindicate him, it is impossible to understand why the gardaí specifically would not have apologised long since, acknowledged his innocence, and condemned those directly responsible for his misery and degradation. Undoubtedly his reputation must have been beneficially affected by the declaration of a miscarriage of justice. In some oblique way it is probable that the revelation of numerous misdeeds, some almost incredible to the average person, by Donegal based gardaí have made Mr. Shortt’s account of being framed more believable. But he remains, however unfairly, a man of damaged reputation in the eyes of many. I fully accept what was said in evidence by Mr. John Ward on this topic.
Aggravation.
(ii) The following features seem to me to be amongst those which aggravate the damage indicated above. The conspiracy against Mr. Shortt was committed by persons wearing the uniform of the State. The gardaí who were party to it took advantage of the reputation of the Force, earned by generations of dedicated and honest members, and hoped that this reputation would carry them through the difficulties created by improbable aspects of their evidence. This hope was borne out. They acted out of pure self interest: there is little evidence of initial personal malice and none of “noble cause” corruption. Not content with the conviction and sentence they acted to deprive Mr. Shortt of temporary release as long as they could. Someone in authority very cynically arranged that he be offered early release in return for an admission of guilt. When Mr. Shortt first moved to have his conviction set aside on the grounds of newly discovered facts this was agreed to even though at that time he could point only to general evidence of misdeeds by gardaí in the Donegal division. When he moved to have his conviction declared a miscarriage of justice it was opposed on the basis of perjured evidence. The State continued to oppose the declaration of a miscarriage even though anyone listening to the garda evidence would have become deeply suspicious, to say the least. A vital piece of evidence relating to McMahon’s admission of perjury was withheld not only from Mr. Shortt but from the State counsel. When it came to light it transpired that nothing had been done about it. The documents discussed earlier in this judgment which formed the bulk of the newly discovered material were not communicated to Mr. Shortt or his advisers when they came to the attention of the garda authorities. Instead, his lawyers were left to piece his case together, which they did with remarkable diligence, making full use of the provisions for disclosure and discovery.
Not least of the aggravating factors must be the cynical plausibility with which the garda account was advanced both in the courtroom and in the media. Noel McMahon adopted the demeanour of a plain blunt man doing his sincere best despite the fact that his command of language sometimes failed him and, as he often claimed, that his memory was not good for detail. Kevin Lennon, as Superintendent, made himself available to the media at various times. Mr. Shortt had the unpleasant experience of seeing him giving a new television interview with the Point Inn premises as backdrop while he was in prison. He came across as a media-savvy sophisticated and talented garda officer who appeared gravely concerned about the drug problem and determined to do something about it and who had organised an undoubted coup at the Point Inn but ingratiatingly shared the credit with “the lads” under his command. Yet each of these men was so unscrupulous that, apart from anything else, they seriously frightened each other. As explained above, this led to their eventual unmasking. But when they were in their full power and authority their behaviour to Mr. Shortt was cynical, brutal, calculated and oppressive. Moreover, deep concern was felt in the Garda Síochána in relation to McMahon, who had been rendered unstable by drink, but no-one felt able to do anything about him. He even continued to carry his official firearm, which he was clearly unfit to do, because none of his superiors had the gumption or the moral authority to take it from him.
It must also be borne in mind that all of these things happened to a man of 60 years of age and upwards without any previous convictions. His age and previous good character have a number of consequences. First of all, it must be obvious that the rigours and terrors of imprisonment will bear harder on a 60 year old of good character and no previous exposure to the criminal law and the penal system than on a 25 year old with a history of violence and many previous convictions. Secondly, when his conviction was eventually declared a miscarriage of justice he was about 70 years old and, on the undisputed evidence, was physically, mentally and emotionally an older man than his chronological age would suggest. He simply had less time and less resilience to rebuild his life. Not only has he lost years that will never come again but the years after his torment abated are, by reason of his age, and the consequences of the wrong done to him, simply less useful for any attempt to regain his previous position in life, in business, and in society.
One particular event, chronicled in the prison diary, emphasised to me the appalling position in which the applicant here was put. When the still somewhat mysterious offer of transfer to an open prison and early release was made to him, Mr. Shortt took advice as to his position from several sources. He had a consultation, in prison, with a solicitor of undoubted competence who instructed Senior Counsel rightly regarded as a leading expert in the Criminal Law. Having considered the case with all appropriate diligence, counsel felt compelled to advise that he could see no legal course of action with any reasonable prospect of success and that, in the interest of his family, Mr. Shortt should consider the offer seriously. It is plain that he did so, at great emotional cost over a considerable period. I have no doubt that this was an additional agony, not easy to overstate.
This aspect of the case also emphasises how unpromising the case must have seemed when it was eventually taken on by Mr. John P. Ward, Solicitor, and Counsel retained by him. It was plainly an enormously onerous case and the chances of its success must have appeared very poor. Having regard to Mr. Shortt’s reduced circumstances, the prospect of any payment were extremely remote. The fact that it was brought to a successful conclusion has quite properly earned plaudits: but in my view the fact that so utterly unpromising a case, clearly requiring an enormous investment of time, was taken on in the first place on behalf of a person whom the events of the case themselves had rendered both a pauper and a pariah, reflects well on the legal profession.
The absence of any apology until the last moment is, perhaps, the final aggravating factor to be considered.
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PART V.
Exemplary Damages.
Role and attitude of the Gardaí.
I firmly believe that, in the public interest, a very substantial sum must be awarded under this heading in order to “make an example of” the wrongdoers here. The enormous power conferred on the gardaí, partly by law and partly by the (often well deserved) trust of the public, make what happened in this case nothing less than an obscenity. These gardaí were out of control: the whole affair graphically illustrates Mr. Justice Morris’s conclusion that the gardaí are “losing their status as a disciplined force”. (Morris Report, paragraph 13.101). What gardaí did to Mr. Shortt was so outrageous as almost to defy description but the garda force has yet to admit this. The former Garda Representative Association representative in Donegal told the Morris Inquiry, speaking of internal disciplinary procedures:
“It is the nature of the gardaí, we don’t name the names – we don’t want to get anybody into trouble in the Garda Síochána internal matters… we try our best to make sure – we are not going to be hanging our people”. (Morris Report, 12.117)
The outrageousness of what was done, the very long period required to discover it, the failure of An Garda Síochána itself expressly to acknowledge, and apologise for, the misdeeds of its members and the grave risk to society as a whole if gardaí behave as some of those involved in this case behaved, render it absolutely necessary to make a substantial award of exemplary damages. If there were no such award I firmly believe that Courts would be making themselves part of the problem rather than part of the solution. What happened to Mr. Shortt boggles the mind and almost defeats the imagination. A very significant award is necessary in order to “make an example of” the wrongdoers in a serious way, in the public interest.
In U.S. v. Salerno 481 U.S. 697, Mr. Justice Thurgood Marshall said:
“Honouring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty only injure those who are wrongfully accused and ultimately ourselves.”
It occurs to me that the principal shortcut to which we in this jurisdiction have sometimes been prone is that of according a very high degree of credence to garda evidence, simply because it comes from a garda source. This, in turn, is based on an instinct to trust material from this source because experience suggests it is usually reliable. Indeed, it is often hard to see what members of An Garda Síochána would have to gain by lying. Like most lawyers of my generation I have not infrequently heard trial judges, in cases where there was a conflict of evidence between gardaí and defence witnesses, inviting the jury to consider what the gardaí would have to gain by lying, thereby “putting their careers on the line”, or some such phrase.
If this case and others like it teach anything, it is that it does no favour to an institution like the gardaí to accord their members a special level of presumptive credence. On the contrary, this attitude offers a temptation to unscrupulous gardaí who may assume that, most of the time, the public, the media, judges and juries will accord credence to the garda account, even if it is in certain ways rather improbable. This case plainly demonstrates that some gardaí will lie, simply to benefit their own careers, and lie again, even on oath, to avoid the consequences of having told the first set of lies, and so on. It also reveals that the prospect of this being detected and acknowledged by the gardaí themselves is restricted by an attitude which dictates that “… we don’t name the names… we are not going to be hanging our people…”, in the words of a former G.R.A. representative in Donegal, cited above. Moreover, one must recall that a conspiracy of the sort featured in this case may develop into something much larger than originally intended. It is instructive to consider the attitude of the corrupt Detective Garda, McMahon: he fully expected the whole thing to end in the District Court, with a plea of guilty to one charge and a trivial penalty. He was astonished, even incredulous, that Mr. Shortt and his then solicitor would not play ball with this arrangement simply on the basis that he was not actually guilty. No doubt sincerely, in his own mind, he blamed Mr. Shortt’s original lawyers for all that happened afterwards. He cheerfully participated in the conspiracy to beef up the evidence, orchestrated by his superior, and cheerfully perjured himself in the Circuit Court. But he was horrified at the three year sentence whose injustice he seemed to have recognised though he spoke about it only when drunk. This led him only to slobber drunkenly about what he had done, to his wife and to Adrienne McGlinchy. In other words, Noel McMahon emerges as someone whose life experience has led him into a total disregard for truth, a ready willingness to perjure himself, and an expectation that others, even some amongst his superiors in An Garda Síochána, are just as unscrupulous as he.
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Legal aspects of quantification.
Certain aspects of exemplary damages have been considered earlier in this judgment, for the purpose of dealing with the submissions in relation to the judgment of the learned President. It is not proposed to repeat now what has already been said, but certain of the passages cited, notably from Conway, are clearly relevant in the assessment of the quantum of such damages.
In general, I accept what is said in the Law Reform Commission’s paper on aggravated, exemplary and restitutionary damages at paragraphs 101.02 and 1.03:
“Dicta of the Irish Courts referred to punishment and deterrence as equal and interlinked purposes of an exemplary damages award.”
In Conway v. I.N.T.O [1991] 2 IR 305, the Supreme Court found that the aim of exemplary damages was:
“… to punish the wrongdoer for his outrageous conduct, to deter him and others from any such conduct in the future, and to mark the Courts… detestation and disapproval of that conduct.” (At 509, per Griffin J.).
In Cooper v. O’Connell (unreported), Supreme Court, 5th June, 1997, Keane J. noted that “in developing the law of exemplary damages the Courts had been concerned with principles of public policy and with the need, in accordance with these principles, to make an example of the defendant”.
A similar dictum of McCarthy J. in Conway has already been cited. The Law Reform Commission also reflects these dicta, in my opinion, when it says at paragraph 1.06:
“It is also important to consider the role of exemplary damages in deterring highly reprehensible conduct, including violations of constitutional rights. In a case where there has been a serious breach of constitutional rights, which the Court considers warrants exemplary damages, there is a public interest in calculating an award that will effectively deter such a breach in the future.” (Emphasis added)
Despite the practise in certain United Kingdom cases, I consider it important that an award of exemplary damages should be recognised and specifically described as such, rather than merely forming an undifferentiated part of an award of general damages. To proceed in this way makes the exposition of the process whereby damages are arrived at more rational and transparent and also firmly identifies the exemplary aspect, and the precise matters in respect of which such damages are awarded. It has, as far as I know, always been the Irish practise to do this. I have already said that I prefer, at least in the context of a case such as this where the defendants are State Authorities, to regard the sort of damages now under discussion as exemplary rather than punitive, for the reasons given above. The State itself, or a State Authority, is simply not capable of registering personally the punitive aspects of such an award, as a private individual or company is. The classic modes of legal punishment are deprivation of liberty by imprisonment or of property by way of fine: these cannot meaningfully be imposed on a State authority. In the calculation of exemplary damages against a private entity, the means of the wrongdoer are to be taken into account: the reason for this is to graduate the penal element in accordance with the means of the offender. But no individual wrongdoer will lose anything by reason of the award in this case. It would be ludicrous, and plainly contrary to the public interest, to make an award against a public authority such as the Commissioner of An Garda Síochána so large as to reduce the capacity of An Garda Síochána to perform its statutory functions.
Accordingly, I am of the opinion that in a case such as the present where the defendants are public authorities, the principal consideration in calculating the amount of an award of exemplary damages must be the amount necessary “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages”.
But I wish to emphasise that, in an appropriate case, both the punitive and the exemplary heads of damage are available to a Court addressing a case on its individual facts.
Although it is important, for the reason set out above, that exemplary damages be awarded as a separate heading of damages and not included in an omnibus award, the same does not necessarily apply to aggravated damages. Exemplary damages are, and aggravated damages are not, in a category and in respect of an object, quite separate from compensatory damages. Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Organisation, much cited above. In that case, as it happens, the defendant was not a state authority but a trade union which, in pursuance of an industrial dispute, had interfered with the constitutional rights of certain school children. Mr. Cush cogently argued that the general damages had to be regarded as including what might be regarded as aggravated damages and also sought to avoid, or to minimise, any uplift in the compensatory damages on the basis that the paying parties liability was vicarious only. Certainly it is true that where a conscious and deliberate wrong is done by servants of the State, especially when a perversion of justice is brought about by those charged with enforcing the law, aggravated damages are very likely to arise. This seems to be inevitable by virtue of the matters which Finlay C.J. regarded as calling for an increase in compensatory damages: elements such as oppressiveness arrogance or outrage, and the conduct of the wrongdoer after the commission of the wrong and the conduct of the wrongdoer in legal proceedings. This case, unfortunately, features elements of that kind which do not entirely, and in some cases do not even substantially, overlap with the original wrong. These have been sufficiently outlined above. In the present case I consider, and I understand that my colleagues agree, that a single award should be made in respect of compensatory and aggravated damages. It will not always be appropriate to do this and in particular the case for making separate awards is stronger in a trial court (whether with or without a jury) so that if there is an appeal the elements of the total award can be precisely ascertained. But it is not intended to lay down any hard and fast rule in this regard.
Furthermore, although this case has many aspects which imperatively call for an award of exemplary damages it must be obvious that such damages will not automatically be called for simply because there is a finding that a particular conviction amounted to a miscarriage of justice. Here, the newly discovered facts, principally the preserved but concealed documents and the evidence of Sheenagh McMahon, clearly reflected on the conduct of the gardaí in the prosecution, both before and during the court hearing. But it is possible to hypothesise a case where, for example, a new scientific discovery or insight factually undermined forensic evidence important to the conviction, and which was advanced at the time of the trial in good faith. In such circumstances, if a new evidence were fairly dealt with by the prosecuting authorities, there might be no cases for an award of exemplary damages. The example taken, of new scientific evidence, is not intended to be exhaustive on the circumstances where no exemplary damages would be called for.
The purpose of “truly making an example” of the persons legally responsible is above all to deter any repetition of the sort of conduct which attracts those damages in the first place. In the circumstances of this case it is necessary to consider, as a part of this objective of deterrence, that Mr. Shortt’s vindication has been very long in coming in part because of a lack of urgency in the investigation of his case after conviction. This is illustrated, and not exhaustively, by the effective failure to investigate Mrs. McMahon’s perjury allegation, and by the effective loss for a long period of the physical record of that allegation. Moreover, there has been a consistent attempt by the State Authorities to deal with this case on the most minimal basis possible. Firstly it was apparently hoped that a promise of early release would induce Mr. Shortt to drop his appeal. If he were believed to be guilty, it is difficult to see why early release from a sentence of three years imprisonment would be thought appropriate. If it were appropriate to grant him early release it is impossible to see why a condition that he should drop his appeal against his conviction should be attached to such release. Secondly, the Director of Public Prosecutions (who had, remarkably, not then considered Mrs. McMahon’s allegation) agreed to the quashing of Mr. Shortt’s conviction, for no particular stated reason. The application to have Mr. Shortt’s conviction considered, not merely unsafe or unsatisfactory, but a miscarriage of justice, was contested tooth and nail by the Authorities, vital information withheld from State Counsel, and perjured evidence deployed.
It is not easy to find precedents to guide the Court in awarding damages, whether compensatory, aggravated or exemplary in a case like this. One must start with the State’s concession that Mr. Shortt’s case was the worse case of State oppression of an individual citizen of which the authorities were aware. One must bear in mind the case of Bedford, referred to above, where there was an award of £100,000.00 compensation for a wrongful arrest under s.30 of the Offences against the State Act, with forty-eight hours subsequent detention. One is painfully aware that the case most similar to the present, in that it featured imprisonment for a period of years following a wrongful conviction is that of Edward Noel Kelly and the persons charged with him, referred to above. But those cases were settled, so that there is no court decision on the appropriate level of damages. Moreover, the only information available as to the amount of the settlement is from unauthenticated newspaper accounts, which cannot influence the Court’s decision here. It is of course true that the State must be aware of the amount of those settlements, but it may be that it is precluded, by a confidentiality agreement, from revealing them.
The case of Mr. Proinsias de Rossa, referred to above, was one of an appalling defamation, printed and disseminated very widely. Drug dealing, or the enjoyment of the proceeds of drug dealing, was part of the utterly false allegation made in that case. But it was unaccompanied by imprisonment and ritual degradation of the victim such as happened in this case and it did not feature the abuse of State power, which was the mechanism of the destruction of Mr. Shortt. Moreover, Mr. de Rossa’s circumstances were such that he was enabled to recover from the attack on him in a much more effective way than Mr. Shortt has been able to do.
There is no Irish authority to suggest that the award of exemplary damages is limited to the amount of the award of compensatory damages or some lesser sum. In McIntyre v. Lewis [1991] IR 121, the plaintiff was assaulted by some gardaí in Birr, Co. Offaly. They then charged him with assault and released him on bail. He was sent forward for trial on a charge of assaulting a guard but was acquitted. He then sued the Gardaí and the State Authorities. A jury awarded £5,000 damages for assault and false imprisonment and £60,000 damages for malicious prosecution. The Supreme Court altered this award to £5,000 for compensatory damages and £20,000 exemplary or punitive damages in respect of malicious prosecution. O’Flaherty J., while concurring in this award, expressed the view that an award of exemplary damages “should properly be a fraction rather than multiple of the amount awarded by way of compensatory damages”. I wish to say that I cannot agree with this statement. It is inconsistent with the actual result in McIntyre v. Lewis. But, more importantly, it is contrary to what I am satisfied is the true principle of aggravated damages in an action against State Authorities: that it be sufficient “truly to make an example” of the wrongdoers and that it be effective to deter a repetition. I cannot agree that the sum awarded in the High Court in this case is even remotely sufficient in either regard. It must however be recalled that that award was made on the basis of acceptance of a submission which the State resiled from on this appeal.
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PART VI
Special Damages.
The assessment of special damages in this case is not an easy one. There was somewhat conflicting expert evidence from Mr. Desmond Peelo and Mr. Ray Jackson, Chartered Accountants, and from Messrs. John P. Younge and Messrs. Morrisseys, two firms of Auctioneers and Valuers each of which has acknowledged expertise in the valuation and sale of licensed premises. All the witnesses mentioned are highly skilled and highly reputed practitioners.
There is no doubt that Mr. Shortt has lost the stream of income from the Point Inn, and the Point Inn premises themselves, sold by a receiver appointed after his conviction. The premises had by then been burnt by the IRA and have now been restored by the purchaser to a good condition at a cost of about €750,000. Mr. Shortt is also, he claims, at a loss of the potential income from a caravan site adjacent to the Point Inn which he had planning permission to develop. Mr. Shortt’s experts were of the opinion that this scheme would have been profitable in itself and, just as significantly, would have considerably increased the sales in the adjoining pub.
There are a number of factors which make the calculation of special damages difficult. The premises themselves are unusual, being remote from other facilities or residences, though of course within an easy drive of the City of Derry. They are maritime but not quite beach front premises, a fact which is relevant because everyone agreed that there is a premium for beach front premises, especially caravan parks. It was not easy to find direct comparators for the values of the interest in the land due to these features: in particular, I am satisfied that the “sensational” price obtained for the beach front caravan park in Nairn, Portnoo, Co. Donegal, is not appropriate as a guide. Calculations of loss of income are also difficult because, as Mr. Peelo said:
“It is difficult to be definitive as to the estimates of income. The disarray and the affairs of the Point Inn in the mid 1990s was such as to result in the available financial information being unreliable as a basis for financial calculations”.
Equally, this aspect creates considerable uncertainty on the question of whether or not Mr. Shortt would have been in a financial position to fund the development of the caravan park as a venture in itself and as a source of valuable additional custom to the pub.
A further complicating factor is the limited nature of the trade carried on in the public house. Though the Shortt family had been in possession of these premises since about 1930, the nature of the trade had changed a good deal. To some extent it was perhaps in a state of flux: not long had elapsed since the refurbishment and reopening of the premises which occurred when Mr. Shortt came into sole possession of them following the death of his brother. However, the fact is that the premises had come to trade mainly as an entertainment venue rather than as a public house as that term is traditionally understood. The licensed premises traded only at the weekends and ran a discotheque one night a week. There was some evidence, referred to in the judgment of the learned trial judge, that this reflected the fact that 90% of the clientele came from Northern Ireland: having regard to the fact that Derry was the major centre of population near the premises this is probably true. It illustrates the limited nature of the trade which it was profitable to carry on and this, of course, has consequences for the assessment of the potential.
That, indeed, was another subject of major dispute. The State’s experts were inclined to value the premises by virtue of their capital value calculated principally on the basis of a multiple of turnover. Mr. Peelo and Mr. Younge were keen to build in a figure for potential, and the learned trial judge did this as best he could on the somewhat unsatisfactory evidence which was all that was available to him.
Having carefully considered the reports, the evidence and the judgment, I am not satisfied that it has been shown that the learned trial judge was in error in any of these respects including the deductions which he made. Accordingly, under this heading, I would uphold the findings of the learned trial judge. I would also uphold the fairly nominal assessment of €5,000 in respect of general damages at common law in respect of which there are certain difficulties of proof.
PART VII
Awards and Order
Based on the matters set out above at some length, and bearing in mind the concession that this case is the worst of its kind of which the State Authorities are aware, and considering the unchallenged evidence of Mr. Shortt and those who gave evidence on his behalf, I concur in the awards of damages under each of the relevant heads in the sums proposed by the learned Chief Justice.
Order.
For the reasons set out above I would order the payment by the defendants jointly and severally to the plaintiff of the total sum of four million six hundred and twenty-three thousand eight hundred and seventy-one euro. (€4,623,871.00).
Ahmed v Health Service Executive
[2007] I.E.H.C. 312 Judgment of Miss Justice Laffoy delivered on 6th July, 2006.
The parties
The plaintiff has been a registered medical practitioner in this jurisdiction since 13th July, 1990. He became a fellow of the Royal College of Surgeons in Ireland in December, 1993. In July, 2000 he was appointed by the North Eastern Health Board as a locum consultant surgeon at Louth County Hospital, which is located in Dundalk, for a fixed term commencing on 14th August, 2000 and ending on 2nd October, 2000. He continued in the employment of the North Eastern Health Board on successive contracts of employments for fixed terms for in excess of three years. When the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act of 2003) came into force, the plaintiff was a fixed-term employee of the North Eastern Health Board.
The defendant is a statutory corporation established by the Health Act, 2004. Since 1st January, 2005 the defendant has exercised the statutory functions formerly exercised by the North Eastern Health Board in the North Eastern Area, which, I understand, includes counties Louth, Meath, Monaghan and Cavan. In this judgment references to the defendant include the North Eastern Health Board in relation to events which occurred prior to 1st January, 2005.
It is the effect of the Act of 2003 on the plaintiff’s employment with the defendant which is at the core of these proceedings.
The Act of 2003
The Act of 2003, which came into force on 14th July, 2003, gives effect in this jurisdiction to Council Directive 99/70/EC of 28th June, 1999 on the Framework Agreement on Fixed-Term Work (the Directive). The provision of the Act of 2003 which primarily determines the issues in these proceedings is s. 9. Sub-section (1) of s. 9 provides as follows:
“Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.”
Sub-section (3) deals with a purported contravention of sub-s. (1) and provides:
“Where any term of a fixed-term contract purports to contravene subsection (1) … that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.”
It is common case that the plaintiff was a “fixed-term employee” of the defendant on 14th July, 2003 and had been since 14th August, 2000 and that one month after the coming into operation of the Act of 2003 he completed his third year of continuous employment with the defendant.
In order to determine the impact of s. 9 on the plaintiff’s employment with the defendant, it is necessary to look at his contractual relationship with the defendant more closely.
The plaintiff’s contractual relationship with the defendant
The plaintiff’s initial appointment by the defendant was made by a brief letter from the acting hospital administrator of Louth County Hospital dated 26th July, 2000, in which the plaintiff was informed that it was proposed to appoint him –
“… to the post of Locum Consultant Surgeon at the Louth County Hospital, Dublin Road, Dundalk from 9.00 a.m. Monday 14th August, 2000 until 9.00 a.m. Monday 2nd October, 2000.”
The first renewal of the plaintiff’s contract was by letter dated 13th September, 2000 from the hospital administrator, which merely informed the plaintiff that his “temporary contract as a Locum Consultant Surgeon” had been extended for a further three-month period. Subsequent letters of renewal were similarly brief. After the Act of 2003 came into force, but before he had completed his third year of continuous employment with the defendant, the plaintiff was informed by letter dated 23rd July, 2003 that his contract had been extended for a further six months up to 2nd February, 2004. By letter dated 27th November, 2003, which recorded that the plaintiff’s current contract would expire on 2nd February, 2004, the plaintiff was informed of a further extension of his contract to 30th June, 2004. By further letter dated 23rd January, 2004, which incorrectly stated that the plaintiff’s contract would expire on 2nd February, 2004, the plaintiff was informed that his contract was extended to 1st August, 2004. There is consensus between the parties that it is at this point that s. 9(3) of the Act of 2003 impacted on the plaintiff’s contractual relationship with the defendant. The effect of that provision was that the term which purported to extend the plaintiff’s contract to 1st August, 2004 was of no effect and from 30th June, 2003 he was deemed to be employed under a contract of indefinite duration.
The plaintiff’s initial appointment was as a locum within the ordinary meaning of that abbreviated version of the expression “locum tenens” – a person who stands in temporarily for someone else of the same profession, especially a cleric or a doctor. (cf. The New Oxford Dictionary of English, O.U.P., 1998). He was standing in for Ms. Ursula Mulcahy, who, as I understand the position, was an office holder of the post of Consultant Surgeon in Louth County Hospital and who was on administrative leave when the plaintiff was initially appointed. During the currency of the plaintiff’s fixed-term employment Ms. Mulcahy retired from her post. It is not clear on the evidence when precisely this occurred, but it occurred before October, 2003 because one of the posts mentioned in the advertisement of October, 2003 referred to later had been occupied by her. After her retirement the plaintiff continued to perform his duties as consultant surgeon as he had done previously.
The terms and conditions of employment of consultants who are appointed to permanent positions within the health service are governed by what is colloquially referred to as the Consultants’ Common Contract. Although this was not expressly agreed between the plaintiff and the defendant in advance of, or during, his employment, the provisions of the Consultants’ Common Contract in relation to remuneration, expenses, reimbursement of professional indemnity insurance premia while that arrangement lasted, annual leave and such like were applied by the defendant to the plaintiff during the currency of his successive contracts with the defendant. The provisions in relation to engaging in private practice were also applied to him until they were effectively withdrawn during the last quarter of 2004. The plaintiff accepted the application of the provisions to him, although he has never at any time been tendered, and has not executed, a contract in writing in his favour in the terms of the Consultants’ Common Contract.
It is clear on the evidence that the defendant obtained approval from Comhairle na nOspideal to the plaintiff’s appointment as a locum consultant surgeon to cover the absence of Ms. Mulcahy. The plaintiff was registered with the Voluntary Health Insurance Board (VHI) with effect from August, 2000 and was assigned a VHI code number. The defendant notified VHI of the renewal of his contract as it occurred. In March, 2004, following the retirement of Ms. Mulcahy, VHI sought confirmation from the defendant that the plaintiff was still occupying the post and sought a copy of the letter from Comhairle na nOspideal confirming that his temporary post was approved. By letter dated 9th April, 2004 the defendant notified VHI that the plaintiff was still “occupying the post of General Surgeon in Louth County Hospital and his contract has been extended to the end of June, 2004”.
More than a year before the purported renewal of the plaintiff’s fixed-term contract from 30th June, 2004 took effect by operation of law as a contract of indefinite duration proposals were being considered for the reorganisation of the delivery of general surgical services in County Louth. In April, 2003 the three permanent consultant general surgeons based in Our Lady of Lourdes Hospital, Drogheda put forward a proposal for a single department of general surgery for County Louth at the Drogheda and Dundalk hospital sites with six consultant surgeons with varying specialty interests, each of whom would provide surgical services in both hospitals. The proposal, and its subsequent implementation, was not merely concerned with the deployment of consultant surgeons within County Louth but it was concerned with surgical support by non-consultant hospital doctors, infrastructure, such as the provision of a second operating theatre at Dundalk, necessary complementary manpower, such as the appointment of a third consultant anaesthetist at Dundalk, and such like. The proposal was supported by the Royal College of Surgeons, which uses Our Lady of Lourdes Hospital as a training hospital, and Comhairle na nOspideal, which gave approval for the additional consultant posts. On 4th May, 2004 the defendant issued a press statement announcing that, with effect from 1st July, 2004, surgical services at Drogheda and Dundalk were being reorganised. The plaintiff’s evidence was that he first heard of the reorganisation as a result of media reports. The reorganisation came into force on 1st July, 2004 but is not yet fully operational.
In October, 2003 the Local Appointments Commissioners, the statutory body which at that time was charged with the selection of candidates for appointment to consultant posts with health boards, advertised three posts for consultant general surgeons with the North Eastern Health Board, two with a special interest in gastro-intestinal surgery and one with a special interest in paediatric surgery. The plaintiff, who had been carrying out gastrointestinal surgery at Dundalk, applied for a post with a special interest in gastrointestinal surgery, but he was not successful. In my view, that outcome has no bearing on the determination of the issues with which the court is concerned in these proceedings.
The last formal written notification which the plaintiff received from the hospital administration extending his contract was the letter dated 23rd January, 2004. As I have stated, after 30th June, 2004 by operation of law the plaintiff was employed on a contract of indefinite duration. It is clear from the evidence that the position of the defendant’s management as of early July, 2004 was that the plaintiff’s contract would continue until 14th December, 2004 when it would terminate and he would be replaced by a permanent consultant surgeon who had been appointed through the Local Appointment Commissioners selection process. By letter dated 21st September, 2004, the plaintiff wrote to management of the defendant referring to the Act of 2003 and indicating that he wished to avail of his right to be given a contract of indefinite duration (i.e. permanent).
During September, 2004 the plaintiff was undoubtedly employed by the defendant on a contract of indefinite duration by operation of law. This was not immediately recognised by the defendant. In fact, by letter dated 22nd October, 2004, the management of the defendant informed the plaintiff that he would “finish as Temporary Consultant Surgeon at Louth County Hospital” on 14th December, 2004, the cessation of his position being necessary to enable the full-time consultant surgeon to commence as of 15th December, 2004. It was noted that the plaintiff would like to remain in the employment of the defendant, notwithstanding the termination of his temporary consultant position, this would be discussed and he would be reverted to as soon as possible. Shortly afterwards, management apprised the plaintiff of the timetable for allocation of non-consultant surgical personnel at Louth County Hospital which was to come into effect on 8th November, 2004. The plaintiff was instructed to stop taking on new referrals at his clinic and to work towards the closure of his clinical work due to the fact that his contract would terminate on 14th December, 2004.
At that stage, the plaintiff instructed his solicitor, who wrote to the defendant on his behalf on 9th November, 2004 indicating that any attempt to terminate his employment would be strenuously opposed. The substantive response to this letter was a letter dated 1st December, 2004 from the defendant’s solicitors. In this letter it was stated that the defendant intended to offer the plaintiff the position of consultant surgeon within its service, at the same time recognising his continuity of service with the defendant. His position would not be terminated on 14th December, 2004 and he would remain at Louth County Hospital until 31st December, 2004. On his return from leave in mid-January, 2005 he would be employed by the defendant as a consultant surgeon on an ongoing basis, but the location of his employment would be a matter for discussion but might not be at Louth County Hospital. The position adopted by the plaintiff in response, and maintained by him thereafter, was that he had, by operation of law, a contract of employment of indefinite duration as a consultant surgeon at Louth County Hospital.
On his return from leave in January, 2005 the plaintiff was not allowed by the defendant to return to Louth County Hospital. In fact, he has not worked for the defendant in the North Eastern Area since then. He has, however, remained an employee of the defendant and has been paid the appropriate basic remuneration under the Consultants’ Common Contract since January, 2005. By reason of not being permitted to work on a long-term basis at Louth County Hospital or any other hospital site under the aegis of the defendant, he has been deprived of the entitlement to engage in private practice which he previously enjoyed, which was on the terms stipulated in the Consultants’ Common Contract. However, he has taken up short-term assignments as a locum surgeon both within and outside the jurisdiction with a view to mitigating his loss.
Since December, 2004 the plaintiff has resisted a number of attempts by the defendant to post him to positions which he considered did not accord with his contractual entitlement. At the hearing of these proceedings various factual matters were explored: why a particular approach was adopted by the defendant in relation to the plaintiff’s position at a particular time; whether there was a divergence of views between management and the consultants as to how the predicament which the plaintiff presented should be addressed; whether there were alternative arrangements which the defendant could have made in relation to its surgical consultant manpower which would have properly accommodated the plaintiff; and whether other personnel in a similar position to the defendant were treated differently to the defendant. While these matters may be relevant to the remedy to which the plaintiff is entitled, if the defendant is in breach of the plaintiff’s contract. They are not relevant to the issue of the defendant’s contractual liability to the plaintiff. At this juncture, by agreement of the parties, I am only concerned with determining the plaintiff’s contractual terms and whether the defendant is in breach. Accordingly, I do not consider it necessary to express any view on those matters. All I consider it necessary to do is to outline how the defendant proposed posting the plaintiff.
What happened was as follows:
(1) After two months without any posting, by letter dated 11th March, 2005 the defendant gave what was in effect a direction to the plaintiff to undertake a six-month contract from 1st April, 2005 for a consultant surgeon which was available in Monaghan General Hospital. The plaintiff was informed that at the conclusion of the contract his position would be reviewed, but his employment would be on a continuing basis. The plaintiff’s response, through his solicitor, was that this direction did not meet his entitlement. He did not accept that it was necessary to relocate him within the North Eastern Area and he did not accept that he could be compelled or required to undertake short-term contracts at Monaghan General Hospital or elsewhere. It was at that stage, 31st March, 2005, that the defendant, through its solicitors, adopted the position that the terms of the plaintiff’s contract of indefinite duration were those of the Consultants’ Common Contract under which he was employed in the defendant’s North Eastern Area, and that, therefore, he did not have a right to remain at Louth County Hospital. Clause 8.1 of that contract, which I will quote later, was not expressly invoked nor, in my view, was it invoked by implication. It was indicated that the plaintiff was required to comply with the direction contained in the letter of 11th March, 2005 and that, following the conclusion of the requirement at Monaghan Hospital, he might “again be relocated in accordance with the Consultants’ Common Contract”. The plaintiff did not go to Monaghan.
(2) By letter dated 30th May, 2005, the defendant apprised the plaintiff that there was a need for a consultant surgeon at Cavan General Hospital, the position to commence on 7th June, 2005 and to be “available until further notice”. The plaintiff was requested to confirm “by immediate return [his] confirmation of start date”. The plaintiff maintained the position that he was entitled to be employed as a permanent consultant based at Louth County Hospital. He did not take up the position in Cavan.
(3) Section 14(1) of the Act of 2003 provides that an employee may present a complaint to a rights commissioner that his employer has contravened a provision of the Act of 2003. The plaintiff brought such a complaint on 26th January, 2005 that he had been removed and denied his entitlement to his permanent consultant surgeon position at Louth County Hospital. The complaint was heard by the Rights Commissioner on 18th May, 2005 and the hearing was resumed on 10th June, 2005. The Rights Commissioner gave her decision on 11th August, 2005. She found, on the basis of the evidence presented, that the plaintiff’s complaint was well founded. Under the heading of “Redress” she gave the following direction:
“While the respondent confirmed, in March, 2005, that the complainant has been employed on a contract of indefinite duration with effect 30th June, 2004 and that the terms of that contract are the Consultants’ Common Contract I require the respondent to confirm in writing to the complainant that with effect 30th June, 2004 he has been employed on a contract of indefinite duration i.e. on a permanent and pensionable basis under the same terms and conditions of employment as other permanent and pensionable consultants.”
Following the decision of the Rights Commissioner, on 30th August, 2005 the plaintiff’s solicitor wrote to the defendant’s solicitors indicating that the plaintiff would be attending at Dundalk Hospital the following week on 7th September, 2005 to resume his duties which would be on the identical terms and conditions as he was previously employed, including theatre rota, outpatients clinic, endoscopy and on-call duties, in December, 2004. On 6th September, 2005 the defendant’s management informed the plaintiff that he should not commence duty on the ground that the defendant’s interpretation of the Rights Commissioner’s decision was at variance with the plaintiff’s. On 30th September, 2005 the defendant wrote to the plaintiff in the precise terms which the Rights Commissioner had directed, namely, that from 30th June, 2004 the plaintiff had been employed “on a contract of indefinite duration i.e., on a permanent and pensionable basis under the same terms and conditions of employment as other permanent and pensionable consultants”. It was stated that the plaintiff would be contacted “shortly regarding a position within the HSE in accordance with your contractual terms”.
(4) It was not until 9th November, 2005 that the plaintiff was told what his position within the defendant’s organisation in accordance with his contractual terms would be. By letter of that date he was informed as follows:
“… you will be employed by the HSE in the North Eastern Area attached to the Joint Department of Surgery at Louth Meath Hospital Group. Your role will be to provide ongoing locum cover to six consultant surgeons in the Joint Department of Surgery. You are required to report to duty on Monday, 21st November, 2005 to the Group General Manager’s Office, Our Lady of Lourdes Hospital, Drogheda. As was confirmed …, you are employed on a contract of indefinite duration i.e. on a permanent and pensionable basis.”
Once again, Clause 8(1) was neither expressly nor, in my view, impliedly invoked. The plaintiff’s response, through his solicitors, was that the position he was being allocated to was a completely different and inferior position to the one he carried out previously and was unacceptable to him. The plaintiff remained ready, willing and able to return to work as a consultant surgeon at Louth County Hospital on the same terms and conditions as he enjoyed when his contract first became a contract of indefinite duration. It was intimated that the plaintiff intended instituting legal proceedings.
(5) These proceedings were instituted by plenary summons which issued on 23rd November, 2005.
Broadly speaking, the defendant has not moved from the position evinced in the letter of 9th November, 2005. However, in these proceedings, the defendant has sought to justify adopting that position, both historically and currently, on the basis of Clause 8.1 of the Consultants’ Common Contract, which deals with work location, although prior to the initiation of these proceedings Clause 8.1 was not invoked. Clause 8.1 provides as follows:
“You will be based at [location indicated in Comhairle letter of approval]. You will be required to conduct clinics and out patient work as appropriate to your specialty both at your base and at [designated specific locations of the clinics and out patient work]; these locations may be changed by [employing authority] but they will not be outside the area served by [the hospital or hospital group] for your specialty without your consent, nor will the overall duration or frequency be changed without your consent. The location, frequency and duration will not be changed by you except with the approval of [the employing authority]. You will not be transferred from [the hospital or hospital group] without your consent unless major changes take place in the character of the work being carried out there, in which case arrangements will be made to offer you an appropriate alternative appointment, including an option to change category of appointment without competition, in another hospital. In such a case, removal expenses calculated in accordance with the Removal Expenses Scheme for health boards and local authorities will be paid, if claimed.”
With one qualification, the plaintiff has not moved from the position he adopted in response to the letter of 9th November, 2005. It was argued on his behalf that Clause 8.1 is inconsistent with the express terms of his contract by operation of law and does not apply to him. Alternatively, if it does apply, it was argued that there have been no “major changes … in the character of the work” being carried out in Louth County Hospital, so that the portion of Clause 8.1 which empowers the employer to transfer the employee consultant without his consent, does not come into play at all in these proceedings. The one qualification is that counsel for the plaintiff made it clear that, if the court were to find that Clause 8.1 applies to the plaintiff’s contract, and if, as a matter of fact, the defendant is entitled to invoke the power to transfer the plaintiff without his consent, an appropriate alternative appointment would be acceptable to the plaintiff. However, the plaintiff asserts that he has not received an offer of an appropriate alternative appointment to date.
There is no lack of clarity or ambiguity on the evidence as to what the position of the plaintiff would be as regards being able to avail of the provisions of the Consultants’ Common Contract which entitle a consultant to engage in private practice, if he were to accede to performing the role assigned by the defendant to him in the letter of 9th November, 2005. The evidence is that he would not be recognised by VHI, the largest private medical insurer in the State. While he might be able to generate some private practice, specifically related to initial out patient consultations, he would not have dedicated theatre facilities of his own nor dedicated diagnostic facilities, so that his ability to generate private practice would be limited.
In concluding this outline of the history of the plaintiff’s contractual relationship with the defendant, I think it is only fair to the plaintiff to record that I consider that he has been treated by the defendant in a shoddy manner, both before and in the conduct of these proceedings. In its response to an application by the plaintiff for an interlocutory injunction at an early stage in these proceedings it was alleged by the defendant that the plaintiff had been guilty of insubordination in not complying with the defendant’s directions which I have referred to earlier and that this was a disciplinary matter which the defendant would be forced to address. Failure to obey a lawful instruction and to turn up for work was pleaded by the defendant in its defence as constituting negligence, including contributory negligence, on the part of the plaintiff. However, in the course of the hearing, the defendant, properly in my view, withdrew those allegations and apologised to the plaintiff for making them.
The proceedings: objection in point of law
Prior to the initiation of these proceedings the plaintiff appealed to the Labour Court from the decision of the Rights Commissioner under s. 15 of the Act of 2003. That appeal, which relates to some, not all, of the findings and determinations of the Rights Commissioner, stands adjourned pending the outcome of these proceedings. However, the defendant has taken an objection in point of law to these proceedings, contending that the plaintiff is estopped from bringing them where he has invoked the statutory scheme for relief provided for in the Act of 2003.
In summary, the reliefs claimed by the plaintiff, in addition to costs, in these proceedings are the following:
(a) a declaration that the plaintiff is entitled to be employed by the defendant as a consultant surgeon based at Louth County Hospital on a permanent and pensionable basis;
(b) various injunctions, both prohibitory and mandatory, formulated in a manner designed to enforce the contractual entitlements which the plaintiff contends for and, in particular, his entitlement to be based at Louth County Hospital and to engage in private practice;
(c) orders directing the defendant to pay to the plaintiff monies forgone by him in the events which have happened, for example, in respect of overtime and “on-call” allowance;
(d) damages for breach of the plaintiff’s existing contract of employment;
(e) damages in tort for alleged negligence and breach of duty and libel;
(f) aggravated and/or exemplary damages; and
(g) pre-judgment interest at the court rate of interest.
While I have quoted an extract from the decision of the Rights Commissioner earlier, I have done so for the purpose of putting in its proper context the letter of 30th September, 2004 from the defendant to the plaintiff. It is important to emphasise that in these proceedings the court is not concerned with whether the decision of the Rights Commissioner was correct on the evidence presented to her or in law. These proceedings are separate proceedings which fall to be determined in accordance with the evidence adduced before the court and the submissions made, if the defendant’s objection in point of law is not well founded. Having said that, there is undoubtedly an overlap between what the Rights Commissioner decided and what the court has been asked to decide in these proceedings. The Rights Commissioner directed the defendant to pay compensation to the plaintiff in the sum of €5,000 in respect of loss of “on-call allowance”. She also directed the defendant to pay the plaintiff compensation in the sum of €15,000 in respect of the defendant’s breaches of the Act of 2003. Further, she found, or at any rate it is the plaintiff’s perception that her decision could be interpreted as including a finding, that the Consultants’ Common Contract in its entirety, including Clause 8.1, applies to the contract between the defendant and the plaintiff. The plaintiff has appealed to the Labour Court against that finding or apparent finding.
In answer to the defendant’s objection in point of law, it was submitted on behalf of the plaintiff that the jurisdiction of a rights commissioner under the Act of 2003 is strictly limited to complaints that the employer has contravened a provision of that Act, which on the facts of this case is limited to the question whether the defendant acknowledged the indefinite duration, that is to say, the permanency of the plaintiff’s contract by operation of law. The jurisdiction conferred by the Act of 2003 does not extend to adjudicating on whether the employer breached some other term of the contract of employment, for example, a term in relation to work location, it was submitted. Indeed, in this regard, the position adopted by the plaintiff before the court was the same as the position which had been adopted by the defendant before the Rights Commissioner, in that the defendant had argued before the Rights Commissioner that the manner in which the contract was to be interpreted was not a matter for her and that the limit of her jurisdiction was merely to determine whether the contract was one of indefinite duration. It was also submitted on behalf of the plaintiff that, if the legislature had intended to oust or restrict the jurisdiction of the court to deal with issues arising from the application of the Act of 2003 to a contract of employment, that would have required a clear statutory provision. Section 15 of the Unfair Dismissals Act, 1977 (the Act of 1977) was cited as the type of provision which might have been, but was not, employed by the Oireachtas to limit an employee’s choice of redress.
Of the authorities relied on by the defendant in support of its objection in point of law, those which appear on first impression to be of more relevance than others involved an attempt by an applicant to pursue a remedy by way of judicial review in circumstances in which a remedy by way of statutory appeal was open to, or being pursued by, the applicant. The most recent of the authorities is the decision of the Supreme Court in O’Donnell v. Tipperary (South Riding) County Council [2005] IESC 18, in which judgment was delivered on 18th March, 2005. That case concerned an application for an order of certiorari quashing a decision of the respondent taken on 3rd October, 2000 to terminate the applicant’s contract of employment as Station Officer of Clonmel Fire Station. In addition to initiating the judicial review proceedings, the applicant had brought an appeal to the Employment Appeals Tribunal under the Unfair Dismissals code, where a hearing had taken place over two days. However, the appeal had been adjourned when the Tribunal became aware that the applicant was pursuing relief by way of judicial review. One of the issues which arose was the effect of the availability of the alternative remedy of appeal on the application for judicial review. In dealing with this issue, Denham J. in her judgment quoted with approval the following passage from the judgment of the High Court (Barron J.) in McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 at p. 549 on the common law relating to the discretion to be exercised by a court where there is an application for judicial review in circumstances where there is an alternative remedy:
“The real question to be determined where an appeal lies is the relative merits of an appeal against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities shows that this is in effect the real consideration.”
Denham J. analysed the relevant factors in the case before her. She considered that while the steps which had been taken in the appeal to the Tribunal were not a determinative factor they were weighty. She considered that the issues which were raised by the applicant were more appropriate to be determined by an appeal on the merits than a review procedure. She also took into account that there was a right of appeal from the Tribunal to the Circuit Court, and from thence to the High Court and ultimately on a point of law to the Supreme Court. Applying the principles enunciated in the passage from the judgment of Mr. Justice Barron, she found that the appropriate remedy was the appeal to the Tribunal, which had the ability to deal with the questions raised and the principles of fairness. The decision of the High Court in that case that the matter should continue before the Tribunal was affirmed by the Supreme Court.
In my view, in the context of the defendant’s objection in point of law, the significant feature of O’Donnell v. Tipperary (South Riding) County Council is that the remedy which the applicant sought to pursue in court, certiorari, is a discretionary remedy. The question which has to be addressed here is what is the position if a plaintiff wishes to pursue in court a legal remedy in respect of which the court does not have a discretion, for example, damages for breach of contract or tort, in circumstances where a statutory remedy is also provided. The oft cited decision of the Supreme Court in Parsons v. Iarnród Éireann [1997] 2 I.R. 523 illustrates how that issue might arise. The plaintiff in that case was dismissed by the defendant, his employer, for alleged misconduct. Initially he sought redress by pursuing a claim to a rights commissioner under the the Act of 1977. The matter came before a rights commissioner who recommended that he should proceed to the next stage of the defendant’s internal disciplinary proceedings, an ad misericordiam meeting, which duly took place without prejudice to the rights of either party. However, the plaintiff’s dismissal was confirmed. Subsequently he instituted proceedings for declaratory orders that the decision to dismiss him was null and void and of no effect, that the ad misericordiam meeting and the decision to affirm his dismissal were null and void and of no effect, a mandatory injunction compelling the defendant to reinstate him and for damages, including damages for breach of contract and for wrongful and/or unfair dismissal. The defendant raised a preliminary objection that the plaintiff’s proceedings contravened the provisions of s. 15(2) of the Act of 1977 and should be struck out. The first two subsections of s. 15 provide as follows:
“(1) Nothing in this Act, apart from this section, shall prejudice the right of a person to recover damages at common law for wrongful dismissal.
(2) Where an employee gives a notice in writing under s. 8(2) of this Act in respect of a dismissal to a rights commissioner or the Tribunal, he shall not be entitled to recover damages at common law for wrongful dismissal in respect of that dismissal.”
In setting out his conclusions on the application of s. 15 in the Supreme Court, Barrington J., with whom the other two judges agreed, stated as follows (at p. 529):
“This is not a case of the ouster of the jurisdiction of the High Court. The jurisdiction of the High Court remains the same. What the Unfair Dismissals Act, 1977, does is to give to the worker who feels that he has been unfairly dismissed, an additional remedy which may carry with it the far reaching relief of reinstatement in his previous employment. It does not limit the worker’s rights; it extends them. At the same time, section 15 … provides that the worker must choose between suing for damages at common law and claiming relief under the new Act. Sub-section (2) accordingly provides that if he claims relief under the Act of 1977, he is not entitled to recover damages at common law; while sub-section (3) provides that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee the employee shall not be entitled to redress under the Unfair Dismissals Act, 1977, in respect of the same dismissal.
The traditional relief at common law for unfair dismissal was a claim for damages. The plaintiff may also have been entitled to declarations in certain circumstances, for instance, that there was an implied term in his contract entitling him to fair procedures before he was dismissed. But such declarations were in aid of his common law remedy and had no independent existence apart from it. If the plaintiff loses his right to sue for damages at common law the heart has gone out of his claim and there is no other free standing relief which he can claim at law or in equity.”
On the foregoing basis the Supreme Court upheld the decision of the High Court that, having pursued his statutory claim, the plaintiff could not have recourse to common law.
Turning now to the Act of 2003, as I have already stated, s. 14(1) provides that an employee may present a complaint to a rights commissioner that his or her employer has contravened any provision of the Act of 2003. Where such a complaint is presented, sub-s. (2) of s. 14 provides that the decision of the rights commissioner shall do one or more of the following:
(a) declare whether the complaint was or was not well founded;
(b) require the employer to comply with the relevant provision;
(c) require the employer to re-instate or re-engage the employee (including on a contract of indefinite duration);
(d) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable but there is a cap on the compensation in that it must not exceed two years’ remuneration in respect of the employee’s employment.
Section 15 of the Act of 2003 provides for an appeal from a decision of a rights commissioner to the Labour Court and sub-s. (1) of s. 15 provides that on such appeal the Labour Court shall make a written determination in relation to the appeal affirming, varying or setting aside the decision.
Section 18 of the Act of 2003 recognises the possibility of an overlap between the remedy provided for in the Act of 2003 and other statutory remedies available to an employee. First, it provides that, if penalisation of an employee, in contravention of s. 13(1), constitutes a dismissal of the employee within the meaning of the Act of 1977 and amendments thereof, relief may not be granted to the employee under both Acts, that is to say, the Act of 2003 and the Act of 1977, as amended. Further, it provides that, if an individual who is a fixed-term employee under the Act of 2003 is also a part-time employee under the Protection of Employees (Part-Time Work) Act, 2001 (the Act of 2001), he or she may obtain relief under either the Act of 2003 or the Act of 2001, but not under both. Significantly, the Act of 2003 does not contain a provision similar to s. 15 of the Act of 1977, which puts an employee on election as to whether to pursue the statutory remedy provided for in s. 14 or a common law remedy.
The jurisdiction conferred on a rights commissioners and on the Labour Court on appeal by the Act of 2003 is to adjudicate on an employee’s complaint that his employer has contravened one or more of the provisions of the Act of 2003 and to deal with the complaint in the manner stipulated in s. 14(2) or s. 15(1)(b), as the case may be. The agreed impact of the Act of 2003 on the plaintiff’s contract is that since 30th June, 2004 the plaintiff has been employed on a contract of indefinite duration. That was acknowledged for the first time by the defendant in unambiguous and unequivocal terms only after the initiation of the complaint adjudicated on by the Rights Commissioner in the letter dated 31st March, 2005 from the defendant’s solicitors to the plaintiff’s solicitors. The current dispute between the parties centres not on the direct effect of s. 9(3) on the plaintiff’s contract of employment with the defendant, which relates to its duration, but on the implementation of the other terms of the contract in the circumstances which have prevailed since 30th June, 2004. In my view, it would be inappropriate to express any view on whether the Rights Commissioner had, or the Labour Court on the pending appeal has, jurisdiction to adjudicate on the current dispute, relating as it does not to the duration of the plaintiff’s contract of employment but to the implementation of the other terms of his contract in circumstances where he remains an employee of the defendant. The appropriate forum for determination of the issue of the extent of the jurisdiction conferred by the Act of 2003 on the Rights Commissioner and the Labour Court is the Labour Court or the High Court on an appeal on a point of law from the Labour Court.
Assuming, purely for the purposes of considering the arguments for and against the defendant’s objection in point of law, that the Rights Commissioner had, and the Labour Court has, such jurisdiction, I am not satisfied that the plaintiff is estopped from bringing these proceedings having invoked the statutory redress scheme embodied in the Act of 2003. No statutory provision has been pointed to which ousts the common law jurisdiction of the court. Moreover, no statutory provision has been pointed to on the lines of s. 15 of the Act of 1977 which puts an employee to his election at the initiation stage between pursuing the statutory redress available under the Act of 2003 and his remedies at common law and limits him to that choice thereafter. Given that the legislature has not taken away or limited the plaintiff’s right of access to the court to enforce his common law rights, as it might have done, I cannot see how, by presenting his claim to the Rights Commissioner, the plaintiff is estopped from pursuing his common law rights.
Moreover, in my view, the position of the plaintiff, who is seeking to enforce private law rights in plenary proceedings, is not analogous to that of an applicant who seeks to pursue a public law remedy, such as certiorari, which is a discretionary remedy by way of the judicial review process. However, even if I am wrong in that last conclusion, given the probably unique complexities of the terms of retainer of consultants by the defendant, I am of the view that the common law remedies which the plaintiff seeks, which are being pursued in a process which is a full hearing on the merits, are more appropriate, in that they are more likely to achieve a result which accords with fairness and justice to both contracting parties, than the statutory remedies available under the Act of 2003, which would appear to comprehend much less complex contractual arrangements.
Accordingly, I hold that the defendant’s objection in point of law is not well founded.
Other lines of defence
Before identifying and dealing with the real issues in this case, I propose disposing of a number of other lines of defence advanced by the defendant in its legal submissions, although none of these matters was pleaded as a defence.
First, the defendant submitted that it was, and remains, constrained in the manner in which it may assign the plaintiff to a post by the statutory provisions which govern the appointment of permanent consultants. The statutory provisions invoked are the provisions of the Local Authorities (Officers and Employees) Act, 1926 (the Act of 1926) which regulate selection of persons for appointment to certain offices to which the Act applies. In the past, in general, selection was by means of a competitive examination conducted by the Local Appointments Commission until its dissolution by the Public Service Management (Recruitment and Appointments) Act, 2004 (the Act of 2004). Currently, recruitment for appointment to positions in the defendant’s organisation to which the Act of 1926 applies is subject to that Act and the subsequent amendments thereof, including the provisions of the Act of 2004 amending it, and it is regulated by the Commission for Public Service Appointments established by the Act of 2004. There is inherent in the defendant’s submission the proposition that, by seeking to enforce his rights under s. 9 of the Act of 2003, the plaintiff is seeking to compel the defendant to circumvent the provisions of the Act of 1926, as amended by the Act of 2004, or, alternatively, the proposition that it is a necessary corollary to the enforcement of the plaintiff’s right that such circumvention would occur and that such circumvention would be ultra vires the powers of the defendant. In my view, neither proposition is correct. The plaintiff is not seeking to be appointed to an office the filling of which is governed by the Act of 1926. The defendant must comply with the provisions of the Act of 2003 and such compliance falls outside the ambit of the Act of 1926. That, it seems to me, is a sufficient answer to this point without having to go into the minutiae of the provisions of the Act of 1926, as amended. However, I would add that Clause 8(1) of the Consultants’ Common Contract suggests that the defendant has power to make an appointment in circumstances where a consultant is being transferred without his or her consent “without competition”.
Secondly, in its written submission the defendant has advanced an argument that the Directive has not been properly transposed into Irish law because the Act of 2003 did not reserve to the defendant the discretion to determine the circumstances in which it is appropriate to confer an employee with a contract of indefinite duration. This argument, which it seems to me is a peculiar argument for an emanation of the State to advance, is wholly misconceived. The authority upon which the defendant relied, the opinion of Advocate General Kokott delivered on 27th October, 2005 in a reference to the European Court of Justice from a court of first instance in Greece, Konstantinos Adeneler and Others (case C-212/04), emphasises the breadth of discretion given to Member States in giving effect to the Directive. Member States are not obliged to convert fixed-term employment relationships into relationships of indefinite duration. If they do so, such conversion does not necessarily have to take place in all circumstances. In this jurisdiction the Oireachtas excluded certain types of contract from the scope of the Act of 2003: a contract where the employee is a member of the Defence Forces, or a trainee Garda Síochána, or a nurse in training (s. 17). The Oireachtas did not exercise its discretion to exclude consultants employed by the defendant from the operation of the Act of 2003. That was permissible under the Directive and was its prerogative. The defendant is bound by the Act of 2003 as enacted by the Oireachtas.
Thirdly, the defendant asserted that the plaintiff had repudiated an entitlement to employment on the terms of the Consultants’ Common Contract in his evidence. Therefore, it was submitted, the court does not have to determine whether the terms of that contract, including Clause 8.1, applies to the plaintiff. I reject that submission. Since 31st March, 2005 the defendant’s case has been that the terms and conditions of the plaintiff’s employment are governed by the Consultants’ Common Contract and that is the basis of the defendant’s case as pleaded. Accordingly, I propose considering later the applicability of the Consultants’ Common Contract to the plaintiff. At this juncture, I wish to comment on submissions made by the defendant that certain ramifications flowed from the plaintiff’s repudiation as asserted by the defendant. It was submitted that, on the authority of the decision of this Court (Carroll J.) in Sheehy v. Ryan [2004] 15 E.L.R. 87, the plaintiff’s contract could be terminated with notice for good or no reason. It was further submitted that the plaintiff could be made redundant pursuant to the Redundancy Payments Act, 1967, as amended. Insofar as those submissions require to be answered, the answer is that the plaintiff’s contract of employment subsists. Neither the issue of termination nor the issue of redundancy arises in these proceedings, nor does the application of s. 13 of the Act of 2003 which prohibits the penalisation of an employee by an employer by dismissal or any unfair treatment, including selection for redundancy. Submissions in relation to termination and redundancy are “red herrings”.
The issues
The starting point in identifying the issues in this case is the agreed position of the parties that the plaintiff, by operation of s. 9(3) of the Act of 2003, has a contract of employment as a consultant surgeon with the defendant of indefinite duration. The issues which fall to be dealt with in determining the liability of the defendant in contract to the plaintiff, which is what the court has to determine at this juncture by agreement of the parties, are the following:
(1) What are the terms of the plaintiff’s contract of employment apart from the duration of the contract, which is governed by s. 9(3)?
(2) Has there been a breach by the defendant of any of those terms?
The plaintiff’s contractual terms
I have set out the factual position in relation to the appointment of the plaintiff and the renewal of his contract and the background against which that occurred in some detail earlier in this judgment. I am satisfied on the evidence that the terms of the Consultants’ Common Contract applied by necessary implication to the plaintiff’s employment insofar as those terms were consistent with a fixed-term contract.
It was submitted on behalf of the plaintiff that, in resolving the issue of liability, the court has only to determine one term of the plaintiff’s contract – the location of his workplace. I do not accept that proposition. It was also submitted that while there was implied into the plaintiff’s contract of employment terms which resemble some of the terms set out in the Consultants’ Common Contract, not all of the terms of that document were implied terms of the contractual relationship of the plaintiff and the defendant. In particular, it was argued that Clause 8.1 could not be implied into that relationship as it was inconsistent with the express wording of the plaintiff’s contract, in that his initial letter of appointment stipulated Louth County Hospital at Dundalk, and not any other location, as his workplace. The decision of the Supreme Court in Sweeney v. Duggan [1997] 2 I.R. 531 was cited as authority for the proposition that a term cannot be implied into a contract if it is inconsistent with the express wording of the contract.
While the proposition that an implied terms must not contradict any express term of a contract cannot be gainsaid, in my view, the implication of Clause 8.1 into the plaintiff’s contract does not contradict the express term of his initial letter of appointment. It is clear on the wording of Clause 8.1 that it is envisaged that the location of the workplace of the consultant would be inserted in that clause. Presumably the contract executed by Ms. Mulcahy stipulated Louth County Hospital as her workplace. At any rate, the evidence establishes that that was the only location at which she worked. However, notwithstanding that, the defendant would have been entitled to invoke Clause 8.1 against her. The plaintiff was initially appointed to stand in temporarily for Ms. Mulcahy. It cannot have been the presumed intention of the parties that the plaintiff would be in a stronger position than Ms. Mulcahy or that, if the conditions which gave rise to an entitlement on the part of the defendant to transfer her without her consent were to arise, the plaintiff, as her locum or as a temporary consultant after her retirement, would be immune from transfer. Of course, because of the short duration of the plaintiff’s successive appointments, an issue as to the application of Clause 8.1 would have been unlikely to have arisen if the Act of 2003 had not intervened because, presumably, the defendant would have exercised the option of not renewing the plaintiff’s contract rather than invoking Clause 8.1.
I consider that, in effect, what the plaintiff has sought to do is to pick and choose from the terms of the Consultants’ Common Contract. That he is not entitled to do. In my view he is subject to all of the terms of the Consultants’ Common Contract, including Clause 8.1, which are consistent with a contract of indefinite duration. His workplace can be changed in accordance with the provisions of Clause 8.1.
Breach?
The defendant disputed the plaintiff’s contention that the defendant is in breach of the terms of his contract on two grounds.
The first ground is that the defendant has paid the plaintiff his salary since December, 2004, thereby fulfilling its contractual obligation to him. The defendant is not obliged to provide work for the plaintiff, it was submitted. As authority for that last proposition, the defendant relied on the decision of the English High Court in Collier v. Sunday Referee Publishing Company Limited [1940] 2 K.B. 647. The defendant relied in particular on the following passage of the judgment of Asquith J. at p. 650:
“It is true that a contract of employment does not necessarily, or perhaps normally, oblige the master to provide the servant with work. Provided I pay my cook her wages regularly she cannot complain if I choose to take any or all of my meals out. In some exceptional cases there is an obligation to provide work. For instance, where the servant is remunerated by commission, or where (as in the case of an actor or a singer) the servant bargains, amongst other things, for publicity, and the master, by withholding work also withholds the stipulated publicity …; but such cases are anomalous.”
Aside from the interesting insight which it gives of a bygone era, that passage, in my view, is of no relevance to the facts of this case. It is a term of the plaintiff’s contract that he is entitled to engage in private practice within the hospital in which he is employed. As a matter of contract, the defendant is in breach of its contractual obligations to the plaintiff if it precludes him from working in one of its public hospitals and excludes him from access to the facilities and infrastructure necessary to enable him to engage in private practice.
The second ground is that, in accordance with Clause 8.1, the defendant has assigned the plaintiff to “an appropriate alternative appointment” on more than one occasion, which the plaintiff in breach of contract has rejected. It was submitted on behalf of the plaintiff, however, correctly in my view, that, before the defendant could appoint the plaintiff to a position other than in Louth County Hospital, it would have to establish that two preconditions were fulfilled: that major changes had taken place in the character of the work being carried out in Louth County Hospital; and an offer of appropriate alternative appointment had been made to him. The plaintiff’s case was that neither precondition was fulfilled.
The meaning of the precondition expressed as “unless major changes take place in the character of the work being carried out there” in Clause 8.1 is a question of construction in the light of the totality of the terms of the Consultants’ Common Contract. The interpretation advanced on behalf of the plaintiff that, as regards surgical services, it envisages a major diminution or cessation of a particular type of surgery, for example, breast surgery, is much too narrow and, in my view, is not correct. The provision in Clause 8.1 which empowers the defendant to transfer a consultant without his consent is clearly designed to ensure that there is proper deployment of consultant manpower. While the phrase “major changes … in the character of the work” may not be the most felicitous to describe the changes wrought in the configuration of consultant surgical manpower and specialty expertise by the reorganisation of surgical services at Drogheda and Dundalk which came into force on 1st July, 2004, I have no doubt that it does encompass what has happened at Louth County Hospital. Under the reorganisation there is no longer a post in Louth County Hospital for a consultant surgeon committed to eleven sessions there, as Ms. Mulcahy was, and as the plaintiff was, initially as her locum and subsequently after her retirement as a temporary consultant surgeon. Under the current organisational structure, six surgeons organised in three teams of two, each of which teams has a gastrointestinal specialty, have conjoined responsibility for patients in Our Lady of Lourdes Hospital and Louth County Hospital. Each surgeon has sessions in each hospital. Apart from that reorganisation there has been a major change in the character of the surgery being carried out in Louth County Hospital in that only elective surgery is carried out there now. Patients who present at Louth County Hospital through the Accident and Emergency Department who require early intervention are triaged there and are transferred to Our Lady of Lourdes Hospital where all emergency surgery for the Louth Meath Hospital Group is carried out. The evidence establishes that the reorganisation was implemented with the objective of delivering safer and better surgical services in the North-Eastern Area.
While I am satisfied on the evidence that the first precondition to the invocation of the provision in Clause 8.1, which empowers the defendant to transfer a consultant without his consent, has been fulfilled, in that major changes have taken place in the character of the surgical services being provided in Louth County Hospital, I am not satisfied that the plaintiff has been offered an appropriate alternative appointment. The inappropriateness of the various diktats issued to the plaintiff, which I have outlined earlier, is self-evident. A six-month posting to Monaghan General Hospital followed by a review of the plaintiff’s position was not appropriate. Neither was a posting to Cavan General Hospital “until further notice”. What Clause 8.1 comprehends is a permanent posting of an appropriate nature in another hospital, not a series of short-term postings at different locations, which in this case, as the plaintiff’s counsel put it, are spread over several counties and two provinces.
The most recent direction given by the defendant following the decision of the Rights Commissioner has the effect of converting the plaintiff into a permanent locum. The defendant’s position as to the effect of the Act of 2003 was put by its counsel in very plain language: it cannot elevate the plaintiff into any status above the one he formerly enjoyed; he was always a locum; his is now a locum; but he is a permanent locum. In my view, that is not a proper characterisation of the plaintiff’s status, either before or after 30th June, 2004. When he was initially appointed to Louth County Hospital he was undoubtedly a locum for Ms. Mulcahy. However, after Ms. Mulcahy retired, in my view, he was temporary consultant surgeon on a series of fixed-term contracts on the terms of the Consultants’ Common Contract insofar as they were consistent with the temporary fixed-term nature of his engagement, which, among other things, entitled him to engage in private practice. It is perhaps worth noting that the defendant has used the words “locum” and “temporary” interchangeably when describing the plaintiff’s status in the past. Since 30th June, 2006, the plaintiff has been employed as a consultant surgeon on a contract of indefinite duration on the same terms as he had been previously employed, including his entitlement to engage in private practice. Assigning the role of providing ongoing locum cover for six consultants in the Joint Department of Surgery at Louth Meath Hospital Group is not an offer of appropriate alternative appointment within the meaning of Clause 8.1, because that role precludes the plaintiff from engaging in private practice as envisaged in the Consultants’ Common Contract.
As I have stated earlier, during the hearing the defendant withdrew the allegation of insubordination against the plaintiff and apologised to him. The defendant maintained the position that it was not reasonable for the plaintiff to reject the posts he was directed to, particularly as he has been paid the full salary referable to the public work of a consultant. That is not a proposition to be disposed of lightly. It is regrettable that the defendant has not got real value for the salary it has paid to the plaintiff. However, taking an overview of how the plaintiff has been treated by the defendant, both before the proceedings were initiated and in the conduct of these proceedings, I have come to the conclusion that the plaintiff was justified in the stance he adopted, because it is probable that he would have been prejudiced had he adopted a different stance.
Accordingly, in my view, the defendant is in breach of the plaintiff’s terms of employment and has been since the plaintiff returned from leave in January, 2005.
Summary of conclusions on liability
By operation of the Act of 2003 the plaintiff has been employed by the defendant as a consultant surgeon on a contract of indefinite duration since 30th June, 2004 on the terms of the Consultants’ Common Contract, including Clause 8.1 which empowers the defendant to transfer the plaintiff from his original work location, Louth County Hospital, without his consent if major changes have taken place in the character of the work being carried out in Louth County Hospital and provided an offer of an appropriate alternative appointment is made to him in another hospital. By virtue of the reorganisation of surgical services in Our Lady of Lourdes Hospital and Louth County Hospital there has been a major change in the character of the work being carried out in Louth County Hospital. The defendant has not allowed the plaintiff to engage in either public or private practice at Louth County Hospital since he returned from leave in January, 2005 and has failed to make an offer of an appropriate alternative appointment to him. The defendant has been in breach of the plaintiff’s contract of employment since January, 2005.
Going forward
I am not impervious to the difficulty which the impact of the Act of 2003 on the plaintiff’s employment with the defendant at the time of a radical restructuring of surgical services in the North-Eastern Area in the public interest has created for the management of the defendant. Recognising that difficulty, on a number of occasions in the course of the hearing, I urged the parties to try and resolve the issues between them without the court having to make an order. Unfortunately this did not happen.
As long ago as 19th April, 2004, in a letter of that date to the Group Manager of the Louth Meath Hospital Group, Mr. Finbar Lennon, who is a consultant surgeon attached to Our Lady of Lourdes Hospital and Louth County Hospital and who at the time was the medical adviser to North-Eastern Health Board Management, urged management to address the position of the plaintiff and other “long-term locum consultants” with the Group. Mr. Lennon urged that there should be an acknowledgement of management’s appreciation for their work and the invaluable contribution they had given in recent years to acute hospital services in the region. Without them, he stated, the defendant would have been unable to deliver those services. He apprised management that all of the consultants believed that they had a very strong case to be retained in permanent employment and he urged that constructive efforts should be made to meet their justifiable entitlements. He cautioned that “long fingering” their frequent representations was foolish and unwise. A disquieting feature of this case is that that letter and other relevant documents were not discovered, as they should have been, until a supplemental affidavit was sworn well into the hearing as a result of the persistence of the plaintiff’s legal team following a tip-off from a “whistle-blower”. It is clear that the significance of the letter of 19th April, 2004 in litigation was appreciated even before these proceedings were initiated. It was recognised by management as early as 27th October, 2005 that, if it had been discovered during the proceedings before the Rights Commissioner, it would have severely undermined the defendant’s defence of the plaintiff’s complaint.
Apart from the public, there are various stakeholders which have an interest in the manner in which surgical services are organised in the North-Eastern Area, including the management of the defendant, the permanent consultant surgeons and other personnel employed by the defendant, the section of the defendant which now performs the role formerly performed by Comhairle na nOspideal, and the Royal College of Surgeons. They may have varying views as to how the predicament created by the plaintiff’s position should be resolved. However, the plaintiff’s contract of employment must be honoured. Having heard approximately eighteen hours of evidence and submissions over six days to date, I am of the view that, because of the complexity of infrastructural, organisational and practical considerations in the provision of surgical services, an agreed solution to the predicament is more likely to be in the interest of the plaintiff, the other stakeholders and the public than a remedy provided by the court.
Tolan v An Bord Pleanala
[2008] I.E.H.C. 275, Hedigan J.
JUDGMENT of Mr. Justice Hedigan delivered on the 29th July, 2008
This is a case that comes before me as an appeal from the Circuit Court. In it, the plaintiff claims,
(a) A mandatory injunction directing the defendant to remove from the planning file a letter written by one Gerard Lynam, dated 13th October, 1999, and all documents referring thereto;
(b) Damages for defamation;
(c) Other reliefs;
(d) Aggravated damages.
The case arises from the act of a public representative in writing and having delivered to the defendants, a letter that contained false and scurrilous allegations against the plaintiff. This letter purported to be written in connection with the plaintiff’s application for planning permission for a house. The letter was received by the defendant, even though it acknowledged at the time of reception, that it contained nothing relating to planning issues. It remains on the file to this day. From this reckless and irresponsible act by a public representative, has flowed enormous distress, grief and suffering for the plaintiff and his wife, whom everyone agrees, and this court reiterates and emphasizes, are entirely innocent of the scurrilous allegations made against them. When the existence of this letter came to his notice, the plaintiff and his wife made enquiries about it. Apparently, the contents of this letter were being bandied about among elected representatives and others. The plaintiff was refused access to the letter by the defendants because it had not decided whether to circulate it for comment.
Following discussion with the public representative in question, he agreed that he had mistaken the plaintiff’s identity for that of someone else. He agreed he was wrong, and through his solicitors, advised the defendants of this fact. He thereby explicitly withdrew the letter and asked the defendants to ignore the entire substance of it. At the same time, under separate letter, the public representative apologised to the plaintiff. The plaintiff assumed the letter would be forthwith removed from the file.
The decision of the defendants in his application at the time was to refuse him permission. He had been given planning permission by the local planning authority for the construction of a house. The plaintiff and his wife, at the first opportunity, attended at the offices of the defendant to inspect the file. To their dismay, they found the letter still remained thereon, although together with a document stamped heavily in red, ‘WITHDRAWN’, around which were staple marks and together with an envelope. The letter was not sealed, was readily available for inspection and according to the plaintiff was, in fact, highlighted by the document with ‘WITHDRAWN’ written on it.
The plaintiff went to see the Secretary of An Bord Pleanála, Mr. Collins, and met with him and with a Mr. Carlton. He asked the Board to remove the letter. Mr. Collins said it would take a High Court order. The plaintiff subsequently wrote on a number of occasions to the defendants, asking for the removal of the letter. His letters remained unanswered. He telephoned on numerous occasions; according to his wife, she was sure that he was making a pest of himself and that the defendant was simply ignoring him. Finally, he issued these proceedings in June 2002. In their defence, the defendants essentially argued that they are bound by Regulation 72 (a) of the Local Government Planning and Development Regulations 1994, as amended, which require them to keep available for inspection by members of the public, “the documents relating to an appeal”. They claim either absolute or qualified privilege in respect of their maintaining this letter on their publicly accessible files. It is admitted that they have known, since 22nd December, 1999, when Mr. Hanafin, solicitor, wrote, on behalf of the public representative, that this letter contained matters that were entirely false.
I will take the essential issues as they have presented them to me, one by one. Firstly, there has clearly been publication by reason of the maintenance of the letter on this publicly accessible file. The evidence is that at least three people have inspected the file, in addition to the plaintiffs. These were: Sandra Bissett, Frank Connolly and Dara McElligot, although this last on the instructions of the plaintiff. It is also noteworthy, that when they inspected the file, the plaintiffs found that the offending letter was open and unsealed and located one-third of the way into the file. The defendants’ case is that it had been placed in a sealed envelope, close stapled to the ‘WITHDRAWN’ document at the back of the file. On this basis, clearly, it had been inspected before by somebody else. As for the claim by the defendants that it was sealed and close stapled, human nature tells us anyone seeing such a thing on a file will search that document first.
It is reasonable to infer that many people, including local interest groups, have inspected the file. Moreover, the un-contradicted evidence of the plaintiffs is that they were shunned by many of their neighbours, which is sufficient, I think, to infer a fairly wide level of publication. In my view, therefore, there is no doubt but that there has been substantial publication. Secondly, there can be no doubt as to the meaning of the words in the letter. They are profoundly damaging to the plaintiff and, indeed, to his wife. They are suggestive of all manner of criminal and/or antisocial activity. They are written by a public representative, which gives them even more weight, they are cloaked in the garb of authority by being on the file of An Bord Pleanála. Any member of the public could have been, and still can be fooled, into according them some credibility. The attendant letters may not even be read, or if read, may not be fully understood. The meaning is profoundly damaging. Thirdly, in relation to the existence of the privilege claimed, the burden of establishing privilege is on the defendants. It is clear that no statutory privilege is accorded to the defendants. The only claim they can make is that they are required to maintain documents relating to an appeal, available for public inspection. They have no statutory provision according them immunity. Clearly, therefore, they must be very careful what they allow to be carried on their file. There can, in my view, be no question of an absolute privilege in the absence of the clearest statutory provision. The role of statutes is replete with examples of privilege accorded, but not here. I have been referred to two examples;
s. 52 of the Medical Practitioners Act 1978, and s. 77 ss. 2 of the Investment Intermediaries Act 1995.
As to whether there is a qualified privilege involved here, no evidence has been called to the existence of an honest belief in the words published. As the defendants did not, and have not, at any stage attempted to claim that the words were true, this is unsurprising. Clearly, the defendants have no belief whatever in the truth of the words and, indeed, acknowledge them as false. Regulation 72 (A) requires the Defendants to retain on the file any document submitted relating to an appeal. Does the definition of “document relating to an appeal” include the document in this case? Reply No. 6 of the Replies to Particulars, dated 23rd June, 2003, states explicitly that the document in question did not contain any matters relating to planning issues which pertained to the proposed development. There was, in my view therefore, no duty on the Defendant to retain the letter on the file. This pleading by the defendant is, I note correct, because the defendants have acknowledged through Ms. Morrin who received the letter at the offices of the Defendant, when the letter was delivered first, that it contained no information relevant to the application. In the result, in my judgment, no qualified privilege exists here to protect the defendant.
Fourthly, in this case, the plaintiff, the victim of a gross falsity, written in a letter to the defendants, asked them to remove this letter from their file, which was open to the public. The response was that they would not do so unless ordered to by the High Court. I consider this response from a public body to be entirely inadequate. They were aware that present on their file, which was, and remains readily accessible to the public, false and highly defamatory statements about a citizen. Their response should have been immediate and effective. Instead, they purported to throw upon the plaintiff the onus of moving in the High Court, with all the attendant risk, financial and otherwise, at a time when he was planning to come back before them with a further application, and at a time when he was in considerable financial hardship.
The response of An Bord Pleanála fell far short of the State’s duty to vindicate the good name of the plaintiff. They did not even seek legal advice as to what they might do. Their action, in allegedly sealing the letter in an envelope on the file, was a transparently inadequate response, all but certain to attract attention rather than deflect it. I therefore find for the plaintiff on liability in this matter.
In considering damages, after some careful consideration, I have decided not to award aggravated damages. I do so because the defendants were not the origin of the defamation in question. I do not want to be taken in this regard as approving in any way the actions of the Board. The administrative indifference shown to the plaintiff in this case, has no place in modern Ireland and deserves the fullest criticism. It does not, however, lead me to award aggravated damages. The plaintiff, clearly, is entitled to general damages, and taking into account the amount already recovered by him from the other parties to this sorry tale, I award the sum of €75,000. As to the injunction required, I will make an order directing the removal from the file of the letter of 13th October, 1999, from Councillor Gerard Lynam to An Bord Pleanála, together with all other documents which refer expressly, or by implication, to the said letter.
JUDGMENT of Mr. Justice Herbert delivered the 24th day of March 2011
1. Between September 2005 and September 2006, a series of decisions affecting the plaintiff, approximately six in number were taken by Dr. C. as principal teacher of a large community college (hereinafter referred to as B.C.C.), in which the plaintiff was a senior member of the teaching staff. It is not for this Court in these proceedings to decide whether these decisions were correct or incorrect, justified or unjustified. A report of an Investigating Officer appointed pursuant to the provisions of the Code of Practice of March 2003, for “dealing with complaints of bullying and harassment of staff in community and comprehensive schools”, subscribed to and relied upon the plaintiff as a member of the Teachers Union of Ireland and, by the Board of Management of B.C.C. found that the plaintiff had not established that these decisions amounted to bullying or harassment of her by Dr. C.. This finding was sustained by an Appeal Board duly constituted under and in accordance with the terms of the Code of Procedure, on foot of the plaintiff’s appeal dated the 9th March, 2010, from the decision of the Investigating Officer. I have already ruled during the course of this action that to the extent that these decisions of Dr. C. were the subject of inquiry by the Investigating Officer and subsequently by the Appeal Board, this Court would not permit the plaintiff to challenge these findings in the instant case and, would accept the finding that these decisions taken by Dr. C. did not amount to bullying or harassment of the plaintiff.
2. However, these decisions and the facts surrounding them have a residual importance to the present case. The plaintiff did not accept these decisions of Dr. C. and, in each case, to re-echo her own words under cross examination, “went beyond and outside him”. In so doing she knew that she was taking, what she herself described, as a “drastic step”. She accepted in evidence that on the 2nd September, 2005, she told Dr. C. that unless she received what she believed was promised funding from B.C.C. for the second year of her four year degree course in counselling and psychotherapy, “she would do something drastic”. In cross examination the plaintiff denied that she had threatened to take sick leave for a year and insisted that by saying that she “would do something drastic” she meant that she would, “go beyond and outside him”.
3. It is not for this Court to decide in the present case whether or not the plaintiff was entitled to “go beyond and outside” Dr. C. in relation to these decisions or, even if such recourse existed whether she employed correct procedures in availing of it.
4. However, what is important in my judgment to the proper understanding and determination of this action is that these decisions of Dr. C. and the plaintiff’s reaction to them resulted, I find, in escalating mutual distrust between them as disagreement followed disagreement. Eventually, I find that the plaintiff came to believe that every action or omission on the part of Dr. C. whether actually or, as she perceived it, affecting her, was part of a conscious and deliberate campaign by him to bully and harass her.
5. These most regrettable circumstances caused her on the 4th October, 2006, to make a formal complaint of bullying and harassment through a firm of solicitors to the Rev. Chairman of the Board of Management of B.C.C.. I accept the evidence of the Rev. Chairman that this was the first he had heard of the allegation. He was very shocked and he took legal advice before acknowledging this letter by a letter dated the 16th October, 2006. He accepted that he had been aware since October 2005 that the plaintiff and Dr. C. had not been speaking to each other but he told the court that this was not at all unusual amongst teachers. I find that prior to this, in May and June 2006, three teachers on the staff of B.C.C. who were the then serving committee of the Teachers Union of Ireland in B.C.C. had attended a number of meetings with Dr. C. in which they had put to him the plaintiff’s concerns about his behaviour towards her. I am satisfied that at least one of these meetings Dr. C. behaved very aggressively towards a female teacher almost resulting in physical intervention by the two male teachers present. It is not necessary for the purpose of deciding the present action to determine whether Dr. C. is correct in his recollection that no express allegation of bullying or harassment by him of the plaintiff was raised at any of these meetings and accordingly that the contents of the letter of the 4th October, 2006, came as a very great surprise to him. By a letter dated the 7th November, 2006, Dr. C. denied these accusations and furnished particulars to the Board of Management of B.C.C. of what he alleged was bullying of him by the plaintiff.
6. Following a considerable exchange of views in correspondence, which on occasion became unnecessarily acrimonious, on the 13th November, 2006, a practising junior counsel with extensive experience and with an area of specialisation in the Law relating to Education in Ireland was appointed under the Code of Practice as “Investigating Officer” to inquire into these very serious complaints by the plaintiff of bullying and harassment on the part of the Dr. C.. In furnishing very belated details of her claim to the Investigating Officer and to Dr. C. in April 2007, the plaintiff claimed that she had been bullied and harassed by Dr. C. since 1992. However, at the hearing of the instant case, she accepted that this alleged behaviour on the part of Dr. C. only commenced in October 2005, following her appeal against the filling of four “A” posts of responsibility in B.C.C.. The Investigating Officer furnished her report on the 26th October, 2007 and a copy was furnished to the plaintiff.
7. At this point a few biographical details of the plaintiff and of her career are in order. The plaintiff was born on the 8th July, 1954. She separated from her spouse after, what I was informed, was for her a very traumatic marriage followed by a very difficult court separation. She has two children who are now young adults. She qualified as a teacher in 1975. After qualifying she taught in Dublin until 1979 and in Lisbon from 1979 to 1980. In 1980 she became a permanent member of the staff of B.C.C.. In 1993, Dr. C. was appointed principal of B.C.C.. In 1999 the plaintiff became Home-School Liaison Coordinator at B.C.C.. In the circumstances of this case I find it to be of considerable significance that the duties of the holder of this important and responsible post were spelled out in the “job description” as being, inter alia, “to consult, liaise and collaborate with the Principal” of B.C.C.. It is further of significance that the plaintiff told the court that she regarded these as merely guidelines and not necessarily as binding on her. In May 2002, the plaintiff was elected to and served a three year term as a member of the Board of Management of B.C.C., as one of two teacher representatives on that Board. In October 2004, she commenced a four year degree course in counselling and psychotherapy. This involved some limited absences from work. Over the years from 1980 onwards the plaintiff had, through evening courses, obtained diplomas in work related skills such as drugs awareness and personal development counselling. In September 2005, she was appointed learning support teacher at B.C.C.. I find that the evidence clearly establishes that up to this point the plaintiff was regarded by her colleagues at B.C.C. including Dr. C. as a most dedicated and progressive teacher who had done enormous work in extending the educational services provided by B.C.C. to deprived families and especially to children at risk.
8. Unfortunately, all of this came to an end in October 2005, when the plaintiff was unsuccessful in her application for one of four category “A” posts of responsibility within B.C.C.. I find that the plaintiff consider it most unjust that she should have been passed over for these posts having regard to her qualifications, her seniority and her record of exemplary and innovative service as Home-School Liaison Coordinator. She attributed her lack of success to the malign influence of Dr. C.. I accept the evidence that Dr. C. took no part whatever in the actual decision making and, had no vote in the selection of the successful candidates. I accept that he was present at the meetings of the Appointments Committee as secretary and to keep the record. However, there was compelling evidence before the court which I accept that even if Dr. C. took no part in the selection process he totally approved of the result, which he did not wish to see changed. He then made what can only be described as a series of calamitous blunders which would cause a reasonable observer, reasonably to conclude that he was determined that the plaintiff would not under any circumstances be awarded one of these category “A” posts of responsibility in B.C.C.:-
He advised the plaintiff incorrectly, though I am quite satisfied not maliciously, that she could not appeal this decision.
On the 9th November, 2005, a letter under his signature was sent congratulating the successful applicants when, I am satisfied he knew of the plaintiff’s appeal against the decision. I find his explanation for this action unconvincing. In a letter of equal date he apologised to the plaintiff, but then cast doubt on the sincerity of this apology by notifying these teachers of meetings involving “A” post issues on the 16th November, 2005, and the 23rd November, 2005.
He prevailed on a member of the teaching staff of B.C.C. who had been a friend of the plaintiff for more than twenty years to endeavour to persuade her to withdraw her appeal and to apply for a “B” category post which he indicated she could be assured of getting. This offer was very properly declined by the plaintiff. This other teacher, very moved, told the court that she realised in hindsight that she should not have done this as it would probably result, as it did in the loss of the plaintiff’s friendship.
9. I find on the evidence that the plaintiff, who with very good reason, regarded herself as a very senior and experienced teacher who had contributed greatly to the work of B.C.C. felt deeply hurt, disappointed, humiliated and betrayed by these actions of Dr. C.. I find that the plaintiff reacted by deciding to have as little personal contact with Dr. C. as possible. On the 30th October, 2005, the plaintiff appealed successfully against the procedure adopted in filling these “A” posts. The plaintiff was not successful in obtaining one of these posts in the subsequent re-selection process. For his part, I am satisfied, that Dr. C. perceived the plaintiff’s appeal against the “A” post appointments, which I am satisfied on the evidence was entirely unprecedented, as a further going “beyond and outside him” by the plaintiff and, as a challenge to his authority as Principal of B.C.C.. I find that his reaction was to behave thereafter towards the plaintiff in a hostile and dismissive manner and to disparage and marginalise her in the eyes of other teachers and members of the non teaching staff at B.C.C.. Unfortunately also, those colleagues whose promotions to “A” posts of responsibility was jeopardised by the plaintiff’s appeal and their friends on the teaching staff also ostracised the plaintiff.
10. Specific events of which the plaintiff complains and which occurred between October 2005 and September 2006, – the music examination incident; being urgently summoned to Dr. C.’s office during an inspection by an Inspector of the Department of Education; unwarranted requests to attend at the college office and, especially the forcing open of the door of her office and the removal to a different room of her effects including very confidential files in July 2006, during the summer vacation, – an action which elicited a letter of complaint from the college committee of the Teachers Union of Ireland dated the 11th December, 2006, – all served to worsen this totally undesirable state of affairs.
11. I do not accept the bona fides of the explanation offered for the admitted entry by one of the college caretakers, acting on the instructions of Dr. C., into the plaintiff’s office in B.C.C. by slipping the lock with a knife and, the moving of the contents of that office to the Home-School Liaison room. Absent any emergency, ie. fire or flood or, faced with an inability after reasonable and proper attempts to contact the plaintiff and a pressing need in the interests of the college to have the rooms interchanged, what was done on this occasion on the instructions of Dr. C. was high handed and inexcusable. The fact, which I accept, that the college caretaker moved everything very carefully and put everything in exactly the same position in the other room and did not open anything does not mitigate the enormity of this conduct in the least. Neither does the fact that the other teacher made no complaint or that the plaintiff was in any event returning to the Home-School Liaison room at the start of the new term.
12. In addition, the plaintiff in retrospect, now regarded the September 2005, problem in securing what she regarded as promised funding by B.C.C. for the academic costs of the second year of her degree course in counselling and psychotherapy, as yet a further example of harassment and bullying of her by Dr. C.. The Investigating Officer and the Appeal Board appointed and constituted in accordance with the terms of the Code of Procedure held that these events were not shown to have involved bullying and harassment as defined in the Code. It is there defined as a, “destructive and malicious attempt to target a particular individual”. I have already ruled that so far as these events are concerned the plaintiff is bound by these findings of the Investigating Officer and the Appeal Board which, if the issue had fallen to be determined by it, are in accordance with the evidence led before this Court.
13. As almost invariably occurs in such divisive situations some teaching staff members of B.C.C., some members of the Board of Management of B.C.C. and, even some persons from outside B.C.C. who in the course of their official duties became involved in these events, came to take a partisan stance in favour of the plaintiff or of Dr. C.. I found the evidence of a number of witnesses in this case to be unreliable and therefore unhelpful for this reason.
14. Between the 31st August, 2006 and the 27th March, 2007, the plaintiff was absent from work and furnished each week a medical certificate from her General Medical Practitioner, Dr. Philip McMahon, that she was suffering from work related stress. The quite extraordinary manner in which these certificates were furnished, – they were found by the clerical officers each Monday morning pushed under the door of the general office and not given or sent to the Deputy-Principal the person entitled to require and to receive them, – demonstrates in my judgment the continuing concern on the part of the plaintiff to avoid any risk of having to communicate personally with Dr. C., even to the extent of refusing to furnish these very important documents from her own perspective directly to management. The clerical officers further informed the court that each Monday morning a man or a woman would telephone the general office and state that the plaintiff would be absent from work that week. These callers never identified themselves to the clerical officers.
15. I find utterly indefensible, the manner in which the plaintiff chose to return to work at B.C.C. on the 28th March, 2007. She must have realised that this was bound to be seen by Dr. C. with every justification as a calculated and wholly deliberate insult to him as Principal of the college. I accept the evidence of the Rev. Chairman of the Board of Management of B.C.C. at the time, and, the evidence of the present Chairperson of the Board who between them have each 30 years experience in community/comprehensive schools and large private schools that the manner of the plaintiff‘s return to B.C.C. after an absence of 209 certified days was “unbelievable and totally unacceptable”. On the 27th March, 2007, the plaintiff’s present Solicitors acting, one must infer on her instructions or with her consent, sent by Email a letter to the Rev. Chairman of the Board of Management of B.C.C. at his private address notifying him of her intention to return to work on the following day. I accept the evidence of the addressee that he did not receive this communication until after the plaintiff had in fact returned to work. By a letter dated the 12th April, 2007, he wrote to the plaintiff’s Solicitors notifying them of this and asking why no notice of her intended return to the college had been given to Dr. C..
16. I find on the evidence of Dr. C., the former and the present chairpersons of the Board of Management of B.C.C. and the Deputy-Principal of B.C.C. that Dr. C. was entitled to receive at least some days advance notice that the plaintiff intended to return to work on the 28th March, 2007. I find that he was in fact entirely unaware that she had done so until they met accidentally in a corridor some 30 minutes, on her own evidence, after she had entered the college. On the balance of probabilities I am prepared to find that this extraordinary behaviour on the part of the plaintiff was not, as Dr. C. perceived it, a conscious and deliberate attempt on her part to insult him and to undermine his authority as Principal of the College but was a further indication of her anxiety about communicating with him. In my judgment her failure to notify D. C. in advance of her intention to return to work is not explained or excused by her having proffered a medical certificate of fitness to return to work and a further certificate from Dr. McMahon covering her absence from work in the previous week, to the Deputy-Principal in the staff room earlier that morning and, being told by him to give them in at the office later in the day. I am satisfied on the evidence that apart from her failure to give proper notice to Dr. C. the plaintiff’s return to work did not in fact give rise to any staffing or rescheduling difficulties in the college on that day.
17. I accept the plaintiff’s evidence that Dr. C. said to her, “What’s this, what are you doing here, who knows you are back, did you inform the Board of Management”. There can be no doubt but that Dr. C. was entitled to put these questions to the plaintiff and even though the manner in which they were put may have been lacking in diplomacy and somewhat brusque, nonetheless I do not consider that in the extraordinary circumstances it amounted to bullying or harassment of the plaintiff. I am prepared to accept the plaintiff’s evidence that Dr. C. spoke loudly on the occasion and even turned red in the face, even though I have had an opportunity of closely observing him in various circumstances throughout the trial of this action and I never noticed him becoming red in the face. However, there was evidence which I accept, from a number of teachers who as members of the Teachers Union of Ireland had occasion to become involved in these differences between Dr. C. and the plaintiff, that on a number of occasions in meetings with Dr. C. he behaved with considerable and in their opinion unwarranted aggression towards them. However, unlike the case of the plaintiff, these exchanges all appear to have ended amicably and with handshakes all around. Given the sudden unexpectedness of his encounter with the plaintiff, his immediate assumption that she was back at work and, his almost certain anger and resentment at not having been notified in advance by the plaintiff that she was coming back to work, I think it not all unlikely that Dr. C. spoke loudly and aggressively as the plaintiff alleges. I do not however, accept that he became physically aggressive and, “came right up against her” as she claimed in her evidence. I find this to be improbable. In describing the difficulties which arose in September 2005, in relation to the provisions of funding for the second year of her degree course, the plaintiff claimed that during a meeting with Dr. C. in his office, he had become aggressive, had flung down his keys, had jumped up from the table, red faced and with eyes blazing and had invaded her body space. However, she made no complaint about this alleged behaviour at the time. In fact she agreed that things were good with Dr. C. at that time. On the 28th March, 2007, the confrontation with Dr. C. had occurred in an open corridor in what appears to have been the most public part of the College, where everything occurring was capable of being observed by other teachers, non teaching staff, pupils or even parents of pupils. Regardless of how he may have felt on the occasion, I do not regard it as credible that Dr. C. if he had any thought at all for his position as Principal of B.C.C. would have behaved in such a place in the manner suggested by the plaintiff.
18. The plaintiff gave evidence that her answer to these questions by Dr. C. was to say “I am not talking to you unless someone else is present”. She explained this answer by telling the court that she needed another person to be present so that person could be a witness to what Dr. C. was saying and doing as he would later deny both. The plaintiff denied that this was a pre-meditated response on her part. I am unable to accept this. The evidence adduced in relation to other incidents after the 28th March, 2007, together with this incident satisfied me that the plaintiff returned to B.C.C. with a plan to avoid contact with Dr. C. wherever possible and where not possible to stand up to him and insist that any communication between them take place in the presence of some third party acceptable to her. I find it also of significance that this incident was immediately followed by a letter from the plaintiff’s solicitors to the Board of Management of B.C.C. dated the 30th March, 2007.
19. After this exchange the plaintiff told the court that she noticed that the door of the business studies room, about ten feet away, was open. She entered this room where a male colleague, (and one of the Teachers Union of Ireland College Committee), was teaching a class. She told the court that her purpose was to ask this teacher to watch while she went down the corridor as she felt stressed and afraid. I am unable to accept that this as the reason why the plaintiff went into her colleague’s room. I am satisfied that she went there, not as Dr. C. perceived it to convey negative information about him in front of a class, but pursuant to her plan to involve a third party immediately in all confrontations which she might have with Dr. C.. I am satisfied on the evidence that this colleague was discomfited by the plaintiff’s sudden intrusion into his class and was most anxious that she should not linger in the room. I accept this teacher’s evidence that the plaintiff was quivering and appeared to be fighting back tears and had said to him, “He is at me again, its happening again”. I also accept this teacher’s evidence that as they were speaking a knock came to the door and Dr. C. put his head into the room, beckoned this teacher over to the door and said to him “You cannot have people invading your room, you’d want to look after yourself”.
20. I am satisfied that this teacher, who had been a member of the Teachers Union of Ireland Committee that had spoken to Dr. C. in 2006, on behalf of the plaintiff, reasonably and rationally interpreted this statement by Dr. C. as a threat, that he would suffer some detriment for speaking to the plaintiff and not insisting that she leave his room immediately. I find that Dr. C. had full authority to circulate a notice to all the teachers that they should not enter a colleague’s classroom while a class was in progress. I am satisfied that on this occasion Dr. C. was referring solely to the plaintiff whom he disparagingly described as having “invaded” this other teacher’s classroom. I find that this intervention at this time and in these terms by Dr. C. was a destructive and malicious targeting of the plaintiff and amounted to bullying of the plaintiff within the definition of the March 2003 Code of Practice to which both Dr. C. and the plaintiff had subscribed and had invoked. But apart altogether from that definition in my judgment these words were hostile, offensive, unnecessary and disparaging to the plaintiff who was a very senior teacher in the college and would amount to “bullying” within the meaning of the 2002 (now 2007) Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying At Work, or even within the ordinary dictionary definition of that word. In my judgment a particularly vicious form of bullying involves isolating the victim in the work place by influencing others by actual or suggested threats to their own interests and by undermining the victim’s standing in the organisation and amongst colleagues by disparaging references. In my judgment this was the first indication of a firm determination on the part of Dr. C. to brook no positive interference, as he saw it, by the plaintiff in his management of the college.
21. The plaintiff told the court and, this teacher accepts, that the plaintiff left his classroom and ran down the corridor and into the ladies restroom which was about twenty feet away. He said that Dr. C. was not in the corridor at this time. I accept the evidence of Dr. C. that he had gone back to his office and had telephoned the Deputy-Principal and the Rev. Chairman of the Board of Management to advise them of what had occurred. I accept his evidence that he did not know when the plaintiff had left the classroom or where she had gone. The plaintiff gave evidence that when she emerged from the ladies restroom Dr. C. was waiting outside the door. She said that she walked down the corridor and he followed. She then ran into the home-School Liaison room and into her office adjoining that room and locked the door. Using her mobile telephone she immediately contacted two female colleagues, who were the then teachers’ representatives on the Board of Management of B.C.C. When they arrived she unlocked the door and told them what had occurred.
22. I reject as utterly improbable this evidence of the plaintiff that Dr. C. had waited outside the ladies rest room for ten minutes until the plaintiff re-emerged. Dr. C. told the court that the first time this suggestion had been made was during the hearing of the action. I doubt very much if even the most crass and insensitive pupil would do such a thing. While in that room the plaintiff could not have known where Dr. C. was. I believe that it was entirely coincidental that Dr. C. was walking down the corridor when she re-emerged from the ladies restroom. Dr. C. is a married man. He is, as the Rev. former Chairman of the Board of Management very aptly described him, “the Managing Director” of a considerable enterprise. The door to the ladies restroom is on a corridor of the college along which all manner of persons pass and re-pass. It is in my view therefore, an indication of what Dr. Mohan described as “disturbed perceptions” that the plaintiff should make such an allegation against Dr. C..
23. Unfortunately, the matter did not end here. The plaintiff and one of the other teachers whom she had summoned gave evidence that after the plaintiff had unlocked the Home-School Liaison room door, they saw Dr. C. looking in the window of the room from the yard outside the window. I am satisfied that the evidence establishes that this window is approximately eight feet in length and eighteen inches in height. It is made of Perspex, approximately one third of an inch thick which over the ten years of its existence had become discoloured, yellowed and clouded. In addition this window is covered throughout its length by very old and dusty thick net curtains hung in place in the 1970s. Further, the window is generally very dusty on the outside. I am satisfied on the evidence that during daylight hours a person inside this room looking out could only see the shadow of someone outside the window looking in with not even sufficient outline definition to determine whether that person was male or female. If the plaintiff and this other teacher saw someone outside the window on this occasion, I am satisfied that because of the previous events they surmised that it was Dr. C.. I accept his evidence that he did not go out into this yard and look in the window of the Home-School Liaison room.
24. I am satisfied that the events of the 24th October, 2007, when the plaintiff was recorded in the college attendance book as having been absent from work when she was in fact attending an authorised “In-school training course” and ought to have been marked “In service” was a simple mistake. I am also satisfied on the evidence that this mistake was rapidly corrected and that the plaintiff suffered no financial loss as a result of the error. I do not accept that this incident was deliberately contrived by Dr. C. to bully or to harass the plaintiff.
25. On the 20th November, 2007, a further confrontation occurred between the plaintiff and Dr. C.. The parent of a pupil in the school was loudly abusing another teacher for disciplining her son, (he had told that teacher to “shut up”). I find on the evidence, particularly by reference to a contemporaneous note made by the teacher in question and to a letter written by her to the Board of Management and dated the 13th December, 2007, that Dr. C., who just happened to be in the vicinity, heard the noise and came into the classroom and tried to mediate between this teacher and the parent. I accept the evidence of the teacher that she then noticed the plaintiff, with whom she was not on speaking terms, standing in the doorway of the classroom. Dr. C. gave evidence, which I accept, that the plaintiff ought not to have been there at all. I accept the evidence of this teacher and of Dr. C. that he was insisting that the parent go with him to his office to discuss the matter. Instead this parent ran over to the plaintiff who asked her if she was all-right to which the plaintiff replied, “Do you see what’s happening here”. The plaintiff told the court that as Home-School Liaison Coordinator she considered that she had a duty to represent all disadvantaged parents. I accept the evidence of Dr. C. that the plaintiff then advised the parent not to go with Dr. C. to his office unless someone else also went and that she should write to the Board of Management of B.C.C. about the matter. I am satisfied on the evidence that the parent then said that she would not go with Dr. C. to his office unless the plaintiff accompanied her. This was not acceptable to Dr. C.. I find on the evidence that he went over to the plaintiff in the doorway and said to her, “I am giving you an order, I am directing you to return to your room”. The plaintiff returned to her room and the parent went with Dr. C. to his office. Later the teacher was sent for and the parent apologised to her and they shook hands. I find that the plaintiff had no reason to come to or to remain in the door of this teacher’s classroom and, had no right or duty to interfere as she did. Her advice to the parent in the circumstances was grossly irregular, offensive to Dr. C. and, a challenge to his authority as Principal of the College. I find that Dr. C. on this occasion acted properly and proportionally and entirely within the scope of his authority as Principal of B.C.C. I find that on this occasion he neither bullied nor harassed the plaintiff.
26. I find that the quite extraordinary events which occurred at B.C.C. on the 26th November, 2007, came about because the plaintiff was by this time in effect working entirely independently of Dr. C. and the Deputy-Principal of the College. An aspect of this unsatisfactory state of affairs was that the plaintiff was seeking to adhere to a time-table which she had operated prior to September 2005, or, to a new time-table prepared for her by another teacher, but which had not been approved by the Deputy-Principal or even seen by him. I find that the Deputy-Principal, whose sole prerogative it was to approve the daily time-table for the entire College was now also being avoided by the plaintiff who had come to regard him as a supporter of Dr. C.. I find that the Leaving Certificate class which was scheduled, by reference to the college time-table, prepared by the Deputy-Principal, to use the computer room in the College at the time was unable to enter this room because the door was locked and the room was occupied by the plaintiff who was teaching computer skills to three parents of pupils at the college as part of the Home-School Liaison programme. I do not consider it necessary to determine how to by whom the door came to be locked. One of the school caretakers gave evidence that and had unlocked the door to this room. He saw the plaintiff entering the room and he had informed her that by reference to the daily time-table which he had been given that morning by the Deputy-Principal that another class was due to use the room. This class of about fifteen pupils had then arrived. The caretaker said that he went and told the Deputy-Principal that there seemed to be a double booking and that this class was unable to access the computer room and was standing about in the corridor. Significantly, the Deputy-Principal told the court that he had said to Dr. C. that he would deal with the matter as it was his problem and, accompanied by the caretaker immediately went to the area. For some unstated or unexplained reason, Dr. C. had followed. There can be no doubt on the evidence that the door of the computer room was now locked and that the Deputy-Principal knocked loudly on the door which was not opened. As neither the Deputy-Principal nor Dr. C. had keys with them, the caretaker who had a key then unlocked the door to this classroom. I am satisfied that the Deputy-Principal entered the room first followed by Dr. C. I am satisfied on the evidence that they did not “bang” into the room shouting and waving their hands about as alleged by the plaintiff.
27. I find on the evidence, with particular reference to a contemporaneous note made by Dr. C. on the 26th November, 2007, that as soon as he and the Deputy-Principal entered the room, the plaintiff, who had been standing beside a parent at a computer console, turned towards them saying loudly, “Here’s the Principal and the Deputy-Principal coming to bully me”. I am satisfied that the Deputy-Principal then told the parents that there had been a misunderstanding over booking and asked them to turn off the computers and to leave the room as another class was waiting. The parents hesitated, – a wholly natural reaction in the circumstances, – and I accept that Dr. C. and the Deputy-Principal then moved around the room saying “Come on, come on, out you go, out you go”. The plaintiff then protested that they were properly in the room as she had booked it and she pointed to a time-table fixed to the back of the door. The Deputy-Principal told the court that he had examined this A-4 size document and that he had never seen or approved of it. The plaintiff then told the parents not to leave the room and to continue with their work. Dr. C. pointed out that he was the Principal of the College and insisted that they leave. One of the parents told the plaintiff to telephone the Department of Education and the plaintiff had replied that she did not know the number. The evidence clearly establishes that Dr. C. then said to this particular parent, “Turn off that computer or I will call the gardaí”. To this the parent responded, “Well get them then”. The plaintiff then used her mobile telephone to summon the two teachers who were then serving as Teachers Representatives on the Board of Management of B.C.C.. Dr. C. said to the plaintiff “Don’t get another teacher out of her class”. One of these ladies then arrived followed very shortly by the other. One of them suggested to Dr. C. that perhaps both groups could use the computer room simultaneously. Dr. C. would not agree to this proposal and I am satisfied that his reasons for not agreeing were rational and reasonable. The parents then left the computer room and went with the plaintiff to the Home-School Liaison room. One at least of the parents wrote to the Board of Management of B.C.C. about this incident.
28. In my judgment, the behaviour of Dr. C. towards the plaintiff on this occasion was oppressive and bullying. However extremely provocative the plaintiff’s own behaviour may have been and however much her actions may have been interfering with the smooth running of the college on the 26th November, 2007, she should not have been publicly disparaged and humiliated by Dr. C. in front of the parents present. Her countermanding his direction to the parents to leave the computer room may properly be regarded as a amounting to scandalous insubordination. However, in my view it did not cause the bullying but was a consequence of it. I find that there was no necessity at all for Dr. C. to have been in the room on this occasion. The Deputy-Principal could have dealt with the matter as a simple double booking of the computer room, something which the evidence showed had happened in the past. But having chosen to enter, Dr. C. should have disregarded, for the moment at least, the locked door and the plaintiff’s first remarks, explained the position to her with regard to the other class and asked her to inform the parents present of the difficulty and invite their cooperation in the matter. In the event, he treated her and the parents as trespassers and trouble makers. It is significant that Dr. C. told the court that he had felt slandered and undermined and that the plaintiff was embarking on a course of confrontation with the management. Dr. C. later telephoned the Rev. Chairman of the Board of Management who promised to raise the matter at the meeting of the Board scheduled to take place on the 12th December, 2007. If it was raised no action was taken. By letters dated the 28th November, 2007, and the 14th December, 2007, Dr. C. invited the plaintiff to meet him and the Deputy-Principal to discuss the incidents of the 20th November, 2007 and the 26th November, 2007. However, the plaintiff was unable to see her way to attending such a meeting insisting that the matter was something which required to be dealt at Board of Management level and involving her solicitors.
29. The evidence in this case establishes, in my judgment, that the plaintiff considered that she was entitled to very considerable autonomy in the running the Home-School Liaison Programme at B.C.C.. It was never suggested by anyone during the course of the hearing that the plaintiff was anything other than a skilled, experienced and dedicated teacher. However, she no longer communicated with Dr. C. the Principal of the College or with the Deputy-Principal of the College. Having retaken her place on the C.A.R.E. Team on the 17th April, 2007, on resuming her position as Home-School Liaison Coordinator, the plaintiff, following a number of disagreements with other members of the Team who had complained that she was dominating the proceedings at meetings and, because she said that the “body language” employed by other Team members was discouraging her at these meeting, ceased to attend the meetings or to report to the CARE Team after the 13th October, 2007. The effect of this was that from the 13th October, 2007, onwards nobody in authority in B.C.C. really knew where the plaintiff was or what she was doing during her working day. I am however satisfied that she was carrying out her duties as Home-School Liaison Co-Coordinator with the same dedication as she had always devoted to her work.
30. Dr. C. for good and sufficient reasons in my judgment, in September, 2007, had declined to permit the plaintiff to function in the college in the specific role of a Counsellor/Psychotherapist. He advised her that it was ultimately a matter to be decided by the Board of Management of B.C.C., but that he would feel obliged to argue against such an appointment. I do not accept the plaintiff’s contention that by permitting her to do the degree course, Dr. C. had thereby agreed that she would become a Counsellor in the College. Unfortunately, the plaintiff saw this as yet another form of bullying of her by Dr. C. I am quite satisfied that it was not. His decision was taken within the scope of his authority and, as I have already found for reasons which were both rational and reasonable.
31. I find that since her return to B.C.C. on the 28th March, 2007, the plaintiff had been continuously treated by Dr. C. in a bullying and aggressive manner. She had been marginalised and treated by him with unrelenting hostility and contempt. This “freezing out” as she aptly described it caused the plaintiff anxiety and stress. She found particularly hurtful and damaging the fact that when addressing others in her company Dr. C. totally ignored her as if she was not there at all. For anybody, but especially a woman and a senior teacher in the college, this was a particularly savage form of bullying, targeting her and clearly designed to break her will to disagree with any future decisions of his. In all his dealings with the plaintiff after the 28th March, 2007, I find that Dr. C. behaved like an offended tyrant and not as a fellow teacher and long time colleague of the plaintiff who had been appointed to the senior management position in the college. It is certainly not an excuse for this conduct on his part that the plaintiff’s own behaviour in this period, in general and towards him in particular, was inappropriate and, should not have been tolerated by the Board of Management of B.C.C..
32. I find, that at the end of November 2007, Dr. C. had started to become anxious and concerned because of his almost total lack of information as to where the plaintiff was or what she was doing during college hours in her capacity as Home-School Liaison Coordinator. I accept his evidence that he had come to be concerned that the college and its Board of Management might become involved in legal or other problems arising out of the plaintiffs’ unreported and unsanctioned activities as Home-School Liaison coordinator. I accept his evidence that he was particularly anxious because were such to occur he considered that he would be criticised or held responsible because as Principal of the college he had an obligation to the Board of Management of B.C.C. and to the Department of Education to ensure that all teachers were fully and properly discharging their duties. In these litigious and confrontational times I am satisfied that this was a genuine and reasonable concern on the part of Dr. C..
33. Considerable controversy arose during the hearing of this action as to whether a letter dated the 15th December, 2007, from Dr. C. to the Rev. Chairman of the Board of Management of B.C.C. setting out in detail the problems he was experiencing with the plaintiff in the day to day management of the college, was in fact written on that date or whether it was written later and backdated in order to justify his employment of a private investigator to carry our surveillance on the plaintiff. I am satisfied on the evidence, particularly by reference to the contemporaneous diary entry by the Rev, Chairman of the Board of Management that this letter was handed to him by Dr. C. in the college on Wednesday, 19th December, 2007. I am also satisfied that the Rev. Chairman adverted to this letter at the meeting of the Board of Management held on the 10th January, 2008, and, that incomplete transcripts of this letter on yellow paper were on the Board table at this meeting but were not actually distributed to the individual Board members. I am satisfied that there was a brief discussion about this letter at the meeting and that the Board decided to invite Dr. C. and the plaintiff to attend a meeting of the Board on the 17th January, 2008 and explain their respective difficulties. I am satisfied on the evidence that Dr. C. was willing to adopt this course. However, by a letter from her solicitors, the plaintiff indicated that she was not prepared to attend at such a meeting without her solicitor being present as she had concerns about the impartiality of the Board. This was unacceptable to the Board and the meeting did not take place and no further action was taken by the Board of Management.
34. The letter dated the 15th December, 2007, again came before the Board of Management of B.C.C. when a further letter of complaint dated the 2nd April 2008 from Dr. C., and which referred to his earlier letter of the 15th December, 2007, was placed before the Board of Management by its solicitors. However, by this time the matter had passed into the field of litigation and the Board of Management did not consider it further until the 1st October, 2008. On that date the Board of Management under its present Chairperson, having taken advice from the National Coordinator of Home-School Liaison Schemes wrote to the plaintiff seeking details of plans, records, identity of families visited and other matters. After further written requests the matter concluded with a letter from the solicitors for the plaintiff to the Board of Management stating that, “As soon as she is medically fit we will hold a consultation to deal with your queries”. This quite extraordinary situation was resolved by the plaintiff requesting and being granted permission by the Department of Education to take early retirement.
35. This problem as to the authenticity of the letter dated the 15th December, 2007, of the letter dated the 2nd April, 2008, and of the minutes of the meeting of the Board of Management on the 5th December, 2006, all arose because several different texts of these letters and of these minutes were disclosed and put in evidence before the court during the course of evidence. While I consider that the trenchant criticism and close scrutiny by Senior Counsel for the plaintiff of what appears to have been a quite extraordinary practice on the part of Dr. C. of adding to these documents after they had been sent or circulated was entirely justified, I am not satisfied that this was done with a deliberate intent to mislead, though in fact that could well have been the result. I accept that the partial transcription of the letter of the 15th December, 2007, on yellow paper was simply that and nothing more and that it is quite unnecessary to endeavour to discover why or by whom this was done. I am satisfied that this letter of the 15th December, 20007, was a wholly genuine attempt on the part of Dr. C. to persuade the Board of Management of B.C.C. to take action in the matter. I am equally satisfied that what they did, though well intentioned, was altogether too little and too late.
36. It is unnecessary for me to consider what other course Dr. C. might have adopted in these circumstances. I am satisfied that he had endeavoured but with no success to persuade the Inspectorate of the Department of Education to become involved. Suffice it to say that I find that the course which he did in fact choose to pursue was wholly inappropriate. I find that the decision of Dr. C. on the 10th January, 2008, to engage the services of a private investigator for four days in early February 2008, to carry out a covert surveillance on the plaintiff during college hours amounted to a most serious harassment of the plaintiff by him. The activities of this private investigator were brought to an end by the intervention of An Garda Síochána and by an Order of this Court (Laffoy J.) made at the suit of the plaintiff on the 10th April, 2008. I find that the plaintiff has not established on the balance of probabilities that on the 15th September, 2008, and the 16th September, 2008, Dr. C. in breach of the Order of this Court made on the 10th April, 2008, again himself followed the plaintiff.
37. I accept the evidence of the plaintiff that on a number of occasions in December 2007, in the course of her work as Home-School Liaison Coordinator at B.C.C. she found it necessary to drive to the two Resource Centres associated with the college. She claims that on a number of these occasions she was followed by Dr. C. in his motor car. I am satisfied that she reported her concerns to the two teacher representatives on the Board of Management of the B.C.C. and to the three college committee members of the Teachers Union of Ireland. They do not appear to have taken any action in the matter. One must acknowledge the right of Dr. C. as Principal of B.C.C. to visit these Resource Centres whenever he saw fit or the occasion required. Dr. C. denied that he followed the plaintiff on any occasion. There seems little doubt that on one occasion when the plaintiff claims Dr. C. had followed her to one such Resource Centre that he was in fact there to meet members of An Garda Síochána in relation to a break-in and serious vandalism at the centre. I am not satisfied that the plaintiff has discharged the onus on her of establishing on the balance of probabilities that she had been bullied by Dr. C. by being monitored and stalked by him in this fashion.
38. I am satisfied from the evidence and, from my observations of the plaintiff in giving evidence, that she is a lady well capable of asserting and defending what she considers to be her rights. Nonetheless she is still a woman and for a woman on her own to have two men following her about in a car during her working day must be been a truly terrifying experience for her. I unhesitatingly accept her evidence with respect to these events. It is necessary to give a brief summary of what I accept occurred on the 7th February, 2008, and some other days.
39. When the plaintiff drove away from her home on the 7th February, 2008, at 09.15 hours she felt that she was being followed by another motor car with two occupants. She took various evasive measures but this care remained following hers. She made a mobile telephone call to her daughter who appears to have taken the not unreasonable view that her mother was suffering from over vigilance due to work related stress and sought to reassure her. The plaintiff was not reassured and made a mobile telephone call to her brother and explained her fears to him. He advised her to keep a close watch on this car and to keep in contact with him. When the plaintiff parked her motor car at B.C.C. she observed this other car being parked nearby.
40. On entering the college the plaintiff told one of the teachers representatives on the Board of Management whom she felt she could trust, what was occurring. She then informed one of the clerical staff in the college office that she was going to one of the Resource Centres. On arrival at this Resource Centre the plaintiff noted the same motor car parked nearby. On concluding her business at the Resource Centre the plaintiff carried out about seven home visits as part of her duties as Home-School Liaison coordinator. This car continued to follow her even when the house being visited by the plaintiff was situated in a cul-de-sac.
41. The plaintiff noted that one of the men in this car was wearing a yellow coloured helmet of a type worn by builders. I accept the plaintiff’s evidence that she felt hunted, threatened and terrified. She made another mobile telephone call to her brother. Acting on his instructions she noted the registration number of the car that was following her and telephoned the emergency number and explained the situation to An Garda Síochána. Subsequent Garda intervention ascertained that the plaintiff was being followed a private investigator personally employed by Dr. C. without the knowledge or approval of the Rev. Chairman or of the Board of Management of B.C.C..
42. Despite being fully aware of the plaintiff’s long and totally uncharacteristic absences from work, in 2005, 2006 and 2007, medically certified on each occasion as being due to work related stress, which he knew, or would have known had he chosen to consider the matter, rendered the plaintiff very vulnerable to some form of mental illness such as nervous breakdown, Dr. C. arranged for this single lady to be stalked by a private investigator. I find that it was reasonably foreseeable by him, that if the plaintiff for whatever reason, accident, her own hyper vigilance or the ineptitude of the investigator, became aware of being pursued by an unknown male the effect upon her was likely to be so traumatic as to precipitate her, vulnerable as she was, into mental illness. It was not necessary that he should have been able to foresee the actual injury ultimately suffered by the plaintiff. For Dr. C. to have so acted, whether deliberately or with reckless indifference even though he was or ought to have been aware that mental harm to the plaintiff might result from his actions, amounted in my judgment to malicious targeting and harassment of the plaintiff. I find it significant that Dr. C. did not seek prior sanction from the Board of Management of B.C. C. for this extraordinary course of action. Even if he believed that members of the Board whom he considered to be well disposed towards the plaintiff might warn her of his intentions, he did not consult the Rev. Chairman of the Board as he had in the case of other difficulties with the plaintiff since the 28th March, 2007.
43. It is well established in this jurisdiction, both at common law and now by s. 15 of the Employment Equality Act 1998, that even if the Board of Management of B.C.C. did not know or could not reasonably have known (which was not the situation in the present case), that the plaintiff was being bullied and harassed by Dr. C. in the course of her work, it is still vicariously liable for the wrongful acts of Dr. C. once those acts were committed by him within the scope of his employment. If find that the Board of Management of B.C.C. did not authorise any of the acts of Dr. C. which I have held amounted to bullying or harassment of the plaintiff. The Board of Management of B.C.C. was not aware that Dr. C. had engaged the services of a private investigator to carry out covert surveillance of the plaintiff during the course of her work which I have found amounted to harassment of the plaintiff. However, all these acts took place during the official school day and, in my judgment were related to his work and were a wrongful way of performing the task which Dr. C. as principal of B.C.C. was authorised to perform, that is, to manage the business of the college. This involved ensuring that teachers were present and were carrying out their duties properly and responsibly. The Board of Management of B.C.C. decided at its meeting on the 6th March, 2008, having queried Dr. C. at length about the matter, that he had acted within the scope of his employment in engaging the services of the private investigator and in paying for those services out of a college fund administered by Dr. C. Therefore, the vicarious liability of the Board of Management of B.C.C. for the acts of Dr. C. is not an issue in this case. What are involved are issues of foreseeability, causation and damage.
44. On the 22nd December, 2006, Dr. McMahon who had been the plaintiff’s General Medical Practitioner since 1980 concluded that the plaintiff was then suffering from anxiety disorder: prior to this his diagnosis had always been one of stress due to being bullied at work. On the 1st September, 2006, he had advised the plaintiff to take time off from work to recover from this stress which he attributed to being bullied and harassed at work by Dr. C.. On the 27th March, 2007, Dr. McMahon was satisfied that the plaintiff was sufficiently recovered to return to work and he noted that she was very keen to do so. The plaintiff did return to work on the 28th March, 2007, and, despite the events described previously in this judgment, it was not until the 1st April, 2008, that she again felt a need to consult Dr. McMahon.
45. On this occasion the plaintiff complained of being very anxious, unable to sleep, distressed and worried. Her complaint was that she had been followed on her house visits as Home-School Liaison Coordinator by a private investigator engaged by Dr. C.. She felt very despondent that the Board of Management of B.C.C. would do nothing. On this occasion, Dr. McMahon formed the opinion that the plaintiff was bordering on depression. However, he did not prescribe anti-depressants or anti-anxiety medication. He told the court that this was his normal practice as he considered that drug therapy should always be the option of last resort because of the danger of a patient becoming drug dependent.
46. The plaintiff presented again on the 28th August, 2008, following the death of her father, to whom she was very close. On that occasion she told Dr. McMahon that she was, “still fighting for her work conditions and trying to reinstate her service to pupils and parents”. On the 2nd October, 2008, the plaintiff next visited Dr. McMahon. He found her depressed. She asked to be referred to Dr. Abbie Lane, a consultant psychiatrist. Dr. McMahon agreed. He told the court that since she had first become his patient in 1980 and despite a difficult marriage and a very traumatic separation, the plaintiff had never previously needed such a referral. Department of Education sick leave records show that Dr. McMahon issued medical certificates to the plaintiff on the following dates: 9th September, 2008, 10th September, 2008, 2nd October, 2008, 20th October, 2008, 27th October, 2008, 17th November, 2008, 24th November, 2008, 10th December, 2008, 22nd December, 2008, 9th January 2009, 19th January, 2009, 26th January, 2009, and finally on the 9th February, 2009.
47. In cross examination Dr. McMahon accepted that he had never diagnosed the plaintiff as suffering from clinical depression or from any form of psychological or psychiatric illness. He considered that the plaintiff was suffering from severe stress and anxiety which he considered to be a psychological crisis but not an illness. He considered that the plaintiff should see a consultant psychologist, but she asked to be referred to Dr. Lane. She was seen by Dr. Lane on the 10th November, 2008. Dr. McMahon told the court that he had last seen the plaintiff on the 4th December, 2008. On that occasion she had told him that she had decided that resuming work was out of the question. He said that he was not at all in favour of this. He hoped that the plaintiff would resume her work as a teacher which she obviously enjoyed and he tried to persuade her to this effect. He considered that it was too early for her to retire and that it was not in the best interests of her own psychological welfare to retire. He felt that on this occasion she could overcome her problems just as she had done in relation to the very traumatic separation in 1999/2000.
48. Dr. Lane, a consultant psychiatrist, told the court that she saw the plaintiff for the first time on the 10th November, 2008, on referral from Dr. McMahon. On presentation, the plaintiff appeared stressed and pale and wept frequently during the consultation. The plaintiff complained of down mood present all day every day for more than two weeks, lack of interest in or enjoyment of everyday things, disturbed sleep, loss of appetite, constant fatigue, lack of motivation and, poor concentration. Dr. Lane concluded that the plaintiff was suffering from severe clinical depression with an overlay to post traumatic stress disorder. Because of the plaintiff’s description of feeling hopeless and worthless, Dr. Lane considered that there was a possible risk of self-harm and endeavoured, unsuccessfully, to persuade the plaintiff to undergo a period of in-patient treatment. She therefore prescribed anti-depressant and anti-anxiety medication, – Lustral, – at the maximum permitted dosage.
49. Dr. Lane reviewed the patient at two monthly intervals thereafter. By March 2009, she noted that the plaintiff’s mood had improved somewhat, but that she was still anxious, depressed and tearful. Dr. Lane considered that the plaintiff was just about able to cope with the normal chores of day to day living and was not fit to return to work. Throughout 2009, Dr. Lane provided the plaintiff with cognitive behaviour therapy. By June 2010, Dr. Lane was satisfied that the plaintiff was considerably recovered: her mood was up, she had recovered motivation and interest in things, her enjoyment of life had returned and she felt more hopeful. However, she remained anxious at times and was subject to occasional flashbacks and nightmares of persons following her. Dr. Lane concluded that the plaintiff was no longer depressed and was able to go out on her own without being overanxious or over vigilant. At this time Dr. Lane considered that the plaintiff was physically and mentally able to return to work at B.C.C. but she remained, very concerned that the plaintiff might become re-traumatised by a classroom incident, a difficulty with a parent or, continuing friction with the college administration or with colleagues on the teaching staff.
50. Dr. Lane produced in evidence the referral letter dated the 3rd October, 2008, sent to her by Dr. McMahon. This letter referred to bullying and harassment at work and to the fact that the plaintiff’s father had died recently. Dr. McMahon also referred to the fact that on the previous day he had detected what he considered to be signs of a depressive illness. It was Dr. Lane’s expert opinion, which I accept, that given the plaintiff’s history, the death of her father was not the cause her symptoms, though it probably added to her low mood. The fact that these symptoms had continued even though the plaintiff was away from the work environment since the 1st October, 2008, was an indication to Dr. Lane of the severity of the plaintiff’s depressive illness. I am satisfied that Dr. Lane was not shaken in her opinion that there was no other reasonable or rational explanation for the plaintiff’s illness in her history, other than the alleged bullying and harassment. Dr. Lane told the court that the plaintiff had informed her that on the 20th October, 2007, the Investigating Officer under the Code of Procedure had found that she had not been harassed or bullied at work in relation to the matters then at issue. The plaintiff told Dr. Lane that she did not accept this conclusion and that the bullying and harassment by Dr. C. had continued despite the investigation. Dr. Lane conceded that the investigation and its outcome would have had a traumatic effect on the plaintiff. However, she stated that she was quite satisfied by reference to the entire history that this was not what had caused the plaintiff’s illness: in her opinion that was the workplace situation. Dr. Lane accepted that prior to 1st April, 2008, there had been no diagnosis of depression in the plaintiff’s case. She told the court that constant stress and anxiety can lead to depression and that when she saw the plaintiff for the first time on the 10th November, 2008, she had no doubt whatever but that the plaintiff was then suffering from a psychiatric illness, – serious depression.
51. Dr. Lane told the court that in order to form a diagnosis that the plaintiff was suffering from severe depressive illness on the 10th November, 2008, she had to be satisfied that her symptoms had commenced no later than two weeks prior to the date of the consultation. However, given the severity of the plaintiff’s illness on that date she was satisfied that the plaintiff must have been suffering from depression for a very considerable time before that, probably for as long as two years. I find it very significant that on the 1st April, 2008, – almost five moths before her father died on the 25th August, 2008, – the plaintiff was diagnosed by Dr. McMahon as “bordering on depression this time”. Dr. Lane stated that she was aware that the plaintiff had applied to the Department of Education in 2009, for leave to retire on the basis of, “permanent ill health”. Dr. Lane stated that she was not aware that Dr. McMahon had strongly urged the plaintiff not to retire. Dr. Lane told the court that she did not have any role whatever in the plaintiff’s decision to retire.
52. Dr. Lane told the court that she was satisfied that the plaintiff was also suffering from post traumatic stress disorder. She said that the causative trauma was the threat to the plaintiff’s career and therefore her security, the feeling of helplessness in the face of the continuous bullying and harassment and, the profound threat to her core values. Dr. Lane considered that the accumulation of these matters would be sufficiently traumatic to induce post traumatic stress disorder in the plaintiff. In the plaintiff’s case she felt that all the classic symptoms of post traumatic stress disorder had become evident within the expected period: the plaintiff had intrusive memories of the events, nightmares and flashbacks, she was hyper aroused and tense which manifested itself especially in the form of hyper vigilance and hyper alertness, she avoided returning to the College, going out on her own, or anything which reminded her of the trigger events. However, Dr. Lane did not give evidence that the plaintiff had suffered a psychiatric injury because of an immediate fear for her own safety consequent on being followed by the two men. Dr. Lane admitted that she did not seek copies of Dr. McMahon’s’ clinical notes. I accept her explanation that she would not do so unless the plaintiff had a history of mental problems in the past. Dr. McMahon told the court without any reservation or equivocation that the plaintiff, in his medical opinion had not suffered from any psychiatric injury while she was under his care. No medical data studies or literature was advanced in support of the contention that a feeling of helplessness in the face of a perceived threat, not to one’s personal safety but to one’s career and not from a single traumatic event but from an accumulation of events over a period of nineteen months would be a sufficient trauma to give rise to post traumatic stress disorder.
53. It is significant that in the work, “Understanding Mental Health (Blackhall Publishing: 2006), which she produced in evidence by her, Dr. Lane at chap. 2, p. 27 states in respect of “post traumatic stress”, that:-
“This is a common condition which occurs some weeks after a person has been involved in or has witnessed a traumatic event. Examples include being involved in a road traffic accident, being held at gunpoint, being involved in a fire or an explosion. Symptoms come on between two and six weeks following the trauma . . . (etc.).”
54. In the circumstances and having regard to the decision this Court in Mullally v. Bus Éireann [1992] I.L.R.M. 722 and of the Supreme Court in Kelly v. Hennessy [1996] 1 I.L.R.M. 312 I find that the plaintiff has not established, – the onus of proof being on her, – on the balance of probabilities, that she suffered post traumatic stress disorder as a consequence of bullying or harassment by Dr. C..
55. Dr. Mohan a consultant forensic psychiatrist, who gave evidence in the case for the defendant, told the court that he had a consultation with the plaintiff on the 2nd December, 2008, and that he had also considered the following documents: the Report of the Investigating Officer dated the 26th October, 2007, the Pleadings in the instant case, the Clinical Records of Dr. McMahon, Dr. Lane’s Report, the Department of Education Attendance records relating to the plaintiff and, the views of Dr. C. and of his Solicitors. He accepted that the plaintiff did not have a personality disorder. However, he considered that she demonstrated an impaired judgment and a distorted interpretation of work place events, coupled with a tenacious sense of personal rights out of keeping with reality and, an excessive regard for her contribution to B.C.C.. Dr. Mohan agreed that he had come to this opinion principally from his analysis of the report by the Investigating Officer.
56. Dr. Mohan accepted that stress and anxiety, such as that reported by Dr. McMahon in his clinical notes relating to the plaintiff could be a significant causative factor in the onset of depression. However, he felt that the fact that the plaintiff had continued to work after the incident involving the private investigator in early February 2008, until the 1st October, 2008, with only very few days absent was, more consistent with stress than with clinical depression. Dr. Mohan told the court that if the plaintiff was in fact suffering from severe depressive illness on the 10th November, 20008, as was the opinion of Dr. Lane, he considered that evidence of the onset of that illness would have to be sought at least six months prior to that date, but not as far back as two years. He noted that the plaintiff had received no medical treatment for depression prior to the 10th November, 2008. Dr. Mohan considered that the very considerable emotional stress and feeling of victimisation reflected in Dr. McMahon’s clinical records, compounded by feelings of disappointment and anger on the 26th October, 2007, following receipt of the Investigating Officer’s report, followed by the death of her father, to whom she was very close, on the 25th August, 2008, could be capable of causing the plaintiff to become depressed. However, he considered that there was no evidence on the medical record of severe and persistent symptoms, at any rate prior to the 1st April, 2008. It was his opinion that the plaintiff was suffering from anxiety and stress as a normal response to the pressures and problems in the work place.
57. I find on the balance of probabilities that the plaintiff has discharged the onus on her of establishing that she did suffer a psychiatric illness, in the form of clinical depression and, that a direct causative connection existed between that injury and the continuous bullying and harassment of her by Dr. C. from the 28th March, 2007, onwards. The evidence established that Dr. McMahon considered that the plaintiff was fit to return to work on the 28th March 2007, and he furnished a medical certificate to that effect. I accept his evidence that the plaintiff was herself most anxious to return to work at that time. On the 1st April, 2008, Dr. McMahon found the plaintiff to be, “bordering on depression”. This was almost five months before her father died. Undoubtedly she continued to work, but it is not at all unusual for persons suffering from depression to continue to work and from what I observed of this plaintiff, I am satisfied that this would be entirely in keeping with her character. I am prepared to infer that the distress which the plaintiff experienced following the death of her father as noted by Dr. McMahon in his clinical notes for the 25th August, 2008, may have temporarily lowered her mood further, if it was already low. However, I am satisfied from her personal and medical history and from the evidence of Dr. McMahon based upon his unique insight into her character and psyche, as her general medical practitioner for over 30 years, that this bereavement did not cause or materially contribute to the onset of her depression which was noted for the first time by Dr. McMahon a few weeks later on the 2nd October, 2008.
58. Dr. Lane treated the plaintiff for depressive illness from the 10th November, 2008, to June 2010, by which time she considered the plaintiff was fit to return to work. Dr. McMahon agreed and Dr. Mohan accepted that the onset of depressive illness would be consistent with the sort of work place problems which the plaintiff claimed she was experiencing at the hands of Dr. C.. There was no evidence at all to suggest that the plaintiff had a pre disposition to depression even if an older sibling suffered from that illness. The evidence of Dr. McMahon, in my judgment, entirely disposes of that suggestion. I find that Dr. Lane is correct in her conclusion that apart from the constant stress and anxiety suffered by the plaintiff between the 28th March, 2007 and the 7th February, 2008, culminating in the traumatic events of the 7th February, 2008, there is nothing in the plaintiff’s life to otherwise account for the clinical depression suffered her. It was not suggested during the course of the action that the plaintiff was feigning illness or exaggerating her symptoms.
59. Whatever would have been the position in 2005 or 2006, I am satisfied, and I so find, that on the 28th March, 2007, Dr. C. knew or ought reasonably to have foreseen that any bullying or harassment of the plaintiff carried a “materially substantial risk” of the plaintiff suffering a mental injury as a result and could by the exercise by the reasonable care have avoided that result. Dr. C. and the Board of Management of B.C.C. knew that the plaintiff had been absent from work for a number of weeks in November and December 2005, certified by Dr. McMahon as suffering from work related stress. They knew that between the 31st August, 2006 and the 27th March, 2007, the plaintiff had been certified by Dr. McMahon as unfit for work due to work related stress. In my judgment this history of occupational stress put Dr. C. on notice that the plaintiff was vulnerable to some form of mental injury if she was subjected to further stress arising from such as would inevitably follow from bullying or harassment at work. Dr. C., despite the poor start on the 28th March, 2007, could have apologised to the plaintiff for his outburst, welcomed her back and sought to effect a reconciliation between them or if that was not possible, to at least try to work out a modus viviendi with her. If it proved impossible to re-establish even a professional working relationship with the plaintiff, then Dr. C. should have immediately called on the Board of Management of B.C.C. to intervene and to insist that the plaintiff cooperated fully with him in carrying out her duties as Home-School Liaison Coordinator. This is something which a reasonable and prudent manager would have done in the circumstances. Dr. C. ought reasonably to have known in commissioning the surveillance, that if the plaintiff became aware that she was being followed about in public by two unknown men and became frightened as a result, there was a clear and substantial risk that she would suffer a nervous breakdown, post traumatic stress disorder, depression, illusional disorder or some other form of mental illness.
60. Apart from being vicariously liable for the actions of Dr. C. the Board of Management of B.C.C. owed the plaintiff a direct duty of care, as her employer, both at common law band by virtue of the provisions of the Safety Health and Welfare at Work Act 2005, to take reasonable care to prevent her suffering mental injury in the workplace as a result of being harassed or bullied by other employees if they knew or ought to have known that such was occurring. (Quigley v. Complex Tooling and Moulding Limited [2009] I.R. 349). I am satisfied that in the post 28th March, 2007, period the Board of Management of B.C.C. ought to have known, from correspondence from the plaintiff’s solicitors, correspondence from the parents of pupils in the college and, from the personal knowledge of several members of the Board involved in the day to day business of the college that the plaintiff was continuing to claim that she was being victimised, bullied and harassed by Dr. C.. For the same reasons to which I have adverted in the case of Dr. C., the Board of Management ought reasonably to have foreseen that there was a materially serious risk that the plaintiff would suffer some form of mental illness if the situation between her and Dr. C. was permitted to continue.
61. Despite this, the Board of Management of B.C.C. took no reasonable or proper steps as the plaintiff’s employer to address the situation. Following receipt of the letter dated the 15th December, 2007, from Dr. C. the Board of Management following its meeting on the 10th January, 2008, did invite Dr. C. and the plaintiff to meet the Board on the 17th January, 2008, and set out their respective grievances. I am prepared to accept the evidence of the Rev. former Chairman and of the current Chairperson of the Board of Management that the Board was not aware of the full extent of the problems existing and that neither the teacher’s representatives nor the Union representatives on the Board had formally raised the matter before the Board. Nonetheless, between April 2007 and the 10th October, 2008, the Board was aware that the plaintiff and Dr. C. were not communicating with each other, that confrontations were taking place between them and that this was essentially the same sort of situation which had formed the basis for the plaintiff’s complaint of bullying and harassment by Dr. C. on the 4th October, 2006. However, was apart from the single offer to meet the parties on the 17th January, 2008, the Board of Management took no positive action whatsoever to deal with the situation which the Deputy Principal in evidence described as “catastrophic, totally strange, unusual and unreal”. I find that this failure of the Board of Management to act as a reasonably careful and prudent employer would have acted permitted the continuous bullying and harassment of the plaintiff by Dr. C. to continue to the point where the plaintiff began to suffer clinical depression. Dr. C. told the court that he was driven by desperation to engage the services of the private investigator because of the failure to the Board of Management and the Department of Education to take any action in the matter. The evidence of the Rev. former Chairman of the Board of Management and the evidence of the current Chairperson of the Board suggests that the reason why the Board did not act prior to the 10th October, 2008, was that the procedures under the Code of Procedure were slow and complex and, “the lawyers had turned the whole affair into a procedural wrangle and a legal morass”. Certainly the correspondence admitted or proved in evidence in the course of the trial might afford a reasonable basis for that belief. However, this does not provide a reasonable or proper ground for taking no action at all for ten months. In my judgment the Board of Management of B.C.C. was in breach also of the direct duty of care, which, as her employer, it owed the plaintiff.
62. In my judgment the evidence establishes that the plaintiff was subjected to deliberate and continuous bullying and harassment by Dr. C. as a direct consequence of which she suffered mental injury in the form of clinical depression, a result which was reasonably foreseeable. I am satisfied that from some short time after the 7th February, 2008, until June 2010, the plaintiff suffered a serious depressive illness. She has now recovered from this, but I accept Dr. Lane’s evidence that she remains at present anxious at times, is subject to occasional flashbacks and nightmares of persons following her and is vulnerable to becoming re-traumatised by any form of significant confrontation. However, neither Dr. Lane nor Dr. McMahon advised the plaintiff not to return to work or to take early retirement from teaching. On the contrary, Dr. McMahon strongly advised her against such a course. There was no evidence which would lead me to conclude that it would be irrational and unreasonable to expect the plaintiff to continue to serve as Home-School Liaison Coordinator or in some other teaching capacity in B.C.C.. She did so between the 7th February, 2008 and the 1st October, 2008 and with very few days absent from work. There is nothing I can see on the facts in this case which would in any way inhibit a simple and just resolution of the difficulties which have arisen between Dr. C. and the plaintiff which would enable them to continue to work efficiently together as professional colleagues, even if not as friends. The evidence in this case clearly established that it is quite usual for some teachers in large schools and colleges not to be on speaking terms with other teachers in the same school or college.
63. The court has already held that the defendants were negligent in causing or permitting the plaintiff to be harried, watched and beset in the course of her employment with the Board of Management of B.C.C.. I find that the same acts or omissions may form a basis for an action for breach of an implied term of contract. In Matthews v. Kuwait Bechtel Corporation [1959] 2 Q.B. 57, Sellers L.J. delivering the judgment of the Court of Appeal held at p. 66 as follows:-
“It is perhaps sufficient if I say that, in my view, this question is a somewhat artificial one. The existence of the duty arising out of the relationship between employer and employed was recognised by the law without the institution of an analytical inquiry whether the duty was in essence contractual or tortious. What mattered was that the duty was there. A duty may exist by contract, express or implied. Since, in any event, the duty in question is one which exists by imputation or implication of law and not by virtue of any express negotiation between the parties, I should be inclined to say that there is no real distinction between the two possible sources of obligation. But it is certainly, I think, as much contractual as tortious. Since in modern times the relationship between master and servant, between employer and employed, is inherently one of contract, it seems to me entirely correct to attribute the duties which arise from that relationship to implied contract. It is a familiar position in our law that the same wrongful act may be made the subject of an action either in contract or in tort at the election of the claimant, and, although the course chosen may produce certain incidental consequences which would not have followed had the other course been adopted, it is a mistake to regard the two kinds of liability as themselves necessarily exclusive of each other.”
64. In the instant case I think it will be found that the plaintiff elected to present her case in tort. In these circumstances I feel that it can only lead to confusion to deal further with implied contractual terms and remedies for breach of contract.
65. In my opinion the actions of Dr. C. in this case do not amount to what Griffin J. described in Conway v. I.N.T.O. [1991] 2 I.R. 305 at 323 as, “wilful and conscious wrongdoing in contumelious disregard of another’s rights”. In such circumstances the court is not disposed to awarding exemplary, otherwise punitive damages to the plaintiff. In the same case Finlay C.J. defined “aggravated damages” as 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) Conduct of the wrongdoer after the commission of the wrong: refusal to apologise or ameliorate the harm done, or threatening to repeat the wrong, or
(c) The conduct of the wrongdoer or his representatives in defending the claim up to and including the trial of the action.”
66. In my judgment the behaviour of Dr. C., towards the plaintiff in the present case was oppressive and arrogant and, I find caused her additional hurt and insult. I therefore consider that this is an appropriate for the court to mark its abhorrence of such conduct by awarding aggravated damages to the plaintiff. The court will therefore award damages to the plaintiff for the personal injuries which she has suffered to the date of this judgment in the sum of €60,000 of which the sum of €5,000 represents the increased amount of the compensatory damages. The court will award the plaintiff additional damages in the sum of €15,000 in respect of personal injuries which she may suffer in the future. €13,625 agreed specials.
Other Cases Referred to in Arguments
Educational Company of Ireland Ltd & Anor. v. Fitzpatrick & Others [1961] I.R. 345.
Kennedy & Others v. Ireland and the Attorney General [1987] I.R. 587.
Allen (Claimant) v. Dunnes Stores Ltd. (Jan. 1995) [1996] Employment Law Reports 203.
The Health Board v. B.C. & The labour Court (Jan. 1994) Employment Law Reports.
Maher v. Jabil Global Services Ltd. [2005] I.E.H.C. 1310.
McGrath v. Trintech Technologies Ltd. [2005] 4 IR 382.
O’Keeffe v. Hickey & Others [2009] 1 ILRM 490.
Kessopersadh v Keating
[2013] IEHC 317
Introduction
1. The plaintiffs are a husband and wife who have lived in Templeogue in Dublin for over 30 years. The first named plaintiff is an orthopaedic surgeon, now retired from surgery but still seeing patients in his home. The plaintiffs have eight children, all of whom are adults, who grew up in the family home in Templeogue.
2. On the 14th March, 2004 the plaintiff’s son Roshen, then a young man of 22, was involved in a road traffic accident which, tragically, caused the death of a pedestrian named Laurence O’Neill.
3. This action for damages arises, in essence, from the actions of the first, second and third named defendants, who are all members of An Garda Síochana, at and in the home of the plaintiffs on the morning of the 11th August, 2004. It is common case that these defendants entered and, to some extent at least, searched the dwelling of the plaintiffs and that they did so without consent. The central issue in the case is whether they did so lawfully.
4. In summary, the case on behalf of the defendants is that the Gardaí entered the house because the first named defendant, Sergeant Keating, had the lawful purpose of arresting Roshen Kessopersadh on suspicion of having committed the offence of dangerous driving causing death. As it happened, Roshen was not there when they called and his parents told the Gardaí so. However, the defendants maintain that the Gardaí were entitled to enter and search the house to verify that this was true.
5. The second and third named defendants were members of the Traffic Corps, who took no part in the investigation and were present at the plaintiffs’ house to assist the first defendant.
6. The plaintiffs contend that, firstly, suspicion as to the guilt of their son for the offence in question could not have been reasonably formed or held. In this regard they point, primarily, to the state of the evidence in relation to the accident. Ultimately, Roshen was charged only with the lesser offence of careless driving and was acquitted on that charge. Secondly, they say that the Gardaí should have been aware, because they had been previously informed and were told again by the plaintiffs on that morning, that Roshen was in fact abroad when the Gardaí came to the house.
7. It is a feature of the case that different Gardaí took different views as to the appropriate course of action available to them in the light of the evidence. It may therefore be necessary to point out at this stage that the issue to be determined by the court is not who was right as to whether Roshen Kessopersadh had in fact committed the arrestable offence of dangerous driving causing death. Rather, the first issue is whether or not the officer who intended to arrest him suspected with reasonable cause that he had done so. To answer this question it will be necessary to examine the evidence in some detail.
8. If that question is answered in the affirmative, the issue then arises as to whether the statutory conditions for entering a dwelling without the consent of the occupiers were fulfilled.
Background
9. Early in the morning of the 14th March, Roshen Kessopersadh was driving a Volkswagen Golf near his home on Templeogue Road in Templeogue. He was apparently on his way to collect his sister from a dinner party. Mr. Kessopersadh was fully licensed and insured and there is no suggestion that he had been drinking. At about 1.20 am he was involved in the fatal collision with Mr. Laurence O’Neill.
10. A taxi driver named Mr. McCabe, who did not see the accident but heard it, was the first person at the scene. A Dublin Fire Brigade ambulance arrived soon after and took Mr. O’Neill to hospital. Garda Brian Plunkett, who had been on patrol in the area, was the first Garda on the scene. Garda Plunkett spoke to Roshen Kessopersadh, who gave him his details. According to Garda Plunkett’s contemporaneous note, Roshen said “I was driving along Templeogue towards Terenure, I didn’t see him he just stepped out, I think from the middle of the road.” He also said that he had been on his way to collect his sister. Roshen made no further statement in the investigation, a fact that will be considered below. The plaintiffs arrived at the scene and he went home with them.
11. Inspector James Flood, who was deployed as Patrol Officer that night, arrived about 3 am. He and Garda Plunkett made various observations in relation to the location of the collision by reference to the position of the car and debris from it, the location of Mr O’Neill’s cap and other material.
12. At 5.30 am the death of Mr. O’Neill was confirmed.
13. At about 7.30 that evening Inspector Flood and Garda Plunkett called to the plaintiffs’ house. According to the plaintiffs, the Gardaí spoke to their son in their presence and made some notes but it is common case that they did not take a statement. Mr. Kessopersadh Sr. thinks the conversation lasted 30 to 40 minutes, while Mrs. Kessopersadh says it was about 20. It appears that they had contacted their solicitor, Mr. Noel O’Hanrahan, during the day. At some stage, but perhaps not on that day, he advised them that Roshen should not make a statement. Mr. Kessopersadh says that the Gardaí did say that Rosh en would have to go to Terenure Garda Station to make a statement. He and his wife both say that they told the Gardaí that evening that Roshen would be going to New Zealand at some stage to visit his sister, and that they were told to notify the Gardaí when the dates were confirmed.
14. Garda Plunkett has denied being told that at any stage and there is no reference to it in his notes. He says that he explained to Roshen Kessopersadh what way the investigation would proceed, that he was responsible for taking statements and putting the file together. It is agreed that he requested Roshen to come to the station and make a statement.
The investigation
15. There were no independent witnesses at the scene. A Garda checkpoint at the location and public appeal for information did not result in anyone coming forward. Mr. McCabe, the taxi driver who had been in the vicinity, made a statement in which he described hearing a bang and knowing that it was an accident. It is of some relevance that he did not refer to hearing the sound of braking.
16. Fire Officer Paul O’Reilly also made a statement in which he described measuring 11 paces “from the tonnage restriction sign on Templeogue Road to where the casualty was lying” and a further 5 paces to the rear of the Golf.
17. It transpired that Mr.O’Neill had been out with his two brothers that evening. Since it was too late for him to get a bus it was presumed that he was walking home. According to witnesses he had drunk about four or five pints. The toxicology tests showed a blood alcohol level of 350mg per 100ml and a urine alcohol level of 268mg per 100 ml. Although he was obviously well over the limit for driving, witnesses from the bar he had been in said that he had not shown any sign of incapacity.
18. Mr. O’Neill was wearing a black jacket, brown trousers and black shoes.
Garda findings in relation to the collision
19. A report on the collision was prepared by Sergeant Calm P. Finn of the Accident Investigation Unit, Regional Traffic Division, who attended at the scene on the 15th March, 2004.
20. Sergeant Finn noted that at the time of the accident the weather was fine although it had been raining earlier and the road was still wet.
21. As a result of his observations, he reached the view that the pedestrian crossed the road from the driver’s right-hand side and was struck by the car on its side of the road. The driver then braked and the pedestrian was thrown forward. Damage to the car was concentrated on the driver’s side.
22. Referring to the statements of the Fire Officer and the taxi driver, Sergeant Finn concluded that the pedestrian was struck on the offside front of the car near the driver and that there had been no skidding or braking before the impact.
23. The road itself was described as being primarily a single lane carriageway with a special speed limit of 30 mph. There is street lighting but Sergeant Finn noted a shadow on the road near the collision locus.
24. Sergeant Finn calculated the speed of the car at the instant of impact as being between 25mph and 31mph. He estimated, having regard to his age (56) and by reference to research carried out on walking speeds, that the late Mr. O’Neill was walking at three mph. Having regard to the evidence as to the point of impact and the relative speeds of the persons concerned he was of the view that Mr. O’Neill had walked seven metres on the road and that this took him 5.4 seconds. The driver of the car would have been between 60.48 and 73.82 metres back from the point of impact when the pedestrian commenced crossing the road. The impact took place at or near the centre white line.
25. By reference to the position at which the car came to a stop Sergeant Finn calculated that driver’s reaction time was between 1.3 and 2 seconds. The average driver reaction time, he says, is 1.5 seconds.
26. At the hearing of this action no issue was taken with these calculations.
27. In the opinion of Sergeant Finn, there was sufficient time and distance for the driver to react and avoid a collision.
28. Sergeant Finn’s report is undated and it is not entirely clear when the investigating Gardai received it.
29. The Volkswagen Golf driven by Roshen Kessopersadh was examined by Garda Seamus Bonar, a Public Service Vehicle Inspector. Apart from the damage caused by the impact, the vehicle was in good mechanical condition with no defects.
Contacts between the Kessopersadhs. their solicitor and the Gardai
30. Garda Plunkett’s evidence was that on some date that he cannot now remember, within a couple of weeks of the accident, he made an appointment for Roshen Kessopersadh to meet him at the station to make a statement. Mr. Kessopersadh did not turn up, but when subsequently contacted he said that he would be making his statement through his solicitor.
31. Garda Plunkett said that he made contact again, possibly a week later. Mr. Kessopersadh told him that he had made a statement to his solicitor. The Guard’s response was that he would have to bring his statement to the station so that he could be cautioned. The caution would then be added to the statement and Mr. Kessopersadh could sign it in Garda Plunkett’s presence. However, after this conversation, he received a phone call from the solicitor, Mr. O’Hanrahan, who said that his client would not be making a statement and that he, Garda Plunkett, was not to make further contact with him.
32. Mr O’Hanrahan’s evidence was that he told Garda Plunkett, in the course of three phone conversations calls that he was prepared to come to the station with his client so that Mr. Kessopersadh could indicate there, in his presence, that he would not be making a statement. His last record of a call to that effect was on the 21st May, 2004. He made a subsequent call, recorded in a note by the Guard who took it, in which he expressed annoyance at Garda Plunkett’s efforts to contact his client directly.
33. The second plaintiff, Mrs Kessopersadh, said that she rang the station in July and left a message for Garda Plunkett telling him the dates when Roshen would be abroad. He left for New Zealand on the 4th August.
34. Garda Plunkett denies having received such a message.
Internal Garda reports
35. An initial, preliminary report was prepared by Garda Plunkett three days after the accident.
36. On the 5th June, Inspector Flood reported to Superintendent Moore that the investigation file was not yet ready. He also reported that Roshen Kessopersadh had confirmed in the past week that on the advice of his solicitor he would not be making a statement. At that stage Sergeant Finn’s report had not been received.
37. It is apparent from the papers that Superintendent Moore sent Inspector Flood a minute on the 8th June. The document itself appears to have gone missing but a copy of the Inspector’s response was put into evidence. It reads in full as follows:-
“With reference to your minute of the 8th inst Mr Kessopersadh has not been arrested for dangerous driving causing death.
There were no witnesses to the accident: therefore, there is no evidence of the manner of Mr Kessopersadh driving prior to the accident. Without independent evidence that his driving was in some way dangerous, within the meaning of Section 53 Road Traffic Act, 1961 as amended there are, in my opinion, no grounds on which to base an arrest. This position may change when we receive Sergeant Calm Finn’s report on his investigations.
For the reasons outlined above Mr Kessopersadh has not been dealt with under Section 4 CJA 1984.”
38. The reference to “section 4 CJA” is a reference to the powers of detention under s. 4 of the Criminal Justice Act, 1984.
39. Garda Plunkett sent a further report on the 17th July, 2004 to his Sergeant, John Clifford. He attached thereto the findings of Sergeant Finn and Garda Bonar. In forwarding the report, Sergeant Clifford recorded his own view that there was sufficient evidence that Roshen Kessopersadh was driving the vehicle in question and the fact that he chose not to make a statement on the advice of his solicitor did not alter that fact. He went on: –
“One could ask the question if he was arrested for section 53 [dangerous driving causing death] would it affect the situation. I would answer that in the negative having regard for the likely outcome that a prosecution for section 53 would not succeed. An appropriate charge would be section 52 driving without due care and attention for the following reason. There are no witnesses who can indicate the manner of driving. The vehicle was examined and found to be roadworthy. It is presumed that the deceased pedestrian had consumed alcohol on the night. This can be confirmed by the Toxicologist’s report. The driver was driving between 25 and 31 mph according to Sergeant Calm Finn’s expert analysis.
To apportion culpability, I suggest that excessive speed was not a factor in this instance but rather a lack of observation and care. There is no doubt that the driver of the car has a case to answer.”
40. The report then went to Inspector Flood, who forwarded it to Superintendent Moore with a memorandum setting out his own assessment. He opines that the only significant evidence is the expert investigation and report by Sergeant Finn. He notes that Mr Kessopersadh was driving close to the centre line of the road and says in that regard:
“This would be close to the optimum driving position in the lane, as the more immediate hazard is to the drivers near side, and gives him or her more time to react to a hazard emerging onto the road from the near side. Gardaí on Driving Courses are taught to “Centralise your Hazards’: i.e. to drive close to the centre line of the road and when the road ahead is clear of traffic to drive with the broken white line running through the centre of the steering wheel.”
41. Inspector Flood gives it as his opinion that, without diminishing Mr. Kessopersadh’s responsibility, Mr. O’Neill should have seen the approaching car on the opposite side of the road from the side from which he was crossing. He notes the dark clothing worn by Mr. O’Neill, which would have reduced his visibility, especially with the shadow on the road. He concludes however that the driver should have seen him and been able to avoid the collision.
42. Under the heading “Recommendations” the Inspector says:
“Having examined the available evidence I find no evidence to indicate that Mr. Kessopersadh was driving in a dangerous or reckless manner. Therefore, I am not of the opinion that Mr. Kessopersadh’s driving, on the occasion, amounts to Dangerous Driving.
I do believe; in view of the fact that he did not see Mr O’Neill, until his car struck him, that his driving falls within the definition of Section 52 Road Traffic Act 1961 (Driving without due Care and Attention). Accordingly I recommend Mr. Roshen Kessopersadh be prosecuted for the offence of Driving without due Care and Attention contrary to Section 52 Road Traffic Act 1961 as amended.”
43. Superintendent Moore responded on the 20th July raising a number of queries, many of which are not material for present purposes. What is relevant is the view expressed in his concluding remarks:
“We, An Garda Sfochcina are obliged to carry out a full investigation into how Mr. O’Neill met his death. He was struck by a car which resulted in him receiving fatal injuries.
Mr. Kessopersadh has chosen to remain silent and not to make any statement. Yet, there doesn’t seem to have been any attempt made by Garda Plunkett to interview Mr. Kessopersadh.
I fail to understand as to why the provisions of the Criminal justice Act 1984 have not been implemented in the investigation of this man’s death. There is an onus on us, the Garda Síochana to establish all facts surrounding this man’s death. We cannot assume that the deceased contributed to his harm by his own negligence. It is highly unlikely that the deceased ‘Just stepped out- in the middle of the road”.
I would appreciate if this matter was finalised without further delay.”
44. Inspector Flood replied to this communication in a letter which bears the date of the 29th June, 2004 but which was obviously written after receipt of the Superintendent’s minute. In it he deals with the queries raised. Responding to the comments quoted above he reviews the communications between Garda Plunkett, Roshen Kessopersadh and his solicitor Mr. O’Hanrahan and says:
“Following his conversation with Mr O’Hanrahan Garda Plunkett discussed the situation with me. I reviewed the available evidence and gave him my opinion, that there being no independent evidence of Mr Kessopersadh’s driving and more so no evidence anything of a dangerous nature about his driving, that there was insufficient evidence on which to ground an arrest under section 53 Road Traffic Act 1961.
I reviewed the evidence again when Sergeant Finn’s report was to hand and while it confirmed that Mr Kessopersadh should have seen Mr O’Neill on the road before the collision I was of the opinion that it did not contain any evidence to indicate dangerous driving on the part of Mr Kessopersadh. In fact it showed, by scientific calculation that Mr Kessopersadh was driving at between 25mph and 31mph and as I pointed out in my report of the 16th inst, for all intents and purposes within the Built Up Area Speed Limit The weather conditions were dry, after earlier rain, with the road not excessively wet and I am of the opinion that a speed of 25mph to 31m ph was not excessive for the prevailing conditions. Mr Kessopersadh’s arrest, for the offence of Dangerous Driving, was necessary to invoke the provisions of the Criminal justice Act 1984: in my opinion as stated here and in my report of the 16th ult, under Recommendations, I was not and am not of the opinion that Mr Kessopersadh was driving dangerously on the occasion. And, as I recommended, I am of the opinion that he was Driving without due Care and Attention (Section 52 Road Traffic Act 1961, as amended) based on the fact that he failed to see Mr O’Neill prior to the collision.”
45. In evidence, Inspector Flood (now retired) confirmed his views as expressed in the reports. He had no further dealings with the file until he received directions on the 8th September, 2004 from the Director of Public Prosecutions to charge Mr. Kessopersadh with careless driving. He applied for the summons on the same day. As noted above, Mr. Kessopersadh was ultimately acquitted on that charge.
The review by Inspector Gannon and Sergeant Keating
46. At some stage in late July or early August, 2004 the file was passed by Superintendent Moore to Inspector Joseph Gannon. In evidence, Superintendent Moore (now retired) said that he wanted Inspector Gannon, who was in charge of the Traffic Unit in the Dublin Metropolitan Region South, to review the file with Sergeant Keating in relation to all aspects of the file. He said that the Gardaí were dealing with a motorist who, on the information available to him, was not cooperating with the Gardaí. He did not agree with Inspector Flood’s view of the situation. In particular, Superintendent Moore stressed that the Gardaí were obliged to carry out a full investigation and they did not have the driver’s account. He therefore gave the file to Inspector Gannon to see what else could be done. He denied having given any order for arrest.
47. Inspector Gannon, (who is now a Superintendent and whom I will therefore refer to as such) did not write any report in relation to the matter. His evidence was that he acquired a copy of the investigation file including all the minutes referred to above. He discussed it with Sergeant Gearoid Keating (the first named defendant), one of his traffic sergeants. He was aware of the concern of Superintendent Moore that there was no account from the “principal” involved in the accident, Roshen Kessopersadh.
48. Superintendent Gannon said that he had grave concerns about the manner and quality of the investigation up to that point. When asked by Counsel for the defendants did he form any opinion or suspicion in relation to the commission of a crime upon reading the file, he replied “Not entirely on reading the file” but that he decided on a course of action having read it. That course of action was to visit the scene at a similar time of night. He did so on the 9th August, 2004 with Sergeant Keating.
49. After visiting the scene, he said, he formed a view that the occurrence of the accident remained unexplained, particularly having regard to the width of the road, the relatively straight alignment and the street lighting. He felt that Sergeant Finn’s finding that the driver would have been 60 to 70 metres away when the pedestrian commenced crossing the road was significant. In essence, he thought that the reason the driver did not see the pedestrian was that the driver had engaged in some act which caused him not to keep a proper lookout.
50. Superintendent Gannon went on to say, not in relation to any question asked of him, that he had a concern when he read the file about “the influence that it seemed to me that the driver of the car was having on the direction of the investigation up to that point”. He explained that by this he meant that the driver had initially seemed willing to give an account and then changed course and failed to keep appointments.
51. The witness then said that after the visit, he formed a view that there were reasonable grounds to suspect that the driver of the car had engaged in an act of dangerous driving causing the death of Laurence O’Neill. Sergeant Keating agreed with him. He discussed the matter with Sergeant Keating, who decided to arrest Roshen Kessopersadh two days later, on the 11th August.
52. The Superintendent said that he had possible explanations for the accident at the back of his mind but these could not be explored unless the principal gave an account. In the absence of any account, he said that
“there was only one option and that was to utilise a legal provision available for that purpose to compel a person or a principal involved to give an account of what occurred when they’re involved in an incident.”
53. It became apparent that what he meant by this was the utilisation of legislative provisions regarding the drawing of inferences from failure to answer questions when a person is arrested and questioned. There was in fact no such provision available in 2004 in relation to offences of this nature.
54. Superintendent Gannon said that he did not write any report in relation to the matter because the proper time to do so would have been after the arrest. In the event, he was notified at some stage on the 11th August by Sergeant Keating that Roshen Kessopersadh had not been at home and was in fact in New Zealand. In those circumstances, he said, there was nothing he could do to “enhance the prospects of the investigation” or to “improve its quality”.
55. In cross-examination the Superintendent was pressed on the issue as to whether there was any evidence, other than the fact of failure to see Mr. O’Neill, indicating that Roshen Kessopersadh had engaged in dangerous driving. He repeated that it was a wide, relatively straight road with good lighting and said he wanted the driver to explain what had happened. Superintendent Gannon repeated that if Mr. Kessopersadh had failed to give an account voluntarily there was legal provision to compel him. He went on to assert that he felt that Mr. Kessopersadh
“was having an undue influence on the thrust of the investigation by what appeared to be initially going to volunteer an account of what occurred and then changing his mind. I’m well aware that it’s his legal right to remain silent, but then that’s why there exists a legal provision.”
56. The superintendent finally realised, whilst giving evidence, that he was wrong in relation to the availability of the legal provisions he had in mind. He then said that an arrest would have enabled the Gardaí to ask Mr. Kessopersadh whether there was anything that distracted him. They would have been able to take his phone and analyse it, to see if he had been using it.
57. The witness did not accept that what he was saying amounted to an assertion that the Gardaí were entitled to arrest on the basis that Mr. Kessopersadh was not cooperating. Asked why he had not submitted a report, given that he disagreed with Inspector Flood’s conclusions, he said that he would not feel competent to go into the law in such depth. Given that the arrest had not taken place, he felt he had “nothing to contribute” to the file. He said that he felt he had “failed in his mission”. He left the file back to the administrative office of Superintendent Moore, with no covering letter or note.
58. Ultimately, the file ended up with Inspector John Jennings, who at the time was Acting Superintendent in the absence of Superintendent Moore. He forwarded it to the DPP with a recommendation for a prosecution for dangerous driving causing death. Although, obviously, Inspector Jennings’ report post-dates the events giving rise to this action, it is worth noting its content. In it he referred to Sergeant Finn’s calculations as to the relative speeds of the car and the pedestrian. He noted the fact that s. 53(3) of the Road Traffic Act provides that, on a charge under the section, it is not a defence to show that the accused was not driving in excess of the speed limit. His own view was that
“Templeogue Road is a long straight and wide stretch of roadway and it beggars belief that Roshen Kessopersadhfailed to see the deceased on approach which leads me to the conclusion that either he was not watching the roadway in front of him or was otherwise distracted, culminating in this tragic accident.”
The evidence of Sergeant Keating as to his state of mind
59. At the time of these events, Sergeant Keating was in charge of the Divisional Traffic Unit for the South City. He recalled reading the file and subsequently going to the location of the accident with Inspector Gannon. They considered the width of the road and the lighting. Sergeant Keating said that he formed an opinion with reasonable cause that Roshen Kessopersadh was guilty of the offence of dangerous driving causing death.
60. When asked what he considered to be significant in the report of Sergeant Finn, Sergeant Keating said that the first thing that struck him was the distance that the car was from the point of impact when the pedestrian started crossing the road. It was a very long wide road, well lit up, it had not been raining at the time and it seemed to the Sergeant that there was ample time for the driver to see the pedestrian and to avoid hitting him. From that fact; from the statement of Roshen Kessopersadh that the pedestrian had “just stepped out in front of him” and from the fact that the taxi driver, Mr. McCabe, had not heard the sound of brakes, he drew the inference that the driver did not see the pedestrian pre impact.
61. Sergeant Keating summarised the view of Inspector Flood as being based primarily on the fact that the driver was within the speed limit and the pedestrian was wearing dark clothing and had drink taken. His own view was that this was too narrow an approach and that taking everything into account he was of the opinion that Roshen Kessopersadh was guilty of dangerous driving causing death. As a result he felt that Mr. Kessopersadh should be asked certain questions for the proper investigation of the offence. The questions he had in mind were: -“Was he making a phone call or sending a text? Was the windscreen properly de-misted? Was he manipulating the radio?”
62. In cross-examination Sergeant Keating clarified his evidence as to his state of mind and said that he had reasonable cause to suspect the commission of dangerous driving causing death, rather than being of the view that it had been committed. He said that he was not influenced by the views of any of the officers who had considered the file and did not feel that he was expected to make an arrest.
63. The main issue pursued in cross-examination was whether Sergeant Keating could point to any feature of the evidence indicating culpable driving other than the failure of the driver to see the pedestrian. He consistently responded that the failure to see the pedestrian was part of the circumstances and that this gave him reasonable grounds for suspicion. He said that he did not have sufficient evidence to sustain a prosecution for dangerous driving and pointed out that if he had, he would not have been entitled to take the course of action he did.
64. Asked if could not have arranged to arrest Mr. Kessopersadh by appointment, he said that he was aware from the file that there had been two failures to attend for appointments.
65. Sergeant Keating did not make any written report before or after the 11th August and made no note of the events of that day.
The search of the house
66. There was a considerable amount of disagreement, and not a little confusion, as to the precise detail of what occurred on the morning of the 11th August, 2004. However, I am satisfied that, for the most part, very little turns on the areas of disagreement. I do not consider it necessary, in the circumstances, to set out the evidence in any great detail.
67. It is common case that the Gardaí arrived early in the morning, whether it was shortly after 6 o’clock, as the Gardaí say, or 6.30, as the plaintiffs insist. The first plaintiff says that he communicated with the Gardai for several minutes through the glass door of his porch, asking them did they have a warrant. He says that they kept “roaring” that they wanted Roshen, to take him to the station. When he eventually opened the door, they came against his wish. They told him that they did not need a warrant. According to both of the plaintiffs, they told the Gardaí that Roshen was not there, that he was visiting his sister in New Zealand, but the Gardaí would not accept that they were telling the truth. They say that one Garda went upstairs and, accompanied by the second plaintiff, looked in every bedroom in the house. Eventually the Gardaí left, saying that Roshen should contact the station when he came home.
68. The plaintiffs were upset by the fact that the three Gardaí arrived at such an early hour dressed in dark clothing, rather than uniform, and in an unmarked car. The first plaintiff remarked on the fact that they were all rather bigger than him and he found their manner intimidating. In particular, they were and are upset that the Gardaí would not take their word for it that their son was not there.
69. Sergeant Keating said that he had decided the day before that, having regard to the area and the sort of people involved, it would not be necessary or appropriate to use a conspicuously marked Garda vehicle, or to wear full uniform with stab-proof vest. The hour was chosen as being one when people were likely to be at home but they would not draw the attention of neighbours. He and the other two Gardaí dressed in what he called “half uniform” – that is, he wore navy blue trousers and a fleece, while the other two wore their motorbike leather trousers and Garda sweatshirts.
70. The defendants denied shouting outside the house, or that Mr. Kessopersadh communicated through the glass for several minutes.
71. The three Gardaí accepted that it was clear to them that they were in the house without the consent of the occupiers. They did explain that they did not need a warrant. There was no shouting or roaring, outside or inside the house. Sergeant Keating said that he could not leave just because he was told that Rosh en was not there, but had to verify this for himself. He said that he went upstairs accompanied by one other Garda and looked into two rooms. In one of them he was shown bank documentation belonging to Roshen. The room was not in current use. He thereupon decided not to search further.
72. Mrs. Kessopersadh suffers from epilepsy and she and her husband have given evidence that her condition worsened in the aftermath of the incident. I have not, however, been given any medical evidence in this regard.
73. As far as the conflict of evidence is concerned, I think it is probably the case that there was a degree of communication through the door and that voices may at that stage have been raised to some extent but I do not accept that there was several minutes of “roaring”. On the other hand, I see no reason to disbelieve Mrs. Kessopersadh when she says that all of the bedrooms were looked into, since the whole logic of the presence of the Gardaí in the house was that they had to check for themselves.
Power to arrest without warrant
74. It is expressly admitted by the defendants that they entered the house without the consent of the plaintiffs. They were, therefore, trespassing unless they can establish that their actions were authorised by law.
75. The authority relied upon is the power to arrest a person suspected of an arrestable offence and for that purpose to enter without warrant the premises where he is suspected to be and where he is ordinarily resident.
76. Section 4(3) of the Criminal Law Act, 1997 provides as follows:-
Where a member of the Garda Síochana, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.
77. Dangerous driving causing death is and was at the time an arrestable offence, carrying as it does a maximum penalty of 10 years.
78. Section 6(2) of the same Act provides that
“For the purpose of arresting a person without warrant for an arrestable offence a member of the Garda Síochana may enter (if need be, by the use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of the occupier or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless
a) Omitted
b) Omitted
c) Omitted
d) The person ordinarily resides at that dwelling.”
79. It is also relevant to note that the provisions of s. 4 of the Criminal Justice Act, 1984, which would have been invoked by Sergeant Keating had he made the arrest. In order to detain an arrested person, the member in charge of the Garda station to which he is brought must be satisfied that there are reasonable grounds for believing that his detention “is necessary for the proper investigation of the offence”.
80. On the facts of this case the questions that arise are as follows: –
1) Did Sergeant Keating suspect that the offence of dangerous driving causing death had been committed? (In this case, such a suspicion could only have related to Roshen Kessopersadh.)
2) If so, did he have reasonable cause for that suspicion?
81. The three matters to be considered under this heading are, therefore, the elements of the offence of dangerous driving, the meaning of “suspicion” and the basis on which “reasonable cause” may be established.
Dangerous driving
82. Dangerous driving is defined by s. 53 of the Road Traffic Act, 1961as amended as driving in a public place in a manner:
“(including speed) which, having regard to all the circumstances of the case (including the condition of the vehicle, the nature, condition and use of the place and the amount of traffic which then actually is or might reasonably be expected to be in it) is or is likely to be dangerous to the public.”
83. The classic instruction given to juries in cases of dangerous driving causing death, as endorsed by the Court of Criminal Appeal, is that given by His Honour Judge Ó Briain in People v Quinlan (1962) ILT & SJ 123, where the judge described it as
“Driving in a manner which a reasonably prudent person, having regard to all the circumstances, would recognise involved a direct, immediate and serious risk to the public.”
84. Careless driving, which at the time of the accident in the instant case was a summary-only offence, was provided for ins. 52 as follows:-
“A person shall not drive a vehicle in a public place without due care and attention.”
85. It is obvious that in this area of law comparing one case to another is not necessarily helpful, since each case must turn on its own facts and the certainly possible to say that, within each of the offences – careless and dangerous driving – there are degrees of carelessness and dangerousness.
86. In DPP v O’Dwyer (Court of Criminal Appeal, 28th July, 2005), the court was dealing with an appeal against sentence in a careless driving case, where the accused had been acquitted of dangerous driving causing death. (Again, it must be remembered that this pre-dates the introduction of the offence of careless driving causing death.) The focus of the judgment is on the question whether the sentencing judge should have taken account of the death in imposing sentence, but part of the analysis is relevant to the circumstances of this case.
87. At paragraph 9 of the judgment, it is said that
“It is important to draw attention to the difference between the offence of dangerous driving causing death and the offence of careless driving simpliciter. The constituents of the offences are very different, as are the penalties.
88. At Paragraph 16: –
“The concept of careless driving covers a wide spectrum of culpability ranging from the less serious to the more serious. It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver, and cases of repeat offending. However, since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court always has to define the degree of carelessness and therefore culpability of the driving.”
89. Finally, at paragraph 20, the Court said:-
“…As stated previously, there is a world of difference between a mere momentary inattention in the driving of a mechanically propelled vehicle, which unexpectedly and tragically causes a loss of a life, and grossly careless driving, which, though still short of dangerous driving, hardly surprisingly results in a fatal collision.”
Suspicion and reasonable cause to suspect
90. The question whether a particular suspicion existed in the mind of the arresting officer is a question of fact, to be determined in the light of his sworn evidence and the surrounding circumstances- see The People(DPP) v Quilligan [1986] I.R. 495. The existence of reasonable cause is a mixed question of fact and law.
91. In his work Criminal Procedure Walsh defines suspicion by reference to the judgment of Lord Devlin in Hussein v Chong Fook Kam [1970) AC 942, where it is said
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”
92. However, it is clear that the permitted scope of conjecture or surmise is limited to what is reasonable in the circumstances. In Walshe v Fennessy [2005) 3 I.R. 516, the Supreme Court considered the suspicion grounding arrests under s. 30 of the Offences Against the State Act, 1939. Kearns J. noted that the suspicion grounding the arrest, to be “not unreasonable” must
“find some objective justification from the surrounding circumstances and the information available to the arresting officer.”
93. In the case of DPP v O’Driscoll (Supreme Court, 1st July, 2010) the Court endorsed the following principles: –
a. The reasonable cause to suspect must be fair and reasonable and honestly held on the basis of the information available to a member of An Garda Síochana at the relevant time.
b. The reasonable cause to suspect must be referable to facts or information which would satisfy an objective observer: it is an objective test.
c. The objective test requires that the basis for the reasonable cause to suspect be examined by reference to the time and the circumstances in which the power was exercised.
d. The facts or information grounding the reasonable cause to suspect may be either what the member of the Garda Síochana has observed or information that he has received. The information acted on by the member need not be based on his own observations since he is entitled to have a reasonable cause to suspect based on what he is told.
e. The reasonable cause to suspect may be based on information from any source including an anonymous source. Since it is only the information that is in the mind of the member of An Garda Síochana that is relevant it is unnecessary to investigate what was known to an informant or whether the information is true. If the information grounding the reasonable cause to suspect turns out to be ill-founded the lawfulness of the entry will not be impugned. What is relevant is the information available to the member of the Garda Síochana at the relevant time.
f Material grounding a reasonable cause to suspect need not satisfy the same threshold as is required to lay a charge nor is it necessary that it constituted admissible evidence.
94. Finally, it must be stressed that the requirement to establish the existence of a reasonable suspicion is a pre-condition to an arrest. The exercise of powers of arrest cannot be justified “solely by the desire to interrogate” – Quilligan.
Conclusions on the arrest
95. Applying these principles to the instant case, it seems to me that the avowed state of mind of Sergeant Keating fell far short of an objectively justifiable suspicion. I accept his evidence that he formed his own view, based on the file and on his visit to the scene, that something was missing from the explanation as to how the accident happened. However, having regard to the analysis of the distinction between careless and dangerous driving set out in O’Dwyer, it is clear that none of the potential explanations that he considered could have brought the case beyond the category of carelessness and up to the level of dangerousness.
96. The car was in good order and was driven within the speed limit. It was on its correct side of the road at the time of the collision. There was no alcohol involved and no loss of control of the vehicle. One might reasonably have suspected that the driver was guilty of a momentary inattention, perhaps even gross carelessness, if he had switched his attention to his phone or the radio, but on the facts of the case it could only have been for an extremely short period of time. There is absolutely nothing to support a theory that the windscreen was fogged and that he drove without being able to see through it.
97. It is quite clear that all of the Gardai involved in the investigation, to a greater or lesser extent, felt some frustration that Roshen Kessopersadh exercised his right not to make a voluntary statement.
98. I find it of some significance that neither Sergeant Keating nor Inspector Gannon (as he was at the time) wrote a report after the 11th August, to give the benefit of their views to whoever would have to make the final recommendation on the file. They were aware that Roshen Kessopersadh would be returning from his trip abroad within the next few weeks, but there was no proposal that a further effort should be made to arrest him at that point.
99. In all the circumstances, I have come to the conclusion that there was no reasonable cause for a suspicion that Roshen Kessopersadh was guilty of the offence of dangerous driving causing death. I also consider that the intended arrest was for the purpose of finding out what he might say, rather than being based on a genuinely held suspicion. That is not a proper ground for arrest.
Damages
100. The plaintiffs in this case seek damages including aggravated or exemplary damages.
101. Reliance is placed on the decisions of the Supreme Court in Conway v Irish National Teachers Organisation [1991] 2 I.R. 305 and Shortt v Commissioner of An Garda Síochana [2007] 4 IR 587.
102. Conway concerned the appropriate measure of damages for a school student who had been deprived of her constitutional right to free primary education by the actions of the defendants. The defendant union had instituted a withdrawal of labour from all schools in a particular parish, because of a dispute with the parish priest and others involved in the running of schools in the parish. After some months it issued a directive to its members in all schools in surrounding areas to refuse to accept for enrolment any children from that parish. The plaintiff was, as a result, wholly without school education for almost a year. The trial judge found that the teachers in the surrounding areas acted with the purpose of depriving the children of primary education in order to put pressure on the parish priest and that this amounted to the use of unlawful means to deprive the children of their constitutional right. In the appeal on the issue of liability, O’Higgins CJ said that there was no justification for seeking to harm, not those with whom the union was in dispute, but “innocent children who had nothing to do with it.”
103. In the appeal on damages, Finlay CJ laid down the following principles in respect of damages in tort or for a breach of a constitutional right: –
“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 andjor for monies lost or to be lost andjor 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 andjor 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. I have purposely used the above phrase “punitive or exemplary damages” because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
104. In submissions on this aspect of the case, Counsel for the plaintiffs has referred to the case of Shortt v Commissioner of An Garda Síochana [2007] 4 IR 587. In that case, the plaintiff had been convicted of a serious drug-related offence and had served a significant period of imprisonment because of the maliciously untrue evidence of certain Gardaí. As summarised by the headnote, the Supreme Court held
“… there were especially grave features of this case which had particular relevance to the quantum of aggravated and exemplary damages, including the malice and dishonesty of the garda members involved including their concealment of evidence, the abuse of power, conduct calculated to undermine a fair trial, the cruel treatment of the plaintiff when imprisoned concerning compassionate leave, the physical and psychological effects of imprisonment which were exacerbated by the belief, which was correct, that his conviction and imprisonment had not been brought about by some dreadful error or mistake but by the mala fide machinations of the garda members involved. Furthermore, the consequences included degradation of his family circumstances, public degradation in the eyes of the community, at least some of which was engendered by deliberate exploitation of the case for the purposes of publicity and self advancement by a garda officer. The whole course of events changed permanently the course of the plaintiffs life and at an age where, and in circumstances where, even on release or ultimate vindication, it would never return to its normal course to any serious extent.
… general damages or ordinary compensation was designed to compensate the direct effects of the wrong on the person who suffered it. Aggravated damages represented an augmentation of the ordinary compensatory damages by reason of the manner in which the wrong was committed and the conduct of the wrongdoer at the time and subsequent to the commission of the wrong or wrongs involved.”
Conclusions
105. I do not consider that this is a case where exemplary or punitive damages are called for. The wrong done to the plaintiffs does not bear comparison with that suffered by, for example, the plaintiff in Shortt I have found that the state of mind of the would-be arresting officer did not satisfy the requirements of a lawful arrest but beyond that I do not see anything particular in the behaviour of the Gardai at the plaintiffs’ house worthy of condemnation. I accept that their approach, in an unmarked car and dressed in “half uniform”, was a reasonable one and I do not think that the plaintiffs would have been happier if they had turned up in a more noticeable fashion.
106. I realise that the plaintiffs found the whole experience very upsetting, especially because the Gardai would not accept their word. I think that their reaction is a natural one for any parent in such circumstances, but that is not the same as finding that the Gardai behaved in a particularly oppressive, arrogant or outrageous way. Nor has the defence of the action been run in such a way as to, for example, cast aspersions on the character of the plaintiff’s. There has been a failure to apologise, but I do not think that that on its own can entitle a plaintiff to aggravated damages.
107. What the plaintiffs are entitled to, therefore, is compensatory damages for the trespass and entry into their home, other than in accordance with law, and for distress and anxiety caused thereby. I assess those damages at €50,000.
Smith v Health Service Executive
[2013] IEHC 360
JUDGMENT of O’Neill J. delivered on the 26th day of July 2013
1. The plaintiff in this case sues the defendants, her employers, for damages for negligence and breach of duty including breach of statutory duty in respect of injuries she sustained on 27th July 2010, in the course of her employment with the defendants.
2. The plaintiff, who is a married woman and has two grown up children, has been employed by the defendants for 18 years as a Household Assistant in St. Joseph’s, Ferryhouse, Clonmel, County Tipperary. This is an institution which engages in the rehabilitation of boys between the ages of 12 and 18 years. The institution can accommodate approximately 23 boys in four houses or residential units.
3. During the summer break, when the boys are sent home or to another institution, a major cleaning operation is conducted by the household staff. This involves a very thorough cleansing and disinfecting, inter alia, of the residential units.
4. On the day of her accident, the plaintiff was engaged in this task. At about 10.00am, she was in the process of cleaning a shower or shower room in one of the residential units. This is not a shower in the ordinary domestic sense, but is a small room which is, in effect, a single shower. All of the walls and floors were tiled and the showerhead was set into the wall opposite the door into the shower room. Entrance to the shower was via a door which was off a corridor, and on the other side of the corridor opposite the door there was a solid wall.
5. The buildings that comprise this institution date back to about 1990 and the door in the shower room was undoubtedly of that vintage.
6. The hinges that supported the door were designed so that in the process of opening, the door was raised up slightly. The purpose of this design feature was to enable the door to self-close once opened. This was achieved by gravity pulling the door down from its slightly elevated position when open to the lower and stable position when closed. Many of the other doors in these residential units have similar hinges.
7. Over time, the self-closing operation of the door into the shower room became inhibited by the accretion of paint. I am satisfied that the door into this shower room had, by this process, lost the capacity to self-close and when open was stable in any opened position. When fully open, it did not go back so as to be flush with the wall from which it was hung because the width of the door brought it into collision with the side wall of the shower, but it could go back to an almost fully opened position.
8. The task the plaintiff had to do was to thoroughly cleanse the walls and floors of the shower room. To do this, she used a long-handled deck brush. The preferred detergent for this task was ‘Brillo Degreaser’ which came in 5-litre bottles. She had previously gone to the store to get this but none was available and so she was obliged to use the next best available agent which was a ‘Bleach’. Because this agent creates unpleasant fumes, it was necessary for her to keep the door of the shower room wide open to ensure adequate ventilation. Although there was a ventilating extractor in place which was operated by the electric light switch, the plaintiff’s evidence was, and I accept it, that this was inadequate to deal with the fumes from the Bleach.
9. The plaintiff also needed to keep the door open to its maximum extent to allow her sufficient uninterrupted room within the shower room to scrub the walls of the shower with the long-handled brush.
10. Keeping the door open gave rise to a controversy which dominated the heart of this case. In her evidence, the plaintiff described some difficulty in opening the door to its maximum extent. When examined by Mr. McCormack within 48 hours of the accident, no such difficulty was apparent and I am satisfied that whatever difficulty was perceived by the plaintiff when opening the door, was of no real significance.
11. I am also satisfied that the door did not function properly in terms of the design of the hinges, in that it did not self-close spontaneously.
12. However, I am also satisfied that the plaintiff, being accustomed to the self-closing feature on many of the doors in the residential unit, had reasonable grounds for believing that the door would self-close unless restrained by a doorstopper of one sort or another.
13. It is commoncase that the normal doorstoppers which were readily available would not work on this door because the gap between the bottom of the door and the floor of the shower room was abnormally deep.
14. Two methods of door stopping were, I am satisfied, used by staff of the defendants. The first of these was the placing of a 5-litre bottle of ‘Brillo Degreaser’ in front of the door, holding it open. This method was not available to the plaintiff because she had looked for ‘Brillo Degreaser’ and there was none available.
15. The second method and that adopted by the plaintiff was to place the handle of a mop or brush into the jamb of the door with the head of the brush or mop securely placed in the angle between the doorstep and the opposite side of the doorway. This kept the door open but it resulted in the mop or brush handle straddling diagonally the door opening thereby creating an obvious obstacle in the path of anyone attempting to cross the doorstep to get in or out of the shower room.
16. Having secured the door in the fully open position by using a long-handled mop in this way, the plaintiff proceeded to clean the walls of the shower. She spread the Bleach on the back wall of the shower where the showerhead was located. She used the shower itself as her supply of water and activated the shower by pressing the operating button with the handle of the deck brush she used to scrub the walls. When the shower was discharging water, the plaintiff would back away towards the door to avoid getting wet.
17. Her evidence was that whilst she was scrubbing the back wall with this long-handled mop, using an upward and downward motion, and as she backed away a little bit, her heel came in contact with the doorstep. It is probable that when this happened, the plaintiff was backing away to avoid water being discharged by the shower. It would seem to me that the internal dimensions of the shower were such, and having regard to the length of the brush handle (1,200mms.), her own physical size and the upward and downward scrubbing motion, that she was probably standing well inside the shower room and certainly not close enough to the doorstep to bring her heel into contact with it, except when she turned on the shower and backed away to avoid getting wet.
18. The evidence of both engineers established that the doorstep at the entrance to the shower was 2.5 inches in height above the level of the floor in the shower room. When the plaintiff’s heel came in contact with the doorstep, I am satisfied that this caused a backward trip. Immediately, the back of her leg came in contact with the handle of the mop, and because it was caught in the doorjamb it presented a solid obstacle which, I am satisfied, prevented the plaintiff regaining her balance after her initial backward trip and probably turned a backward stumble from which she could have righted herself into an uncontrolled freefall backwards out into the corridor.
19. Her fall was broken by colliding with the wall on the opposite side of the corridor. Her left shoulder impacted the wall before she fell to the ground. It is apparent that the plaintiff collided heavily with this wall and as a consequence suffered a serious injury to her spine, namely, a wedge fracture of one of the vertebrae of her thoracic spine. She was unable to rise from the floor. Help arrived and in due course she was removed by ambulance to South Tipperary General Hospital.
20. In these proceedings, the plaintiff sues the defendants, as her employers, for negligence and breach of their duty to her, including breach of statutory duty, namely, sections 8 and 19 of the Health and Safety at Work Act 2005 (the Act of 2005). The negligence and breach of duty so alleged comes down to three specific criticisms that the plaintiff makes of the defendants’ system of work under which she operated when she had her accident.
21. The first of these relates to the height of the step into the shower room. Mr. Fogarty, an engineer called for the plaintiff, said in evidence that this step was much higher than it needed to be, to achieve its purpose, namely, to prevent water flowing from the shower room into the corridor. He said a 1 inch step would have been sufficient and would have been much less hazardous to somebody doing the job the plaintiff was doing when she had her accident and, generally, people going in and out of the shower room.
22. I am unable to agree with this criticism. Even if the step was only 1 inch in height, as recommended by Mr. Fogarty, it would still have been a serious tripping hazard and in all probability would have caught the plaintiff’s heel in exactly the same way as occurred. In addition, the 2.5 inch step is significantly more visible than a 1 inch step would be in this location, and hence, in my view, a 1 inch step was likely to be a greater hazard to employees of the defendants than the 2.5 inch step that is there.
23. I am satisfied that this allegation of negligence and breach of statutory duty fails.
24. The next criticism raised was to the effect that a warning should have been given to the plaintiff by the defendants as to the hazard posed by this step to employees working in the shower room or in going in and out of the shower room.
25. In my view, such a warning was entirely unnecessary. The plaintiff had been working in these premises for the defendants for 14 years prior to this accident. She was very familiar with the physical layout of the premises and all its individual features. She was herself a mature married lady with her own house and family and was fully competent to discharge the entire range of domestic household functions which is what she was employed by the defendants to do, as a Household Assistant. Pointing out this step to her and her colleagues of similar experience and telling them that it posed a hazard and to be careful to avoid it, would, I am quite sure, have been an exercise in tokenism and very unlikely to have impressed anything on the recipients of the message other than a very understandable sense of irritation.
26. The fact is, the step was readily visible. On the day of her accident, the plaintiff crossed it several times and went to the trouble of placing the mop head on top of it in the course of placing the handle in the jamb of the door.
27. It would be completely unreal to suggest that her employers could have done anything more, realistically, to convey to the plaintiff the potential risks posed by this step and I am satisfied that it was wholly unnecessary for the defendants to have given or provided a warning of the potential hazards associated with this step which was readily visible to adult, competent employees including the plaintiff.
28. I am satisfied that this ground of negligence and breach of statutory duty fails also.
29. This brings me to the third, and as it turned out in the trial, the real battleground between the parties. This was the plaintiff’s contention that the defendants, over many years, condoned the practice of securing doors in the open position by placing the handle of a long mop or brush into the jamb of the door and securing the other end or head of the mop or brush into the angle between the doorstep and the other side of the doorway. The plaintiff contended that the practice was a dangerous one which led to the creation of an obstacle that was likely to be a tripping hazard to the unwary as happened in the plaintiff’s case.
30. The defendants agreed that this practice was a dangerous one but made the case that not only was it not condoned by the defendants, but that if it did take place this was entirely unknown to the defendants who would have prohibited it if they had known about it.
31. Evidence was given by several of the defendants’ employees. From this, I am quite satisfied that this practice was regularly and continuously used over a long period of time to prop open doors. Specifically, the unchallenged evidence which emerged from the defence witnesses was that the front doors to two of the residences were regularly kept open by the use of a broom handle. Also, the back door of the kitchen was regularly kept open in this way.
32. I am quite satisfied that this practice had been in use on a regular and frequent basis in the defendants’ premises and was seen by the staff, and in particular the plaintiff, as a recognised, effective and acceptable method of keeping a door open. It is absolutely clear that the defendants at no stage did anything to prohibit this practice, and I am satisfied on the balance of probability that the management grade in St. Joseph’s must have been aware of it, or at the very least, having regard to the longevity and prevalence of the practice, they ought to have been aware of it.
33. This conclusion gives rise to an issue of law. Is the adherence to this practice, which both parties acknowledged was a dangerous one, to be properly treated as a failure of duty on the part of the defendants, as employers, and/or mainly or wholly as contributory negligence on the part of the plaintiff.
34. Before embarking upon this issue, it is necessary to consider, in the first instance, whether or not the condoning by the defendants of this practice and their failure to have prohibited it when they said they knew or ought to have known of it was a breach of statutory duty on their part.
35. It was submitted for the plaintiff that the condoning by the defendants of the practice of propping open self-closing doors with the handle of a brush or mop was a breach of s. 8 of the Safety Health and Welfare at Work Act 2005. The relevant portion of this section is as follows:
““8.—(1) Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.
(2) Without prejudice to the generality of subsection (1), the employer’s duty extends, in particular, to the following:
(a) managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees; . . .”
36. In addition, the plaintiff submits that there was a breach of s. 19 of the Act, insofar as the defendants, in their risk assessment, failed to mention or deal with the practice of propping open doors with brush or mop handles. The relevant portion of this section reads as follows:
“19.—(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions . . .”
37. I am of opinion that the condoning by the defendants of this practice and their failure to have prohibited when they know or ought to have known of its prevalence cannot be regarded as anything other than a failure by the defendants as contemplated by s. 8(2)(a) of the Act of 2005, namely, a failure in the managing and conducting of the work activities so as to ensure, as far as was reasonably practical, the safety and health at work of the plaintiff. Thus, I have come to the conclusion that the defendants were in breach of this statutory duty to the plaintiff and there is a direct causative link between that failure and injuries suffered by the plaintiff.
38. It is commoncase that the defendants’ various risk assessments which, although they do deal with “slips, trips and falls” and a variety of potential hazards associated therewith, no mention at all is made of the practice of propping open doors with brush or mop handles, in that context. Mr. Hayes, an engineer called on behalf of the defendants, justified such omission on the basis that he would not expect that kind of detail to be included in a risk assessment. However, in a risk assessment dated 9th June 2010, relating to the Bawnard Residential Unit, quite considerable detail is set out relating to the risk of slips, trips and falls from wet floors in bathrooms, kitchens and stairways. I would be of opinion that having regard to the longevity and prevalence of this practice, it should have been addressed and the risks associated with it considered as part of the obligation of the defendants to carry out risk assessments. I am satisfied that the failure to have so done was a breach of the defendants’ statutory duty under s. 19(1) of the Act of 2005.
39. I should add that the condoning by the defendants of this practice and their failure to have prohibited it was also a breach of the defendants’ common law duty of care to the plaintiff as her employer and was negligent.
40. This brings me to the question of negligence or contributory negligence on the part of the plaintiff and breach of statutory duty on her part, namely, a breach of s. 13 of the Act of 2005, which reads as follows:
“13.—(1) An employee shall, while at work—
(a) comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health and welfare of any other person who may be affected by the employee’s acts or omissions at work. . . .”
41. For the defendants, it was submitted that as the plaintiff had herself devised and implemented the method of propping open the door by the use of a mop handle, insofar as this practice was a causative feature of her injuries, it was not the result of any inadvertence or heedlessness on the part of the plaintiff, but was her own deliberate and conscious act and therefore she was wholly responsible for the consequence of adopting this dangerous practice and, necessarily, it followed that she was 100% contributory negligent in respect of her own injury.
42. For the plaintiff, it was submitted that where a breach of statutory duty on the part of an employer was established, an entirely different standard with regard to contributory negligence by the employee was applicable, namely, that mere inadvertence or heedlessness would, in the face of a primary breach of statutory duty, not amount to contributory negligence.
43. In this regard, the plaintiff cited the following passage from McMahon & Binchy (3rd Ed.) at p. 606 under the heading of ‘Contributory Negligence’:
“(21.52) The courts have consistently held that the term ‘contributory negligence’ has ‘a different meaning’ in an action for breach of statutory duty and in an action for common law negligence. In Stewart v. Killeen Paper Mills Ltd, 112, Maguire C.J. stated that there is:
‘An essential difference in the nature and quality of the acts of the plaintiff which would amount to contributory negligence in the one case and in the other. The distinction is very fine. It is nevertheless well established’.
(21.53) The care required of a plaintiff in an action for breach of statutory duty is less extensive than in actions for common law negligence. The court must take into account ‘all the circumstances the work in a factory . . . it is not for every risky thing which a workman in a factory may do in his familiarity with the machine that a plaintiff ought to be held guilty of contributory negligence’113
(21.54) It has been stated that:
‘The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which, though trivial in itself, threw him into the danger consequent on the breach by his employer of the statutory duty. It is the breach of statute, not the act of inadvertence or carelessness, which is then the dominant or effective cause of the injury’. 114
(21.55) The essential difference between breach of statutory duty and common law negligence seems to be that, in respect of breach of statutory duty:
‘(a) An error of judgment, heedlessness or an inadvertence on the part of a workman does not amount to contributory negligence’. 115
Whereas in respect of common law negligence:
‘(a) An act of inadvertence, even though momentary, if it is an act which a reasonably careful workman would not do, will in a common law action amount to contributory negligence’ 116
(21.56) In Stewart v. Killeen Paper Mills Ltd.117 Kingsmill Moore J. stated:
‘Where the injury could not have occurred but for a breach of statutory duty on the part of the master, a jury, in considering whether the conduct of the workman in all the circumstances amount to contributory negligence, are entitled to take into account that the action was taken by the workman in furtherance of the interests of his master and that zeal may have dulled the edge of caution; that the action was one undertaken to meet a situation where if anything effective was to be done it had to be done rapidly and without deliberation; and that, if the act was one which was customarily performed, the master ought to have been aware of the practice and its danger and ought to have taken steps to forbid it. Where it can be shown that a regular practice exists unchecked it is difficult to convict of contributory negligence a workman who follows such a practice’.
(21.57) In drawing a distinction between common law negligence and breach of statutory duty so far as the contributory negligence of an employee is concerned, the courts have been engaged in the formulation of robust policy making for which there is no express warrant in the Civil Liability Act 1961. Echoing the approach of the American courts, 118 our judges have taken the view that social policy requires that legislation prescribing safety standards in industry should not too easily be diluted by the doctrine of contributory negligence. . .”
44. As is apparent from the foregoing summary of the authorities, where a breach of statutory duty is established as a primary cause of a plaintiff’s injury, mere inadvertence or inattention on the part of the employee as distinct from positive conscious deliberate action will not amount to contributory negligence.
45. It thus becomes necessary to closely analyse what the plaintiff did immediately prior to her accident to ascertain whether, as is submitted by the defendants, the causative actions were conscious and deliberate on the part of the plaintiff or whether any culpable activity on her part should be fairly regarded merely as inadvertence or inattention.
46. It would seem to me that the activity of the plaintiff can be divided into two parts. The first was the undoubted deliberate and conscious adoption by her of the practice of propping the door open with the mop handle. Having done that, she then proceeded with the cleansing of the back wall of the shower. During that operation, probably in order to avoid water being discharged by the shower, the plaintiff backed away and inadvertently brought her heel into contact with the doorstep and the back of her leg into contact with the mop handle.
47. Thus, the immediate and proximate cause of the plaintiff’s fall was that of coming into contact initially with the doorstep and then, the mop handle which, in my view, could only be characterised as the result of inadvertence or a lapse of attention on her part.
48. Insofar as the plaintiff adopted the practice of placing the mop handle in the jamb of the door, she was merely following what was the well established practice condoned over a lengthy period of time for propping open self-closing doors in this way. Therefore, in my view, this part of the conduct or activity of the plaintiff is properly to be characterised as the defendants’ breach of statutory duty rather than as contributory negligence on the part of the plaintiff. On the other hand, the action of the plaintiff in backing away and catching her heel and leg in the step and mop handle is properly to be characterised as inadvertence, inattention or carelessness on the part of the plaintiff which, following the aforementioned authorities, should not amount to contributory negligence as it was merely inattention or inadvertence whilst adhering to a practice or system of work that was established or condoned by the employer.
49. I use the word “should” above advisedly for the simple reason that in all of the consideration given in the aforementioned older cases, there is no mention of and no consideration of the effect of s. 13 of the Act of 2005. It would seem to me that this section, imposing, as it does, a specific statutory duty on the part of employees, requires a reconsideration of the treatment by the courts of contributory negligence on the part of an employee in the context of an established breach of statutory duty on the part of the employer.
50. The legislative history behind s. 13 of the Act of 2005 goes back to s. 125(1) of the Factories Act 1955, which is in the following terms:
“125(1) – A person employed in a factory or in any other place to which any provisions of this Act apply shall not wilfully interfere with or misuse any means, appliance, convenience or other thing provided in pursuance of this Act for securing the health, safety or welfare of the persons employed in the factory or place, and where any means or appliance for securing health or safety is provided for the use of any such person under this Act, he shall use the means or appliance.
(2) A person employed in a factory or in any other place to which any provisions of this Act apply shall not wilfully and without reasonable cause do anything likely to endanger himself or others.”
As is apparent from this, the statutory duty imposed upon employees for their own safety or that of their fellow employees was extremely restrictive.
51. A significant change in the general duty of employees was brought about by s. 8 of the Safety in Industry Act 1980, which replaced sub-section (1) of s. 125 of the Factories Act 1955, and is in the following terms:
“8.— Section 125 of the Principal Act is hereby amended by the substitution of the following subsection for subsection (1):
‘(1) The following provisions shall apply to a person who is employed in a factory or in any other place to which any of the provisions of the Safety in Industry Acts, 1955 and 1980, apply, namely,
(a) he shall take reasonable care for his own safety and health and that of any other persons who may be affected by his acts or omissions while at work . . .’”
52. Sub-section (1)(a) above clearly expand the statutory general duty of care owed by employees to more or less correspond with the well-established common law duty of care owed by employees for their own safety.
53. Section 9(1) of the Safety, Health and Welfare at Work Act 1989, extended the statutory general duty of care to all “places of work” as defined in s. 2 of that Act, and is in the following terms:
“9.—(1) It shall be the duty of every employee while at work—
(a) to take reasonable care for his own safety, health and welfare and that of any other person who may be affected by his acts or omissions while at work . .”
54. The duty, as expressed here, is in almost exactly the same terms as in s. 8 of the Safety in Industry Act 1980, save that “welfare” is also included in addition to safety and health.
55. Finally, the latest statutory expression of this duty is contained in s. 13(1)(a) of the Safety, Health and Welfare at Work Act 2005, as quoted above. Insofar as the general statutory duty of employees is concerned, there does not appear to me to be any material difference between the duty as expressed in s. 13(1)(a) of the Act of 2005, and as expressed in s. 9(1)(a) of the Safety, Health and Welfare at Work Act 1989.
56. The cases relied upon by the plaintiff in support of the submission that mere carelessness, inattention or inadvertence would not amount to contributory negligence were decided before the enactment by the Oireachtas of a general duty of care on the part of employees as set out above, and hence, these cases do not consider that current general statutory duty of care on the part of employees.
57. Thus, it is necessary that there would be a reconsideration of the treatment of contributory negligence on the part of an employee in the light of the statutory duty now imposed on employees.
58. The above authorities reveal that the benign treatment of contributory negligence on the part of an employee in the face of a primary breach of statutory duty by the employer was to ensure that the policy underpinning the statutory provision would not be diluted by a reliance upon the doctrine of contributory negligence. If, however, the duty of an employee to take reasonable care for their own safety is elevated to the status of a statutory duty, it would seem to me that the exculpation of inadvertence and inattention from the ambit of contributory negligence must be reconsidered given that both employer and employee are now bound by statutory duties to take reasonable care.
59. This approach appears to have been adopted by the Supreme Court in the case of Coffey v. Kavanagh [2012] IESC 19, in which the judgment of Quirke J. in the High Court was overturned to the extent that a finding of contributory negligence to the extent of 25% was made by the Supreme Court where the primary duty of care on the part of the employer was found but where the employee had tripped and fallen as a result of the untidiness of her work environment, where she had some responsibility herself to keep the area where she fell, tidy.
60. In Quinn v. Bradbury & Bradbury [2012] IEHC 106, Charleton J., in reducing the plaintiff’s damages by 30% , referred to s. 13(1)(a) of the Act of 2005, commenting that:
“The sub-section of itself maintained the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer”.
Further on, the learned judge said the following at para. 21:
“21. Having found that the responsibility for this accident rested with the employers of Robin Quinn, the court is concerned with the issue of contributory negligence. Under s. 13(1)(a) of the Act of 2005 there is a duty on an employee while at work to protect his safety, health and welfare. Other requirements are also made which are not relevant here. That subsection, of itself, maintains the responsibility of an employee at common law to take reasonable care. In principle, an employee is not required or entitled to completely surrender control over his or her welfare while at work to an employer. . .”
61. In short, therefore, it must be said that in light of the statutory duty as imposed on employees, inattention, inadvertence, heedlessness or carelessness on the part of an employee can no longer be regarded as outside the ambit of contributory negligence, in circumstances where it is established that there was a primary breach of statutory duty on the part of the employer, assuming causative links between the breach of statutory duty by the employer, in the first instance, and contributory negligence of the employee, to the injuries actually suffered.
62. It is fair to say that the duty imposed on employers under s. 8(1) of the Act is undoubtedly of a more onerous order being expressed as being “shall ensure so far as is reasonable practicable the safety, health and welfare at work of his or her employees”, whereas the statutory duty imposed on employees under s. 13(1) of the Act is to “comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety and health and welfare . . .”
63. I would be of opinion, firstly, that a liability must attach to the plaintiff in respect of what may fairly be regarded as her negligence in bringing about this accident by backing into and falling over an obstacle which she had placed in her own pathway only moments earlier. Secondly, reflecting the higher or heavier duty resting upon the employer under s. 8(1) with regard to managing the system of work, a significantly greater proportion of liability must attach to the defendants for having condoned and permitted the practice of propping open doors with brush or mop handles to have continued uninhibited over a long period of time. In my view, the appropriate apportionment of liability between the plaintiff and defendants is 75% against the defendants and 25% against the plaintiff.
64. The plaintiff, in falling backwards, collided heavily with the wall on the other side of the corridor opposite the door into the shower room. She undoubtedly suffered a serious injury to her thoracic spine and also, I am satisfied, to her left shoulder. Neither side called any medical experts to give evidence concerning the plaintiff’s injuries and these are dealt with comprehensively in the medical reports which were admitted into evidence by agreement between the parties. These comprise a medical report from Mr. Benny Anto Padinjarathala, the Orthopaedic Surgeon under whose care the plaintiff came in Waterford Regional Hospital after she had been transferred there from South Tipperary General Hospital; the report of Mr. George F. Kaar, Consultant Neurosurgeon dated 24th October 2012; a report of Dr. Kenneth W. Patterson, a Consultant in Anaesthesia, dated 4th March 2013; two reports of Dr. Sean J. McCarthy, specialist in general injuries, sports injuries and exercise medicine, dated 4th April 2011 and 12th June 2013; the reports of Dr. Coleman Walsh, the plaintiff’s General Practitioner, dated 18th April 2011 and 24th May 2013; the report of Dr. James Morrison, Consultant Psychiatrist, dated 12th April 2011, 18th October 2012 and 31st May 2013. For the defendants, three medical reports were submitted by agreement, namely, two reports of Mr. Frank McManus, Orthopaedic Surgeon, dated 1st March 2013 and 29th April 2013, and the report of Dr. Richard Horgan, a Consultant Psychiatrist, dated 10th February 2012. All of these reports reveal that the main injury suffered by the plaintiff following what was a heavy fall, resulting in a severe impact with the wall in question, was a wedge fracture of the 6th thoracic vertebra. The treatment for this was conservative, namely, a period of immobilisation in hospital for a number of days followed by the wearing of a brace continuously for in excess of three months thereafter. This fracture healed, leaving a slight deformity, namely, a 15 degree Kyphus in the plaintiff’s spine at that level.
65. As a result of her injury, the plaintiff suffered considerable pain, particularly down her left side radiating into her lower limb.
66. As time went on, the plaintiff began to experience considerable pain and discomfort in her left shoulder and neck region. An MRI scan of the left shoulder on 18th October 2012, demonstrated a partial tear of the Supraspinatus tendon, bone oedema of the humeral head suggesting trauma and degenerative changes with some impingement. This was associated with considerable limitation of movement in the plaintiff’s left shoulder and weakness due to pain in the left shoulder. An earlier MRI done on 9th December 2011, showed degeneration and a moderate broad base posterior disc protrusion at the C5/C6 intervertebral disc which was distorting the Thecal sac and encroaching on the emerging bilateral C6 nerve roots. There was also disc degeneration at the C4/C5 level as well.
67. It is apparent that the plaintiff had degenerative disc disease in her neck prior to this accident but I am satisfied all of this was asymptomatic prior to her accident.
68. It is not surprising that the fall which the plaintiff experienced did significantly affect this already existing degenerative disease in her neck rendering it significantly symptomatic thereafter. There was, in addition, evidence of traumatic injury to the left shoulder in the MRI of 18th October 2012. As the more acute injury, namely, the fracture of her thoracic vertebra progressed towards recovery, the difficulty she was experiencing with her left shoulder and neck became more prominent, and as time went on, a dominating problem for her.
69. I am quite satisfied that since this accident, the plaintiff has had a great deal of pain and discomfort, particularly down the left side of her body and that all of this pain and discomfort had had a very debilitating effect on her life, particularly as it has, in a significant way, disrupted her normal sleep pattern leaving her tired, irritable and moody, which in turn has developed into a serious depression which has required continuous treatment since the early days of her recovery after this accident. In addition, she has suffered from flashbacks and nightmares relating to the circumstances of her accident which has been described by both psychiatrists as Post Traumatic Stress Disorder, but I would be reasonably satisfied that with the passage of time, these have diminished in intensity and frequency.
70. Although she went back to work relatively soon after this accident, after about four months, I am quite satisfied that the return to work was driven by financial necessity and her ability to cope at work was sustained by the goodwill and cooperation of her supervisor, Ms. O’Flynn, and her co-workers who assisted with or relieved her of the more onerous tasks.
71. The plaintiff, though considerably improved, particularly so far as the injury to her thoracic spine is concerned, nonetheless still has ongoing significant pain at this stage, mainly due to her shoulder problem and her psychological upset is still continuing and she remains on medication for her anxiety and depression.
72. In my view, the appropriate sum to be assessed in respect of her pain and suffering to date is the sum of €45,000.
73. For the future, I think it probable that the effects of this fall on her underlying degenerative disease in her neck will, as time goes on, diminish, and as her physical condition improves, so also in all probability, will her psychological status. Accordingly, in my view, the appropriate sum to be assessed in respect of her future general damages is the sum of €30,000, making a total of €75,000 for general damages.
74. At the close of the case, Mr. Maher S.C. for the defendants applied to the court to dismiss the plaintiff’s case under the provisions of s. 26(1) and (2) of the Civil Liability in Courts Act 2004. This section, which bears the side heading ‘Fraudulent Actions’ is in the following terms:
“26.—(1) 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.
(2) The court in a personal injuries action shall, if satisfied that a person has sworn an affidavit under section 14 that—
(a) is false or misleading in any material respect, and
(b) that he or she knew to be false or misleading when swearing the affidavit, 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.
(3) For the purposes of this section, an act is done dishonestly by a person if he or she does the act with the intention of misleading the court . . .”
It is well settled, that in making an application of this kind, a defendant bears the onus of proving on the balance of probability the various elements set out in section 26.
75. In this case, the defendants make the case that when the plaintiff swore her affidavit of verification on 14th November 2011, verifying the content of a reply to a notice for particulars which was dated 30th September 2011, the reply being dated 11th November 2011, that she knew that the reply to requests numbers 16 and 18 of the request for particulars were false and misleading.
76. The requests in question read as follows:
“16. Has the plaintiff ever suffered any injuries in any accident either prior to or subsequent to the incident which is the subject matter of these proceedings? If so, provide the following particulars in respect of each and every injury:-
(a) Date and place sustained.
(b) Detailed description of the nature of the injury.
(c) The names and addresses of any hospitals or medical institutions rendering treatment or consultation.
(d) The names and addresses of all physicians, surgeons or other medical practitioners attended.
(e) The nature an extent of recovery and if any permanent disability was suffered, the nature and extent of such permanent disability.
(f) If the plaintiff was compensated in any manner for the injury, please state the names and addresses of each an every person or organisation paying such compensation and the amount thereof.
(g) Please furnish copies of all medical reports pertaining to any such claim for compensation . . .
18. Please state if the plaintiff has any illness, sickness, disease, handicap, surgical operation or medical complaint, physical or otherwise prior to or subsequent to the accident which is the subject matter of these proceedings, if so, please advise:-
(a) The date and place sustained.
(b) The details of symptoms.
(c) The names and addresses of any hospital or medical institution rendering treatment or consultation and the names and addresses of all or any physicians, surgeons, medical practitioner rendering treatment or consultation.”
The reply to those requests, as contained in the reply dated 11th November 2011, is as follows:
“16. The plaintiff has not suffered from any other accident or injury of relevance to the injuries complained of in these proceedings other than a brief period of low back pain in or about 2005 that was treated by her GP, Dr. Coleman Walsh, with manipulation and did not reoccur . . .
18. None relevant save the history set out at 16. above.”
In the course of the proceedings, discovery was sought by the defendants by way of a notice of motion dated 20th February 2013. The discovery sought, which appears to have been conceded and complied with by the plaintiff, was in relation to the plaintiff’s medical history and was extraordinarily extensive. As a result, all of the records relating to the plaintiff’s, it would appear, entire medical history, going back to 2004, were discovered.
77. In the course of a lengthy cross-examination of the plaintiff, Mr. Maher S.C. for the defendants drew attention to and challenged the plaintiff on the following entries in her medical records.
78. The first of these was an entry dated 27th September 2004, in the records of her General Practitioner, Dr. Coleman Walsh, and it reads as follows:
“subjective symptoms: severe pain left hip
subjective findings: pain on hip flexion, internal and external rotation
assessment: The pain was so severe I wonder had she developed a fracture
procedure: injection intra muscular difene 75 mgs im stat
plan of action: referral hospital Waterford Regional
drug prescription: (new) DIFENE 50MG CAPSULE EC retarded caps, 1 caps TDS, 10 day(s), 30 caps.”
The following entry in the GP notes dated 28th September 2004, is in the following terms:
“date of examination: 28/09/2004
hospital: Waterford Regional – A 270511
diagnosis [M]: Trochanteric bursitis”
It is apparent from a perusal of the plaintiff’s records that the complaint recorded above was as described in the records diagnosed as a bursitis, was treated and is not ever again mentioned in the plaintiff’s records. When challenged on this in cross-examination, the plaintiff’s evidence was that she had no recollection whatsoever of this complaint and had completely forgotten about it, and even when challenged on it, still could not remember it.
79. The next entry in the plaintiff’s medical records to which Mr. Maher drew attention was in the GP records of Dr. Walsh dated 27th October 2005, and it reads as follows:
“subjective symptoms: neck pain
objective findings: tenderness left neck
plan of action: advised to do the McKenzie neck exercise programme
drug prescription: (new) DISTALGESIC 32/325 TABLET tabs, 2 tabs TDS, 30 day(s), 100 tabs
drug prescription: (new) ANXICALM 2MG TABLET tabs, 1 tabs daily, 7 days), 7 tabs.”
80. As is apparent from the medical records, there is no mention of this complaint again. In the reply to particulars dated 11th November 2011, as quoted above, the plaintiff mentions a brief episode of low back pain in about 2005 that was treated by her GP, Dr. Coleman Walsh. There is no mention whatever of such a complaint in the GP records and I would infer that the reply to particulars was probably a mistaken attempt based on the plaintiff’s faulty memory of the neck complaint she actually had in 2005.
81. When challenged on the subject of neck pain on the left side in October 2005, the plaintiff’s evidence, having apparently discussed the matter with her husband overnight, acknowledged that she had a once-off episode of neck pain then which she said was caused by leaving a window open, either a bedroom or car window, and she insisted that it was a once-off episode and that she had forgotten it until it was brought up by Mr. Maher in cross-examination.
82. The next matter to which attention was drawn derived from a note in the General Practitioner’s records dated 27th November 2006, where the plaintiff made a complaint of right hip pain (severe). She was referred in respect of this complaint to a Dr. Brian Mulcahy and it is apparent from the records that her complaint was fully investigated in Shanakiel Hospital, the conclusion of which was diagnosis of degenerative changes in the plaintiff’s right hip joint. The plaintiff, in her evidence, acknowledged this complaint and said that this complaint had not given her trouble since, until the recent past, when it began to trouble her again and that she might require surgery for it.
83. The next record referred to by Mr. Maher was a record of South Tipperary General Hospital and although the record is undated, it can be said to have related to a consultation between 31st July 2008 and 11th August 2008. The content of the record would suggest that the plaintiff was attending the hospital with regard to significant health issues entirely unrelated to the injuries of which she complains in this accident. As part of what would appear to have been a fairly extensive history taken from the plaintiff, the following is recorded:
“SR: Pain (L shoulder → L arm no neck discomfort)”
84. It is quite clear that this complaint was not the reason why she was in South Tipperary General Hospital on that occasion and there is no mention of it whatsoever thereafter. It seems to have arisen only as part of the taking of a comprehensive history and it does not appear to have given rise to any concern on anybody’s part. It did not receive any further attention and was not mentioned again.
85. The plaintiff’s evidence on this topic, when challenged on her evidence to the effect that she had not experienced neck or shoulder pain prior to the accident the subject matter of these proceedings, was that she could not remember this complaint in July 2008 at South Tipperary General Hospital.
86. Finally, Mr. Maher raised a complaint of low back pain made by the plaintiff to her General Practitioner on 9th February 2009, as disclosed by the GP records. It is apparent from the GP records that followed this date, that this complaint was extensively investigated and was related to fibroids and led, later in 2009, to the plaintiff having a hysterectomy performed. The plaintiff’s evidence in this regard was to the effect that the pain which she suffered, she described as being a year before the accident the subject matter in this case, was caused by fibroids and that when she had her womb removed, this pain disappeared.
87. As discussed above, the injuries which the plaintiff suffered in the accident the subject matter of these proceedings were a wedge fracture of the 6th thoracic disc and an injury to her left shoulder region, both of which are entirely consistent with the nature of the fall she had. The medical reports of the various doctors who treated the plaintiff in respect of those injuries and their sequelae were admitted by agreement into evidence. Also admitted to evidence were medical reports from the defendants, in particular Mr. Frank McManus, who unfortunately did not have an opportunity to see the MRI of the plaintiff’s left shoulder and therefore reserved his position with regard to that injury.
88. In my opinion, it would have been readily apparent to the defendants that the left hip complaint from 2004 was of a minor and transient nature and of no relevance at all to the injuries sustained by the plaintiff, the subject matter of these proceedings. Similarly, the complaint of left neck pain in October 2005 was also a minor event of a transient nature with no bearing on the injuries sustained by the plaintiff in July 2010, almost five years later. The problem of degenerative change in the plaintiff’s right hip discovered in 2006 similarly had no connection with the injuries in respect of which the plaintiff claims damages from the defendants. The complaint in South Tipperary General Hospital in late July 2009, of left shoulder pain and going down her arm with no neck discomfort was clearly isolated and not perceived to be of any significance at the time and the plaintiff could not remember it and I accept her evidence in that regard. It is readily apparent that this complaint, or anything similar, did not emerge again until after her accident in July 2010. Finally, the complaint of lower back pain in 2009 was explained in the medical records by the presence of fibroids and cured by the hysterectomy and had nothing whatsoever to do with the injuries suffered by the plaintiff in her fall in July 2010.
89. In light of all of the information disclosed to the defendants in the plaintiff’s medical records and bearing in mind that there is little or no dispute concerning the injuries suffered by the plaintiff in this accident, save to the relatively minimal extent revealed in the defendants’ medical experts reports, the forensic assault on the plaintiff to set up an application under s. 26 of the Act of 2004, can only be seen as wholly unjustified and an opportunist attempt to evade their liability to the plaintiff by a misconceived invocation of section 26.
90. It is obvious that reply number 16 to the request for particulars is inaccurate, but I am quite satisfied that this was the result of the plaintiff having completely forgotten about the minor hip and neck complaints she had in 2004 and 2005, and believing, in my view, rightly, that her right hip problem and her fibroids problem had no relevance to the claim she was making.
91. I am absolutely satisfied that when this reply to particulars was made, the plaintiff had no intention whatsoever of misleading anybody. I have had the opportunity of listening and observing the plaintiff give her evidence in the course of a lengthy examination and cross-examination and in the course of the latter, having to endure a searching examination, which clearly impugned her integrity. I am quite satisfied that she gave her evidence, so far as accuracy was concerned, to the best of her ability and recollection and at all times, honestly. I reject the submission or suggestion that she was attempting to mislead the court.
92. I have no hesitation in dismissing the defendants’ application under s. 26 of the Act of 2004. I would like to add that this section is there to deter and disallow fraudulent claims. It should not to be seen as an opportunity to prey on the frailty of human recollection or the accidental mishaps that so often occur in the process of litigation, to enable a concoction of error to be assembled so as to mount an attack on a worthy plaintiff in order to deprive that plaintiff of the award of compensation to which they are rightly entitled. There is a world of difference between this plaintiff’s case and the fraudulent claims that have been exposed in the cases that were opened to this court in dealing with this s. 26 application, namely:
(i) Folan v. Ó Corraoin & Ors. [2011] IEHC 487, Murphy J.
(ii) Rahman v. Craigfort Taverns Ltd. [2012] IEHC 478, O’Neill J.
(iii) Montgomery v. Minister for Justice, Equality and Defence & Anor.[2012] IEHC 443, O’Neill J.
(iv) De Cataldo v. Petro Gas Group Ltd. & Anor. [2012] IEHC 495, O’Neill J.
(v) Salako v. O’Carroll [2013] IEHC, 17, Peart J.
(vi) Ludlow v. Unsworth & Anor. [2013] IEHC 153, Ryan J.
It behoves defendants to use prudent discernment before taking the very serious step of making a s. 26 application.
93. Before leaving this topic, I would also observe that the situation that was confronted by the court in this case was brought about, it would seem to me, firstly, by the extension of the demand for particulars, far beyond its legitimate scope, a practice which, hopefully, following the judgment of Hogan J. in the case of Armstrong v. Sean Moffatt and Thomas Moffatt t/a Ballina Medical Centre and Maureen Irwin, in which judgment was delivered on 28th March 2013, will be curtailed or else condemned in the future.
94. Secondly, and here I do not make any criticism of the defendants because it would seem apparent that the plaintiff conceded the discovery sought, but discovery in this case extended far beyond what was relevant to the issues in the proceedings as raised on the pleadings. The mere fact that somebody makes a claim for damages for personal injuries does not entitle defendants to discovery of a plaintiff’s entire medical history. In the first instance, it is not right that plaintiffs should have these aspects of their personal lives disclosed in this way, when they bear no relevance to the issues in the case, and the availability of irrelevant medical records frequently gives rise to extending the length of trials because of the inevitable exploration of these records in cross-examination.
95. Mr. Treacy S.C. for the plaintiff, brought up the subject of aggravated damages because of the unjustifiable manner in which a s. 26 had been invoked by the defendants, but having considered the matter further, did not make an application for aggravated damages. He did ask the court to award additional general damages to the plaintiff to compensate her for the upsetting experience of having her reputation and good name unjustly impugned by the defendants in the pursuit of the s. 26 application, all under the protection of absolute privilege.
96. It would seem to me that if any damages were to be awarded to the plaintiff because of the manner in which the defence was conducted, these could only be awarded under the heading of either aggravated or exemplary damages. In these proceedings, the plaintiff claims damages arising from the negligence and breach of statutory duty of the defendants in respect of the system of work adopted. In my view, it could not be said that the upset of the plaintiff, caused by the unjust attack on her in the course of the defence of the proceedings was a foreseeable consequence of the defendants’ original negligence and breach of statutory duty. Accordingly, general damages in respect of that upset cannot be awarded in these proceedings.
97. The special damages in the case are agreed at €5,000 making a total of damages of €80,000.
98. Accordingly, there will be judgment for the plaintiff for the sum of €60,000 being 75% of the total damages.
Savickis v Governor of Castlerea Prison
[2016] IECA 310
JUDGMENT of Ms. Justice Irvine delivered on the 27th day of October2016
1. I have read in draft the judgment which my colleague, Hogan J., intends to deliver in relation to this appeal. Having done so, I fully endorse the conclusions which he has reached and the orders which he proposes. This brief judgment is intended solely to address Mr. Savickis’s appeal concerning the answer of the jury to question 3(C) on the issue paper.
2. It follows from my agreement with the conclusions of Hogan J. that I too would propose:-
(i) An award of damages in favour of Mr. Savickis in the sum of €10,000 with no reduction for contributory negligence for the reasons advised by Hogan J. in the course of his judgment regarding the jury’s answer to Question 2.
(ii) An award of €5,000 for exemplary damages for breach of constitutional rights in respect of the assault.
(iii) An award of damages of €4,500 in respect of negligence in respect of Question 3(B) subject to a discount of 50% in respect of contributory negligence for the reasons advised by Hogan J.
General observations
3. Mr. Savickis decided to invoke his rights pursuant to s. 94 of the Courts of Justice Act 1924 to set down his action for damages for assault and his other causes of action arising out of the same facts for hearing before a judge sitting with a jury. As a result, following a hearing that lasted six days, the jury gave their answers to the questions put to them for their determination.
4. It goes without saying that in such circumstances the jury had the opportunity to carefully assess the presentation of the evidence by both parties and the credibility of each witness. Further, for the purposes of arriving at their conclusions, the members of the jury had the opportunity of discussing the significance of that evidence with each other and also had the benefit of guidance from the trial judge as to how they should approach the issues for their determination.
5. The value to the decision maker of seeing witnesses give their evidence viva voce cannot be overstated, particularly when facts are disputed and where two differing accounts of a particular event are advanced by the parties, as in the present case in relation to whether or not Mr. Savickis was given a poncho to wear before he was moved to another cell on a different floor of the prison. The credibility of a witness may often be undermined by the manner in which they give their evidence or indeed their conduct observable in the courtroom while not giving evidence. When under examination or cross examination, they may leave long gaps before answering certain questions. They may blush, stammer or fidget. There are a thousand ways in which a witness, by the manner in which they give their evidence or by their demeanour, may assist a jury in deciding upon the truth or otherwise of particular evidence. Further, the jury in the present case had six days to discuss and mull over the evidence crucial to their decision as to which party had more likely given the accurate account of what had occurred in the padded cell into which Mr. Savickis had been put before his later transfer to a different cell.
6. By way of complete contrast to the manner in which a jury will determine an issue, an appellate court acts in a somewhat sterile environment. It has no opportunity of hearing or assessing witnesses. It often must make its decision based upon a transcript of the original hearing. Regrettably in this case the Court does not even have the benefit of a professional transcript. It has no more than a detailed note upon which to make its decision. Further, the conduct or mannerisms of witnesses are not captured by a transcript or a note of the evidence. While this court had the benefit of some CCTV footage which clearly captured the not insignificant assault perpetrated upon Mr. Savickis, the remainder of the CCTV footage is of no assistance to the issue that fell to be determined by the jury when faced with Question 3(C). There was no coverage of what had transpired before the prisoner was taken naked from the padded cell onto the corridor.
7. The last general observation which I would wish to make concerns the jurisdiction and role of the appellate court which is completely different to that of a judge or a jury hearing a case at first instance. Its role is not to consider all of the evidence presented on the appeal afresh and reach its own conclusion as to how it would have answered the questions which were put to the jury. As Denham J. stated in O’Connor v. Bus Atha Cliath [2003] 4 IR 459, “it is quintessentially a matter for a jury (or a trial judge acting in place of a jury) to hear and determine the credibility and reliability of that person and to determine the consequent facts of the case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.” Accordingly, the role of this court when considering Mr Savickis’s appeal from the answer of the jury to question 3(C) is one which is confined to an assessment as to whether or not there was credible evidence to support its conclusion.
Question 3(C)
8. The following question was put to the jury:-
3(C)
“Did the defendants fail to discharge their duty to provide safe and secure custody to the plaintiff and to treat the plaintiff with the appropriate dignity to which he was entitled in allowing the plaintiff to be removed from one section of the prison to another in a state of undress?”
9. It is clear that this question was destined to address the circumstances in which Mr. Savickis was allowed or required to be moved from one section of the prison to another in a state of undress. The question does not seek to address whether or not there was any justification for Mr. Savickis having been placed in the padded cell in the first place. It is material in this respect to note that there was no challenge to the evidence to the effect that once a prisoner was put into the padded cell that the relevant regulations required the removal of their clothing.
10. Accordingly, the question for this court on the appeal in relation to the jury’s answer to Question 3(C) is whether there was credible evidence to support its conclusion that the defendants had not failed in their obligation to treat Mr. Savickis with appropriate dignity in allowing him to be transferred from one cell to another in a state of undress?
11. Key to the jury’s decision on this issue was the evidence of Mr. Savickis and that of prison officers Shally, Condon and Dunne. I will briefly summarise the relevant evidence as fairly as I can from the somewhat disjointed note of the hearing.
12. Mr. Savickis in the course of his evidence accepted that when his clothes were taken from him he was given a blanket. He denied, however, that anyone had offered him a poncho or what was described in evidence as a Jesus blanket. While under cross examination he accepted as fact that when he was on the floor of the padded cell that a prison officer had tried to cover him up with a blanket.
13. Prison Officer Shally gave evidence that when Mr. Savickis’s clothing was taken from him on arrival in the padded cell that he was given refractory garments. He does not appear to have been challenged in relation to this evidence. I should also say that I can find no reference in the agreed note to suggest that the evidence of the prison officers to the effect that Mr. Savickis had been given a blanket which he later displaced and a poncho which he refused to wear was ever challenged.
14. Officer Dunne, who was in charge of the prisoner’s transfer from the padded cell to the second cell, gave evidence that Mr. Savickis was given a blanket and a poncho when his clothes were taken from him but that he refused to put on the poncho and that he displaced the blanket which was put over him to cover him.
15. It is also important to note that it was never advanced on Mr. Savickis’s behalf that even if he had refused the poncho that there were other steps that ought to have been taken by the defendants to protect his dignity and that they had been culpable in this regard. It was never, for example, suggested that the prison officers who escorted him to the second cell should have tried to hold a blanket over him in such a manner as might better have protected his dignity as he walked along the corridor. Relevant to any such challenge would have been the evidence of Officer Dunne who gave uncontroverted evidence that Mr. Savickis was still not compliant at the point at which he had to be moved and that it would have been difficult and indeed unsafe to have tried to put a Jesus blanket on him in the face of his objections.
16. It is clear to me that Question 3(C) was to be resolved by the jury by reference to the conflicting evidence concerning whether or not Mr. Savickis was given a poncho which he was asked to put on before he left his cell, there having been no other challenge to the manner in which the prisoner’s dignity was breached when being moved between the two cells.
17. While it is extremely concerning that any prisoner should be moved naked through public areas of the prison, save in exceptional circumstances, it should for the record be noted that this is not a case in which the defendants made no effort to protect the prisoner’s dignity as he was moved between cells. Prisoner officer Dunne gave evidence that in circumstances where Mr. Savickis would not disport the poncho which was offered to him and where the cell was urgently required for a suicidal prisoner, he took steps to ensure that the prisoner would not meet any members of the female prison staff, or indeed any other prisoners while moving between the two cells. It would appear, at least from that section of CCTV footage as covered his movements between the two cells, that he was successful to this extent.
18. Having regard to the evidence and to the matters to which I have earlier referred, it simply cannot be said that the was not credible evidence upon which the jury was entitled to conclude that the defendants had not failed in their duty to treat Mr. Savickis with the dignity to which he was entitled when being moved between the two cells. It is clear from their answer that they must have been satisfied as a matter of fact that Mr. Savickis had indeed been provided with and encouraged to put on the poncho but had rejected the garment with the effect that he left the cell naked, an answer that in my view was clearly sustainable on the evidence.
Conclusion
19. While it is worrying and disturbing that any prisoner should be moved or have to be moved through any area in a prison in a state of undress – circumstances that might well in another case justify findings of a breach of the prisoner’s constitutional rights – on the particular facts of this case there was ample evidence upon which the jury was entitled to reach that finding which it did. Accordingly I would dismiss the appeal in relation to the finding of the jury concerning Question 3(C).
20. As I have already indicated, I would otherwise allow the appeal in part and vary the order of the jury in the High Court by increasing the award for damages from €225 to a total award of €17,225.
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of October 2016
1. This is an appeal by the plaintiff against the findings of the High Court (Dunne J. and a jury) delivered in May 2013. The plaintiff had sued the defendants for assault, negligence and breach of constitutional rights arising from an altercation in Castlerea Prison, the details of which I will later describe. As we shall later see, the jury rejected the majority of the plaintiff’s claims, but they did find – although, perhaps, not quite in terms – that he had been assaulted and awarded him €4,500 in damages. The jury also found, however, that the plaintiff was 95% contributorily negligent and his award was thus reduced to €225. Before considering the issues which arise in this appeal, it is first necessary to set out the background facts.
2. As a preliminary, however, I should observe that there was no professional transcript available in respect of the six day witness action in the High Court. Although there is a helpful solicitor’s note of the evidence which has been agreed, the absence of a professional transcript in such an important, fact specific witness action has proved to be a huge handicap to this Court. It has made the task of assessing the evidential and factual basis for the jury’s verdict an extremely difficult one. This is especially so in the present case where there were sharp divergences in the evidence given by the respective witnesses for each side with the credibility of many being put in issue.
3. In addition to the note, however, the jury had available to it closed camera television (“CCTV”) recordings of the incidents which were taken from a variety of different angles within the prison. At the hearing of the appeal the Court ruled that it should view these recordings and did so in the present of the parties. The CCTV evidence has proved to be of very considerable assistance.
The background facts
4. The present proceedings arise from an incident which took place in Castlerea Prison on 29th September 2009. The plaintiff had been convicted of rape in February 2009 and he was then serving a six year prison sentence. The plaintiff is Lithuanian and his command of English at the time was poor.
5. On the day in question the plaintiff had just finished making a telephone call from prison and was taken from his cell by a prison officer for that purpose. When the call was ended, he was brought back to his cell, but the cell door was now locked. A prison officer instructed the plaintiff that he was to go out into the exercise yard of the prison. The plaintiff gestured to his feet and to his top in order to point out that he was wearing neither socks nor a jumper and that he was not dressed to go outside. The prison officer nonetheless insisted that the plaintiff go to the yard, but he declined to do so.
6. At this point, the prison officer in question suddenly confronted the plaintiff and placed his head in a head lock while the plaintiff clung to the railings, presumably in an effort to resist being moved towards the exercise yard. At that point perhaps four to five more prison officers quickly arrived and prised the plaintiff from the railings and totally subdued him. While the plaintiff is clearly a tall, athletic and strong man, he did not respond to the actions of the prison officer in an aggressive manner. He did not attempt to strike out at the prison officer and did no more than cling to the railing. It is clear, however, that as he was being subdued by the prison officers using control and restraints (“C & R”) techniques, he was struck some three to four times by a particular prisoner officer with punches to the chest. The striking of the prisoner in this fashion was clearly evident in the CCTV footage which each member of the Court witnessed.
7. Quite independently of the CCTV evidence, the plaintiff’s account of the manner in which he said he had been assaulted is entirely consistent with the medical evidence given at the trial. The plaintiff was subsequently brought to Roscommon County Hospital later evening and the medical and nursing notes on admission showed bruising on his face and forehead, trauma injury to his chest and traces of blood in his urine. Mr. James Binchy, a consultant in emergency medicine attached to Galway University Hospital, gave evidence that he had reviewed these notes and he concluded that these injuries were consistent with “a blunt blow to the patient.” Mr. Binchy also thought it was possible that the plaintiff could have had a crack in his ribs which had not been picked up by the x-rays.
8. The then Deputy Governor of Castlerea Prison, Ms. Ethel Gavin, also gave evidence for the plaintiff. She had reviewed the relevant CCTV footage at the time and she was of opinion that the events captured thereon required investigation. She said that the punching of a prisoner who was subjected to C & R restraints was unacceptable. It should be noted, however, that each of the prison officers who gave evidence for the defendants denied that the plaintiff had been punched in the manner described. I shall return presently to this issue.
9. The plaintiff was then brought to high security cell where, for security reasons, his clothing was removed and he was offered a blanket. Some two hours later the prison officers returned to the cell and the plaintiff was offered a poncho or a blanket to cover him while he was transferred from one cell to another. It would seem that the plaintiff refused to wear this garment or to take the blanket as covering before he was removed from the cell. He was then taken through the prison while entirely naked from one cell to another by a troupe of about twelve to fifteen prison officers. This second incident lasted about three minutes.
10. The plaintiff was taken later that evening to Roscommon General Hospital. He was bruised, had been bleeding and was in pain. No fractures were seen on x-ray, but the plaintiff was prescribed a course of painkillers.
The hearing in the High Court
11. The plaintiff subsequently commenced these proceedings for damages for assault, negligence and breach of constitutional rights. The action was heard over six days by Dunne J. and a jury in April and May 2013. I will refer later in more detail to the evidence given at the trial, but in summary the jury seems to found that although the plaintiff had been assaulted, he was guilty of 95% contributory negligence. The jury also found that the State authorities had been negligent in the manner in which they had provided training for staff in control and restrain techniques. All other claims were rejected by the jury.
12. The jury ultimately awarded the plaintiff the sum of €225, i.e., representing a gross award of €4,500 reduced by 95%. The plaintiff originally appealed to the Supreme Court against all adverse jury findings, but this appeal was transferred to this Court by order of the Chief Justice (with the concurrence of the other members of the Supreme Court) on 28th October 2014 in accordance with Article 64 of the Constitution following the establishment of this Court. No cross-appeal has been taken by the State against so much of the jury award as found against the defendants.
13. At the close of the evidence, five questions were put to the jury on an issue paper. The questions and answers were in the following terms.
Question 1:
In all the circumstances was it necessary for the defendants to apply force to the plaintiff for the purpose of maintaining good order in Castlerea Prison? If the answer to this is ‘No’, proceed to assess damages. Answer – Yes.
Question 2:
If the answer to (1) is ‘Yes’, in all the circumstances was the force used only such as was reasonably necessary and proportionate for that purpose? If the answer to this is ‘No’, proceed to assess damages. Answer – No.
Question 3:
Did the defendants fail to discharge their duty to provide safe and secure custody to the plaintiff and to treat the plaintiff with the appropriate dignity to which he is entitled:
(a) in failing to train prison officers to the degree necessary to avoid the occurrence of the incident on 29th September 2009? Answer – Yes
(b) in allowing prison officers to apply C & R techniques otherwise than in a proper and reasonable fashion? Answer – No
(c) in allowing the plaintiff to be removed from one section of the prison to another in a state of undress? Answer – No.
Question 4:
Was the plaintiff guilty of contributory negligence in obstructing or resisting prison officers? If the answer to this is ‘No’, proceed to assess damages without regard to any apportionment for contributory negligence. If the answer to this is ‘Yes’, apportion blame in percentage terms to: (a) the defendants; and (b) the plaintiff; and proceed to assess damages on the basis of such apportionment.
Answer: (a) = State and Prison Officers, (b) Darius Savickis (a) = 5% (b) = 95%.
Question 5
Was the conduct of the defendants, up to and including at the trial of the action, inappropriate in all the circumstances such that aggravated damages should be awarded? If the answer to this is ‘Yes’, proceed to assess aggravated damages. Answer: No.
The appeal to this Court
14. Before this Court the plaintiff contended that these adverse jury findings were essentially perverse and unsupported by the evidence. The plaintiff further contends that the findings of contributory negligence have no basis in law and even the gross monetary award was far too low. For its part, the State defendants maintained that the jury findings and the jury award are justified on the evidence and should not be disturbed.
15. I now propose to consider in turn the various issues raised on appeal, following closely for this purpose the specific questions put to the jury and their answers to these questions, albeit not always necessarily in quite the same sequence as the jury answers themselves.
Was it necessary for the defendants to apply force to the plaintiff for the purpose of maintaining good order in Castlerea Prison?
16. While there is no doubt but that the incident escalated rapidly following the original altercation between the plaintiff and the prison officer, the jury were nonetheless entitled to conclude that the defendants were entitled to apply force to maintain order in the prison. It may be that the original altercation came about by reason of a simple linguistic misunderstanding between the plaintiff and the prison officer, yet the fact remains that the prisoner did not obey a lawful direction given by the officer in question. Maintenance of good order is vital in prisons, since without it serious incidents can arise and can quickly get out of hand.
17. The jury were accordingly entitled to reach the conclusion that the initial administration of force by the prison officers (i.e., first head locking the plaintiff and then subjecting him to C & R techniques) was in principle justified.
Was the plaintiff assaulted by a prison officer?
18. The jury found in answer to the second question that the force used by the prison officers was not such as was necessary and proportionate in all the circumstances. While the jury was not asked in terms to make a finding as to whether the plaintiff had been assaulted, it may be observed that in her address to the jury, Dunne J. expressly remarked that if the jury considered that the plaintiff had been punched, this would have constituted the use of excessive force.
19. In these circumstances, I would interpret the jury’s answer to the second question as a finding that the plaintiff had been assaulted. Quite apart from the fact that there was no appeal against this finding, in my view, the evidence clearly established that, regrettably, the plaintiff was struck some three to four times in quick succession by a particular prison officer while he was subjected a C & R restraint by other officers. This force was excessive, disproportionate and unjustified. The plaintiff must therefore succeed in respect of his claim for assault.
Damages for assault
20. The punches delivered to the plaintiff’s chest in all likelihood accounted for the majority of the symptoms he was experiencing when admitted to Roscommon County Hospital. There he reported extreme tenderness over the rib cage. He underwent x- ray examination for suspected fractured ribs. While no displaced fractures were found, non displaced fractures could not be ruled out. The plaintiff also had traces of blood in his urine, injuries consistent with blunt trauma and a number of bruises were noted. He was prescribed pain killing medication and in the course of his evidence described feeling uncomfortable as a result of his injuries for several months. While the assault was a serious matter, it did not leave the plaintiff with long-term consequences and he recovered from his injuries after a number of months. His injuries were such that I consider an award of €10,000 would be appropriate compensation. If perchance I am incorrect as to causation and any part of the plaintiff’s injuries which may have been inflicted by one or more kicks from a prison officer, it matters not, as any such action amounted to an unwarranted assault on the plaintiff for which he must be compensated.
Whether the award of damages for assault should be reduced by reason of contributory negligence
21. Although the jury found that the plaintiff was assaulted by a prisoner office, they nonetheless reduced the award by 95% on the ground of the contributory negligence on his part. This immediately raises the question of whether the law on contributory negligence is capable of applying to an intentional tort such as assault and, even if it is, whether the jury’s attribution of fault to the plaintiff in this manner was justified.
22. I recognise immediately that, judged from the standpoint of principle, there is much to be said for the proposition that the doctrine of contributory negligence should have no application to an intentional tort, precisely because the latter species of tort is not itself negligence based. No one would, I think, suggest that a car thief should be able to set up a defence of contributory negligence even if the owner had foolishly left her keys in the car. Nor would the courts countenance a state of affairs where an award of damages to a tourist who was set upon, assaulted and robbed should be reduced on this account because he had unwisely walked late at night in an area of a city which he did not know and had thereby exposed himself to an unnecessary risk, even if such imprudent conduct could itself be properly described as negligent. As Lord Rodger pointed out in Standard Chartered Bank v. Pakistan National Shipping Corporation [2002] UKHL 43, [2003] 1 AC 959, 975 jurists as learned in the field of civil wrongs and private law as Pollock have consistently protested at the idea that the defence of contributory negligence should be available in the case of intentional torts.
23. Regardless of any question of principle, however, the matter is put beyond doubt by the opening lines of s. 34(1) of the Civil Liability Act 1961 (“the 1961 Act”):
“Where, in any action brought by one person in respect of a wrong 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….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 of fault of the plaintiff and defendant….”
24. Section 2 of the 1961 Act provides that “wrong” is defined as meaning:-
“…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 act is intentional….”
25. The definition of “wrong” in s. 2 thus expressly extends to an intentional tort, so that in principle at least the rules regarding contributory negligence in s. 34(1) are not confined to negligence based civil wrongs.
26. It is true, of course, that the definition of “wrong” in s. 2 is not for all possible statutory purposes. Rather, the statutory definition is subject to the qualification that it is expressed to apply “save where the context otherwise requires”. The context of the application of the contributory negligence rules contained in s. 34 of the 1961 Act is not, however, such that it would necessarily be inconsistent with the application of those rules if they were to apply in the case of intentional torts. In other words, as it is quite possible to apply the contributory negligence rules to intentional torts – even if in the past some venerable jurists thought it would be wrong in principle to do so – the context of s. 34 does not require the application of a different and more confined meaning to the word “wrong” such as would include intentional torts.
27. All of this means that for the purposes of the 1961 Act, the definition of “wrong” includes intentional torts and the contributory negligence rules apply to that species of wrong just as much as to the ordinary action in negligence. It follows, accordingly, that there may well be cases where the contributory negligence rules apply in the case of intentional torts.
28. What is clear, however, is that such cases are exceptional: as Elias J. said in Bici v. Ministry of Defence [2003] EWHC 786, it would be a “very rare case where damages should be reduced in circumstances where the defendant’s conduct is intentional and unjustified.” An example, perhaps, is the decision of Hutton J. in Wasson v. Chief Constable of the Northern Ireland [1987] N.I. 420. In that case Hutton J. found that the plaintiff had been assaulted by the wrongful firing of a plastic baton round, but he reduced the damages by half for contributory negligence by reason of the fact that the plaintiff had voluntarily participated in a riot.
29. In the present case, nothing of the kind arises. It is true that the plaintiff was a convicted person, serving a prison sentence in respect of a very serious crime. It is also true that this entire incident initially came about as a result of the plaintiff refusing to comply with a lawful direction of a prison officer. But, as I have already stated, the plaintiff did not participate at all in the fracas and beyond endeavouring to cling on to the railing when first confronted by a prison officer, did not thereafter offer resistance when subdued by the prison officers. The plaintiff, moreover, was already subject to a C & R restraint when he was punched.
30. In these circumstances, there is simply no basis at all for the jury’s finding that the plaintiff was guilty of contributory negligence in respect of the assault. It could not be suggested that the repeated punching of the plaintiff by a prison officer had any lawful justification. Quite the contrary: as Article 40.3.2 of the Constitution requires the State to protect the person, it followed that the State and its officials were under a particular duty to ensure the personal safety of detained persons such as the plaintiff. As Fennelly J. said in Creighton v. Ireland [2010] IESC 50:
“A sentence of imprisonment deprives a person of his right to personal liberty. Costello J. explained in Murray v Ireland [1985] I.R. 532,542 that “[w]hen the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept.” Nonetheless, the prisoner may continue to exercise rights “which do not depend on the continuance of his personal liberty….” I would say that among these rights is the right to personal autonomy and bodily integrity. Thus, it is common case that the State owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts. This does not amount, however, to a guarantee that a prisoner will not be injured…”
31. Measured, therefore, by reference to these standards, it could not be said that the plaintiff was guilty of contributory negligence in respect of this intentional assault. This Court can, of course, reverse a jury finding of contributory negligence where it is one that no reasonable jury could have arrived at or where, in the words of Irvine J. in Buckley v. Mulligan [2016] IECA 264 “such apportionment was grossly disproportionate having regard to the evidence”. In the present case, the jury’s verdict that the plaintiff was guilty of contributory negligence in respect of these assaults was unreasonable and grossly disproportionate in the light of the evidence.
32. In these circumstances, I would reverse the jury’s finding of contributory negligence in its totality so far as these assaults were concerned.
Is the plaintiff entitled to exemplary damages for breach of constitutional rights in respect of the assault?
33. The jury found that the plaintiff was not entitled to aggravated damages by reason of the conduct of the State and the prison officers. (I will treat aggravated and exemplary damages as effectively synonymous, at least for the purposes of this judgment). In view of the established legal authorities, it was not open, in my view, for any reasonable jury to arrive this conclusion.
34. The leading authority on the question of the award of exemplary damages remains that of the Supreme Court in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305. That was a case which arose out of industrial action taken by the defendant trade union in a particular area of west Cork which had the effect of depriving certain primary school students of schooling for the best part of six months. The Supreme Court concluded that it was appropriate to award the plaintiffs exemplary damages by reason of the breach of their constitutional right to free primary education.
35. Finlay C.J. enunciated the test to be applied in cases of this kind ([1991] 2 I.R. 315, 321):
“..this is an appropriate case in which the court should feel obliged to mark its disapproval of the conduct of the defendants to the extent of awarding exemplary damages against them for the following reasons:-
(a) the right which was breached on this occasion was one expressly vested in a child by the Constitution;
(b) the right which was breached was one which, having regard to the education and training of a child was of supreme and fundamental importance;
(c) it must be presumed that the defendants were aware of that importance;
(d) the breach of the constitutional right involved was an intended, as distinct from an inadvertent, consequence of the defendants’ conduct.”
36. Each of these considerations apply to the present case. First, while the assault upon the plaintiff was itself a tort, it also amounted to clear breach of the plaintiff’s constitutional right in Article 40.3.2 to the protection of his person and to associated or cognate constitutional rights such as his right to bodily integrity. Second, the right which was breached was one which, having regard to the State’s duties to persons in its custody, was of supreme and fundamental importance. Third, it may equally be presumed that the defendants were aware of the importance of that right in a prison setting. Fourth, the violation in question was intentional and not simply inadvertent.
37. There is also a further consideration. The trial in question lasted for six days in which the prison officers who were called to give evidence on the behalf of the State repeatedly denied that the plaintiff had been punched, even when the relevant CCTV evidence of the episode was shown to them. One prison officer went so far as to make the claim that that the prison officer who is clearly seen on the CCTV administering the punches was “putting his hand in two or three times to remove [the plaintiff’s] clothing.” It is, I regret to say, very difficult to avoid the conclusion that some of the witnesses tendered by the State told lies regarding this matter in the course of their evidence.
38. This is conduct which this Court should not tolerate for an instant. Accordingly, just as in Conway, this conduct calls for the award of exemplary damages to mark not only a grievous breach of the plaintiff’s constitutional rights, but also to mark the strong disapproval by the Court of an endeavour by agents of the State (namely, the relevant prison officers who denied in evidence that there had been an assault on the plaintiff) to hide their complicity in this wrongful conduct in the face of overwhelming evidence to the contrary.
39. When awarding exemplary damages for breaches of constitutional rights, the High Court has in recent years tended to award a plaintiff 50% of the sum awarded as compensatory damages: see, e.g., the judgment of Dunne J. in Herrity v. Associated Newspapers Ltd. [2008] IEHC 249, [2009] 1 I.R. 326 and my own judgment in Sullivan v. Boylan (No.2) [2013] IEHC 104, [2013] 1 I.R. 510. While this is not a firm practice – still less a settled rule of law – it provides a useful yardstick for measuring any award of exemplary damages, especially where (as here) the award of compensatory damages is itself (relatively) modest.
40. In these circumstances, I would propose to award the plaintiff the sum of €5,000 by way of exemplary damages in respect of the assault.
The application of the C & R techniques
41. The question of the training in and the use of C & R techniques was addressed in parts (a) and (b) of question 3. While the jury found that the prison officers had been given inadequate training in these techniques, they also found that the prison officers had used these techniques in an appropriate fashion. While these C & R techniques are frequently deployed by law enforcement agencies to subdue violent or dangerous persons, the evidence led by the plaintiff suggested that these techniques are potentially dangerous, especially where inappropriate pressure is placed on the neck such that breathing is obstructed.
42. There was certainly evidence by which the jury could conclude that the training given to the prison officers in respect of these techniques was inadequate. Thus, for example, the then Deputy Governor Gavin acknowledged that while every prison officer should do an annual refresher course on C & R techniques, shortages of resources in 2009 meant that this did not occur. Many of the other prison officers were unclear as to when they had received a refresher course.
43. The jury also found that the restraint techniques had been appropriately deployed by the defendants in the present case. This was a verdict which they were entitled to reach on the evidence in view of the necessity to preserve good order within the prison.
44. To some extent, however, the verdicts are at least superficially inconsistent with each other. Without a view to resolving any such possible inconsistency, I would, however, interpret these different answers as saying, in effect, that while the defendants were entitled to use C & R techniques in the circumstances, the plaintiff suffered injury by reason of their deployment by prison officers who lacked the appropriate degree of training in these techniques.
45. The evidence of the plaintiff’s expert on C & R techniques, Mr. Duggan, was to the effect that the use of these techniques without appropriate training is harmful and potentially dangerous. While Mr. Duggan was, of course, cross-examined, much of his evidence on this topic was not seriously challenged. No expert evidence on C & R techniques was given on behalf of the State.
46. Mr. Duggan pointed in his evidence to a number of examples where this had occurred in the present case. Thus, for example, he considered that the headlock applied by the first prison officer was “dangerous” and “involved force against the throat and neck”. He also stated that the use of a “guillotine” hold on the prisoner by the prison officers presented a risk of positional asphyxia and unconsciousness in the manner in which he was pushed down a stairs with his head below his heart and diaphragm.
47. In these circumstances, the conclusion must be that the jury decided that the C & R techniques were applied in a negligent fashion by prison officers who lacked the appropriate training. As Mr. Duggan observed in evidence, this must have been extremely painful and, indeed, frightening for the plaintiff.
Damages for negligence in respect of the C & R techniques
48. It is difficult to assess the damages in an unusual case of this kind. The vast majority of the plaintiff’s injuries must be ascribed to actions which are already covered by his claim for damages for assault. Nonetheless, it is perfectly clear from his oral evidence and from the CCTV footage viewed by this court that the plaintiff was entitled to separate compensation in respect of the defendant’s negligent use of C & R techniques. The plaintiff’s own evidence was that he was pushed to the ground. He found it difficult to breathe. His airway was compromised and he ensured what was undoubtedly a very frightening experience when his head and body were pushed off the landing and into the stairwell where his head was held beneath level of his body and his chest obviously crushed against the top step.
49. When asked to assess damages for the defendant’s negligence in this regard, the jury awarded a sum of €4,450. I cannot say that was an inappropriate figure to compensate the plaintiff for any injuries sustained by him over and above those which were inflicted upon him by way of assault.
50. Where I part company with the jury is its apportionment in respect of liability of liability of 95%.
51. An appellate court is free to interfere with a finding of contributory negligence if satisfied that it is grossly disproportionate to the plaintiff’s causative contribution to his injuries. While the plaintiff’s conduct in refusing to obey the lawful instruction of a prison officer was the proximate cause of the application of the C & R techniques, I would reduce this award by 50% to reflect the plaintiff’s contributory negligence. In these circumstances, I would propose that the gross award under this heading should be reduced to a net €2,225.
The removal of the plaintiff while naked from one cell to another
52. It is clear from the evidence that the jury were entitled to find that the State authorities were entitled to require that the plaintiff remove all his clothes as a suicide precaution prior to his removal to a padded cell following the first incident. They were further entitled to find that the prison officers were entitled to remove those clothes from the prisoner when he was left in the cell with a blanket.
53. Although the plaintiff denied that he was offered any clothing, the prison officers denied this: they said that he had refused to accept or wear the poncho style-garment which they offered him when he was in the cell. They also stated that he had refused to accept the blanket he was offered as a covering before he was taken from the cell. The jury were obviously entitled to believe the prison officers’ accounts in this regard and in that respect their verdict cannot be disturbed by this Court.
54. It is clear from the CCTV recording that the plaintiff was taken out of the cell at about 4.25pm, which is some two hours after the first incident. The CCTV evidence shows that the plaintiff was taken from the cell and effectively frog-marched by prison officers while under a form of C & R restraint through the prison to another cell. The plaintiff was entirely naked, although he was surrounded by a troupe of perhaps twelve to fifteen prison officers, one of whom is seen carrying what appears to be either a grey blanket or poncho style garment as he walked behind a procession of the other officers. This entire incident lasted some three minutes.
55. It goes without saying that the removal of a prisoner entirely naked from one part of a prison to another is a very serious procedure which requires a very high degree of justification. The jury were, however, clearly entitled to prefer the accounts of the State’s witnesses that the removal of the plaintiff to a cell in another part of the prison was necessary and that the plaintiff had refused to wear the clothing or covering which had been offered to him.
56. The Preamble of the Constitution commits the State to upholding the “dignity…of the individual”. As I have already pointed out, Article 40.3.2 requires the State to protect the “person” and the recognition of an unenumerated personal right to privacy has long been recognised since the major decisions in McGee v. Attorney General [1974] I.R. 287 and Kennedy v. Ireland [1987] I.R. 587. All of these rights are engaged by the circumstances of the present case and, in a sense, run into each other. To be taken forcibly while entirely naked for some three minutes through a prison is undignified and humiliating and the basic protection of personal privacy is obviously an element of the protection of the person in Article 40.3.2.
57. Not without hesitation, however, I believe that this Court is constrained by the findings of the jury to accept that the State authorities were entitled to remove the prisoner in a state of nakedness where his removal to another cell within the prison was deemed necessary and essential in the interests of good prison order and where he had already refused to accept the blanket and the clothing which had been offered to him. While it was, of course, nonetheless incumbent on the State authorities to take the greatest possible steps to minimise this otherwise gross intrusion into the prisoner’s dignity, person and privacy, the jury have found in effect that there were no further steps which the authorities could usefully or appropriately have taken in this regard given the steadfast refusal by the plaintiff to accept the clothing or covering which he had been offered while in the cell prior to his transfer.
58. In this regard it must be observed that – to their credit – as they pointed out in evidence, the prison officers ensured that no female staff or other prisoners were in the area as the prisoner was so transferred. On the note of the evidence available to this Court there was no evidence, for example, that the prison officers ought as a matter of good practice to have attempted to cover the plaintiff in some way once he emerged from the cell. As Irvine J. has pointed out in the judgment she has just delivered, there was evidence from the prison officers that the plaintiff at that point was still not compliant with authority and it might have been difficult or even unsafe to have attempted to cover him in the face of his objections.
59. While the courts must, in the last resort, uphold the and vindicate the constitutional right of prisoners to the protection of their person and their personal dignity, they also must do so in a context where the difficulties and dangers regularly faced by prison officers who daily undertake a challenging task on behalf of the State are also acknowledged.
Conclusions
60. In summary, therefore, I would conclude as follows:
61. First, I would uphold the jury’s conclusion that the State authorities were entitled to use appropriate force against the plaintiff once he had refused to obey a lawful direction from the prison officer to go outside.
62. Second, the jury’s conclusion that excessive force was used in the circumstances must be understood as amounting to a finding that the plaintiff was unlawfully struck three or four times by a prison officer while he was subject to a C & R restraint. This finding is clearly supported by both the CCTV evidence and the relevant medical evidence.
63. Third, I consider that the jury’s award of a gross figure of €4,450 damages in respect of this assault is manifestly inadequate. I would substitute an award of €10,000 in place of the jury’s award.
64. Fourth, while it is clear that the principles of contributory negligence provided for in s. 34(1) of the 1961 Act can apply to an intentional tort such as assault, there was no basis at all for the jury’s finding that there had been contributory negligence on the part of the plaintiff so far as the assault was concerned. I would accordingly set aside that finding of contributory negligence in its entirety.
65. Fifth, while the jury found that this was not a case which called for the award of exemplary damages so far as the assault was concerned, this conclusion cannot be sustained as a matter of law. This is rather a case which in the light of the principles articulated by the Supreme Court in Conway calls for the award of exemplary damages for breach of constitutional rights. I would therefore award the plaintiff some €5,000 as exemplary damages in respect of the assault.
66. Sixth, I would uphold the jury’s finding that the staff had received inadequate training in the application of the C & R techniques. I would interpret that finding as a finding that while the use of the C & R techniques was appropriate these techniques had been applied in a negligent fashion.
67. Seventh, I consider that the jury’s award of damages in respect of the negligent use of the C & R techniques under this heading cannot be disturbed. I would, however, reduce that gross award by some 50% in view of the contributory negligence of the plaintiff, since it was his refusal to obey a lawful direction from the prison officer which was the proximate cause of the application of the C & R techniques in the first place. The jury’s finding of 95% contributory negligence is, however, disproportionate and cannot be sustained. I would accordingly substitute therefore a figure of 50% contributory negligence in respect of the negligence award, so that the gross sum of €4,450 should be reduced to a sum of €2,225.
68. Eight, I would uphold the findings made by the jury having regard to the special circumstances of this case that the transfer of the prisoner from one cell to another while entirely naked was appropriate and justified. There was sufficient evidence upon which the jury could have made these findings and, in these circumstances, this Court cannot interfere.
69. It follows, therefore, that I would allow the appeal to the extent indicated in this judgment and I would accordingly award the plaintiff the total sum of €17,225 in damages.
Doyle v Donovan
[2020] IEHC 11 (17 January 2020)
JUDGMENT of Mr. Justice Garrett Simons delivered on 17 January 2020PLAINTIFFDEFENDANTINTRODUCTION1. This matter comes before the High Court by way of an appeal from the Circuit Court. Theproceedings are personal injuries proceedings in which the Plaintiff seeks damages inrespect of injuries said to have been received in a road traffic accident on 1 August 2017.The case is unusual in that the Plaintiff seeks aggravated damages. It is said thataggravated damages should be awarded to mark the court’s disapproval of the manner inwhich the defence of the proceedings has been conducted. The Personal Injuries Defencedelivered in the proceedings contains a plea to the effect that the Plaintiff had deliberatelycaused the collision. This plea is said to involve an imputation of dishonesty andcriminality.2. In the event, the Defendant did not attempt to stand over this plea. Whereas liability hadbeen in issue before the Circuit Court, there was no suggestion in the Defendant’sevidence-in-chief to the Circuit Court that the collision had been other than an accident.On cross-examination, the Defendant declined to stand over the plea that the collisionhad been deliberately caused. The most that was suggested in evidence is that thePlaintiff had braked suddenly and that this may have been negligent.3. The position since adopted by the Defendant before the High Court on appeal has been toconcede liability. The hearing before this court proceeded as an assessment only.4. One of the issues to be addressed in this judgment is whether these events justify themaking of an award of aggravated damages against the Defendant.ACCIDENT ON 1 AUGUST 20175. The only witness who gave evidence before the High Court was the Plaintiff, Mr MichaelDoyle. In circumstances where the Defendant had conceded liability for the purposes ofthe appeal, the precise details of the accident on 1 August 2017 were dealt with briefly.Insofar as relevant to the nature and extent of the injuries suffered by the Plaintiff, theuncontroverted evidence is as follows. The Plaintiff is employed as a general operativeinvolved in maintaining bus shelters, and uses a transit type van for the purposes of hiswork. The Plaintiff had been exiting the national road known as the “N3” via a slip roadnear the Blanchardstown shopping centre. The Plaintiff noticed a car parked on therighthand side of the slip road. A woman flagged him down. The Plaintiff explained thathe thought that the woman may have mistaken his van for a recovery vehicle. He furtherPage 2 ⇓explained that he decided to stop, and intended to pull in to his right. He says that hemoved down a gear, put on his indicators, and looked in his mirrors.6. The Plaintiff says that his vehicle was then hit by the vehicle (Volkswagen Tiguan) drivenby the Defendant. He says his vehicle was hit very hard, and that his whole head andbody were thrown forward. He describes himself as being in shock, and states that heneeded to take time to compose himself.7. The court has also been provided with photographs which illustrate the damage caused tothe Plaintiff’s vehicle. The bumper on the driver’s side was damaged, the back door wasoff line, the indicator was cracked, and the chassis was bent. The quarter panel was alsobent.PERSONAL INJURIES DEFENCE8. Given that the Plaintiff seeks an award of aggravated damages based on the manner inwhich the defence to the proceedings has been pleaded, it is necessary to set out therelevant part of the Personal Injuries Defence as follows.“4. PARTICULARS OF NEGLIGENCE/CONTRIBUTORY NEGLIGENCEIf the Plaintiff sustained the alleged or any personal injuries, loss and damage,which is denied by the Defendant, the same was solely caused by the Plaintiff’s ownnegligence; alternatively, the Plaintiff was guilty of contributory negligence asfollows:–(a) Violently braking his vehicle on the public highway and thereby causing anemergency situation resulting in the Defendant colliding into the rear of thePlaintiff’s vehicle.(b) Failing to indicate his intention.(c) Deliberately causing the collision complained of.”PERSONAL INJURIES9. The Plaintiff says that he did not have any pain in the days immediately after the accidenton 1 August 2017. The first time the Plaintiff sought medical attention was when heattended at the Mater Smithfield Rapid Injury Clinic on 14 August 2017, i.e. some twoweeks after the accident had occurred. He says that he had a pain down his neck and hisright shoulder.10. The Plaintiff also gave evidence of having subsequently noticed a swelling on his neck andshoulder: he describes this as being similar in size to a golf ball. The Plaintiff says thathe attended a physiotherapist in relation to this swelling. He states that thephysiotherapist explained that the swelling would reduce after a period of approximatelytwelve weeks. The Plaintiff also states that he was instructed to perform certain exercisesusing an elasticated band, and that the swelling did indeed reduce after a twelve weekperiod.11. The Plaintiff says that his current state of health is such that it is uncomfortable toperform certain aspects of his work as a general operative. In particular, he has difficultyPage 3 ⇓with reaching movements, such as those involved in cleaning bus shelters as part of hiswork.THE AGREED MEDICAL REPORTS12. The parties had exchanged and agreed three medical reports in advance of the hearing ofthe appeal. Two of these have been provided by the Plaintiff, the third by the Defendant.(i). Report of 6 December 201713. The Plaintiff had attended at the Accident and Emergency Department of the MaterMisericordiae University Hospital, Eccles Street, Dublin 7, on 13 November 2017. He wasexamined on that occasion by Dr Vinny Ramiah. Doctor Ramiah is a consultant inemergency medicine. Doctor Ramiah has since prepared a report dated 6 December2017. The Plaintiff’s complaints and clinical findings on examination are set out as follows(at page 3 of the report).“Present ComplaintsMr Doyle complains of intermittent right-sided neck and shoulder pain. This isworse with certain movements, especially rotation movements of his head. Hefinds that he has difficulty sleeping and lying on his right-hand side which causesneck and shoulder pain. He has also found that performing his work duties whichinvolves washing bus shelters causes him discomfort to the right neck andshoulder. Reaching, lifting and carrying heavy objects make his symptoms worse.He takes painkillers on an as-required basis in the form of NSAIDs and appliestopical NSAID gel which improves his symptoms. Overall his neck and shoulderpain is improving with physiotherapy and over time.Clinical Findings on Examination 13/11/2017On examination there was tenderness over the right trapezius, mainly involving theright suprascapular region. He had full range of motion in all directions of thecervical spine but his pain was provoked by lateral flexion to the left. The AC jointon the right was non-tender.Shoulder examination was normal with no evidence of rotator cuff tear orimpingement.”14. The report then sets out, at page 4, the treatment which Doctor Ramiah anticipates willbe required in the future.“Anticipated treatment required into the futureI’ve advised Mr Doyle to continue with his current regime of physiotherapy, in theform of his homecare exercise programme. He should still continue to use hisNSAIDs as required and topical therapy until his symptoms subside. He may alsobenefit from non-conventional therapies such as massage and acupuncture.”Page 4 ⇓15. The report concludes with the following general comments and observations (page 5).“General Comments and ObservationsMr. Doyle has suffered a WAD grade 1 following a rear-end road traffic collision on01/18/2017. His symptoms have improved with conservative measures. I expectthat with continued rehabilitation his symptoms should resolve without complicationwithin three- to six-months’ time.”16. The acronym “WAD” (above) stands for “whiplash associated disorder”.(ii). Report of 4 January 201817. A report has been prepared by Doctor Barry Teeling on behalf of the Defendant. Thisreport is dated 4 January 2018 and is based on an examination of the Plaintiff on thesame date. The report concludes as follows.“Opinion \ Prognosis:Michael Doyle a man prone to injuries was rear-ended in his van when two womenstepped out in front of his van. He had right shoulder and neck injury. Two visitsto the Rapid Access C, Smithfield and three physiotherapy sessions later he is backto normal. He missed no work. Examination of neck and shoulder was normal.This was a minor soft tissue injury that has resolved.”(iii). Report of 11 March 201918. Doctor Ramiah prepared a subsequent report dated 11 March 2019. This report wasbased on an examination of the Plaintiff which had been carried out on 4 March 2019. Itshould be noted that this report had been prepared after a subsequent accident which thePlaintiff had been involved in on 20 September 2018.19. The anticipated treatment is set out as follows (at page 4 and 5 of the report).“Anticipated treatment required into the futureI’ve advised that Mr Doyle undergo a period of intensive physiotherapy forrehabilitation of his acute left sided injuries, following his accident on 24/09/2018.He should continue taking NSAIDs on an as-required basis, but I’ve counselled himregarding long-term use and adverse effects of these medications. He shouldconsider topical NSAIDs and Paracetamol for painful symptoms.At this stage I would advise that he has a MRI of the right shoulder andsubsequently attend a shoulder specialist for assessment. I would recommendreferral to Mr. Darragh Hynes, Upper Limb Orthopaedic Specialist, Mater PrivateHospital.Page 5 ⇓He has underlying degenerative arthritis of his right AC joint. I suspect he has adegree of rotator cuff tendonitis/bursitis of the shoulder. He would benefit from asteroid injection of the right shoulder/AC joint under ultrasound guidance. I wouldadvise that he is referred to Mr. Eoin Kavanagh, Consultant Radiologist, MaterPrivate Hospital, Dublin 7 for this injection as a matter of urgency. I am happy formy reports to be used as a means of referral.”20. The report then concludes with the following general comments and observations (atpages 5 and 6).“General Comments and ObservationsMr. Doyle suffered what appeared to be a WAD grade 2 following a rear-end RTA onthe 01/08/2017. He developed delayed onset right neck/shoulder symptoms.His symptoms never really settled despite time and physiotherapy. X-ray of theright AC joint showed evidence of underlying degenerative arthritis of the joint. Itis likely that the acute soft tissue injury as a result of his initial injury precipitated aflare of underlying chronic osteoarthritis of the right shoulder and the AC joint(shoulder girdle).Mr. Doyle’s symptoms are made worse with his physical work as a bus sheltermaintenance worker. He takes painkillers when symptoms deteriorate.Symptoms and examination suggest underlying degenerative disease of the rightshoulder and AC joint.At this stage he would likely benefit from an ultrasound guided right shoulder andAC joint steroid injection. MRI assessment of the shoulder is advised forconfirmation of the suspected underlying diagnosis (Rotator cuff tendonitis/Subacromial bursitis).I’ve advised a specialist upper limb orthopaedic opinion is sought as describedabove and am happy for my reports to be used as a means of referral.”PREVIOUS ACCIDENTS21. The Plaintiff has had a series of previous accidents. In some instances, the personalinjuries complained of are similar to those the subject-matter of the present proceedings.In particular, the Plaintiff had instituted personal injuries proceedings arising out of anaccident on 14 December 2012. The particulars of personal injury are described asfollows in the Personal Injuries Summons.“The Plaintiff attended with his doctor suffering from pain in the right side of theneck and in his right shoulder. The pain interfered with his ability to sleep. Onexamination it was noted that the Plaintiff had tenderness in his cervical musclesand along the upper border of the trapezius muscles on the right hand side. Hewas diagnosed with a soft tissue injury of the neck and shoulder with muscularPage 6 ⇓strain. Analgesics were prescribed, both oral and topical. The Plaintiff was unableto take the prescribed analgesic medication and therefore suffered significantdiscomfort.Despite treatment the Plaintiff continued to suffer from ongoing symptoms. he hadpain and clicking in his left shoulder. On examination the Plaintiff’s Doctor foundcrepitus in the shoulder around the joint. This was consistent with a soft tissueinjury sustained by the Plaintiff in the accident the subject matter of proceedings.On subsequent examination it was noted that the Plaintiff had an audible andpalpable click on movement of his shoulders. He was diagnosed with mildsupraspinatus tendonitis. The Plaintiff had suffered from depression prior to theaccident and this condition was not assisted by the pain, discomfort, level ofdisability and longevity of the symptoms suffered as a result of the accident thesubject matter of proceedings. The Plaintiff was limited in the analgesia that hecould use owing to his rehabilitation programme.Although the Plaintiff’s condition has improved he continues to suffer fromdebilitating pain and discomfort as a result of the accident.His normal enjoyment of life has been affected by the injury. The prognosisremains guarded and the Plaintiff therefore reserves the right to adduce furtherparticulars of personal injury as an when the same become apparent prior to thehearing of this matter.”SUBSEQUENT ACCIDENT ON 20 SEPTEMBER 201822. The Plaintiff had been involved in a subsequent road traffic accident on 20 September2018, i.e. some thirteen months after the accident the subject-matter of theseproceedings. On this occasion, he had been a passenger in a car. He reports that the carin which he was travelling had been “rear ended” by another car. The Plaintiff attendedat a VHI Swiftcare Clinic some four days after that accident, and reported injuries to hisleft shoulder and lower back. The Plaintiff has since made a claim in respect of thissubsequent accident. This claim was settled, and the Plaintiff received a payment in theorder of €9,135.CROSS EXAMINATION OF PLAINTIFF23. The Plaintiff was cross-examined by counsel on behalf of the Defendant in respect of hisprevious medical history. Much of this cross-examination was conducted by reference todocumentation which had been made available to the Defendant by way of discovery.The purpose of this exercise seems to have been to suggest, first, that the Plaintiff hadfailed to disclose the fact that he had suffered injuries in earlier accidents to the medicalprofessionals; and, secondly, that the Plaintiff had been suffering from intermittent rightshoulder pain prior to the accident on 1 August 2017. In this latter connection, particularemphasis was laid on a report dated 20 July 2016 from the Department of OrthopaedicSurgery and National Spinal Injuries Unit, Mater Misericordiae University Hospital. Thisreport contains the following description of the Plaintiff’s medical complaints as of 5 May2016.Page 7 ⇓“He complains of intermittent right shoulder pain that is activity -dependent. It isaggravated by lifting his arm above shoulder level, especially if weighted, lying onhis right side and activities such as brushing his hair. It clears quickly when hestops the aggravating activity. He wakes at night if he lies on his right side. Acouple of times per week he develops paraesthesia at the fingertips of the lefthand; this generally occurs when sitting, for example reading the paper.Occasionally his whole arm feels dead in this position. His shoulder paincommenced 5 years ago following a road traffic accident in which a car reversedinto the front of his stationary vehicle. His symptoms have worsened in theinterim. He currently takes Nexium and Brufen.”24. The effectiveness of this cross-examination was, however, undermined by two things asfollows. First, the affidavit of discovery sworn by the Plaintiff is not in proper form. Inparticular, it fails to identify the individual documents. Instead, general headings areused which are of no assistance in identifying the individual documents, e.g. a largeswathe of documents is baldly described as “Medical Records from St James’s Hospital”.This failure to properly identify the documents had the consequence that neither counselnor the court were in a position to verify the date or author of any particular documentwith certainty. An example of the difficulties which this caused is discussed at paragraph27 et seq. below.25. Secondly, the precise status of the documentation was not explained to the court. TheSupreme Court in RAS Medical Ltd v. The Royal College of Surgeons in Ireland[2019] IESC 4; [2019] 2 I.L.R.M. 273 has held that it is inappropriate for parties to proceedingsto place documents before a judge without either the documents being proved in thenormal way or a clear agreement being reached as to the basis on which the documentsare being presented. See, in particular, paragraphs [6.14] and [6.15] of the judgment asfollows.“The purpose for making all of these general observations is to emphasise the needfor there to be considerable clarity achieved as to the basis on which anyagreement to depart from the rules of evidence has been made. Again, any lack ofclarity in this regard is only likely to lead to confusion and potential injustice. It is,quite frankly, inappropriate for either party to place documents before a judgewithout either the documents being proved in the normal way or a clear agreementbeing reached as to the basis on which the documents are being presented. Itmay, at one end of the spectrum, be the case that the documents are merely beingpresented on the basis that they will be properly proved in evidence but will have tobe disregarded entirely if not so proved. If the agreement between the partiesgoes beyond that, then there should be absolute clarity as to the precise basis onwhich the documents are being presented to the judge.Indeed, the starting point for clarity in any case in which documents are presentedto the judge is that the judge is informed as to the basis on which the documentsare being made available.”Page 8 ⇓26. It was not made clear to me at the hearing on 12 December 2019 as to whether bothparties agreed that the content of the discovered documents should be treated as beingtrue.27. The practical difficulties which the court faced in this regard can be illustrated by thefollowing three examples. The first example is provided by the report of 20 July 2016from the Mater referenced above. This report appears to indicate that the Plaintiff hadbeen suffering from intermittent pain in his right shoulder for a number of years inadvance of the accident of 1 August 2017. Had a proper evidential basis been laid, itmight have been open to the Defendant to argue that the symptoms currently complainedof by the Plaintiff are not referable to that accident, but rather relate to an underlyingcondition caused by the earlier accident in 2012.28. The difficulty, however, is that no medical evidence has been called to support thisproposition. The only witness who gave oral evidence before the High Court was Mr Doylehimself. No medical expert was called; instead, the parties were content to rely on thethree agreed medical reports identified at paragraph 12 above. None of these reportscanvassed the possibility that the symptoms complained of relate to an earlier accident.In the absence of an express agreement between the parties to the effect that the reportof 20 July 2016—which is not one of the three agreed medical reports—can be relied uponas proof of the contents thereof, it is not open to this court to draw any inference fromsame. Even if such an agreement had been reached, it would still be necessary toestablish that the symptoms complained of in May 2016 had not resolved prior to theaccident of 1 August 2017.29. The second example relates to the swelling said to have been suffered by the Plaintiff anumber of weeks after the accident on 1 August 2017. More specifically, it will berecalled that the Plaintiff had given direct evidence of swelling on his neck and shoulder,which he describes as being similar in size to a golf ball. Counsel for the Defendant hadput it to the Plaintiff in cross-examination that there was no documentation recording thisalleged swelling. This question was objected to by counsel on behalf of the Plaintiff, whoreferred the court to an undated document headed up “Clinical Examination”. Thisdocument contains a sketch of a torso, and a manuscript note which appears to read asfollows: “Right ACT pronounced and tender”. It was suggested that this document mightbe referring to the swelling alleged by the Plaintiff.30. It is impossible to identify with certainty the provenance of this document incircumstances where the affidavit of discovery sworn by the Plaintiff does not list theindividual documents. This document might be part of the medical notes of a visit to theEmergency Department of the Mater Misercordiae University Hospital on 14 September2017. The document is signed by a doctor, but their Medical Council registration numberhas been cut off in photocopying. It is simply not possible for the court to know from thisdocumentation whether it does, in fact, confirm that the swelling was indeed reported to amedical professional. The court can only proceed on the oral evidence of the Plaintiffwhich has not been contradicted.Page 9 ⇓31. A third example of the practical difficulties arising in respect of the discoverydocumentation relates to a medical report dated 30 December 2018 which had beenprepared by Dr Aidan O’Hora of Willow Park Medical Centre. This report provides detailsof an examination of the Plaintiff which, apparently, took place on 10 October 2018.Counsel for the Defendant relied on this document for the purposes of his cross-examination of the Plaintiff. Particular emphasis was placed on the following extract fromthe medical report.“Relevant Medical History (including previous and subsequent accidents)There is no history of prior injury or accident that the practice is aware of.”32. Counsel suggested that this extract was evidence of the Plaintiff having been asked aboutprevious injuries and accidents, and having failed to disclose his previous accidents(including, most relevantly, the accident on 1 August 2017) to Dr O’Hora. With respect,the extract is ambiguous, and it is open to the alternative interpretation that thestatement of “no history of prior injury” has been prepared by reference to the medicalpractice’s own records rather than by reference to a specific question put to the Plaintiff.33. Counsel asked the Plaintiff to explain why there was no reference in the medical report toany complaint in respect of pain in the right shoulder. In reply, the Plaintiff stated that hehad not, in fact, been examined by Dr Aidan O’Hora, but had seen a different doctor inthe practice, Dr Celine Shaw. The Plaintiff also gave evidence of having visited themedical practice more recently to seek attention in respect of his right shoulder, andstated that he was prescribed with difene on that occasion.34. In the absence of any clear explanation to the court as to the status of this medicalreport, it would not be safe for me to draw any inference from same. There is noadmissible evidence to contradict the direct evidence of the Plaintiff that he had not, infact, been examined by Dr Aidan O’Hora.35. If the parties to proceedings wish the court to treat discovery documentation as havingevidential value, then this must be explained clearly to the judge at the outset of thehearing. In particular, it must be explained whether the documents are simply beingadmitted without formal proof, or whether the agreement between the parties goesfurther, and the documents are to be treated as prima facie evidence of the content ofsame. It should also be explained to the judge as to how conflicts between the content ofthe documents and oral evidence are to be resolved. For example, if as happened in thiscase, a medical report contains an entry to the effect that there have been no prioraccidents to the knowledge of the author, is the court entitled to assume that this reflectsa (dishonest) answer on the part of the patient being examined.ASSESSMENT OF DAMAGES36. It seems to me that damages in this case should be assessed on the basis of the threeagreed medical reports described at paragraph 12 above. The fact that these reportsPage 10 ⇓have been agreed between the parties means that weight should be attached to same,rather than to the muddled discovery documentation.37. As appears from the most recent report, i.e. Dr Ramiah’s report dated 11 March 2019, thePlaintiff’s symptoms from the road traffic accident of 1 August 2017 never really settleddespite time and physiotherapy.38. Dr Ramiah has had the benefit of examining the Plaintiff more recently than Dr Teelingdid. Dr Teeling has not, apparently, seen the Plaintiff since 4 January 2018, i.e. almosttwo years prior to the hearing of the appeal before the High Court. If the Defendant hadwished to contradict the more recent findings of Dr Ramiah, then she should, at the veryleast, have sought an up-to-date report from Dr Teeling. Instead, the Defendant hasexpressly agreed the later medical report, and, accordingly, I rely on same for thepurposes of assessing damages.39. The evidence indicates that the whiplash injury is at the higher end of the “moderate”scale as per the Book of Quantum (2016), prepared by the Personal Injuries AssessmentBoard. Having regard to (i) the direct evidence of the Plaintiff, which has not beenimpeached on cross-examination; (ii) the agreed medical reports; and (iii) the Book ofQuantum, I assess general damages for pain and suffering in the sum of €25,000.CLAIM FOR AGGRAVATED DAMAGES40. The Plaintiff seeks an award of aggravated damages on the basis that the court shouldmark its disapproval of the manner in which the defence of the case was pleaded. Morespecifically, it is submitted that the plea that the Plaintiff was guilty of contributorynegligence in “deliberately causing” the road traffic accident has blackened the Plaintiff’sname. It is further submitted that the plea involved an imputation that the Plaintiff hadengaged in a criminal offence in setting up an accident notwithstanding the risk to life andlimb, and that this was done for the purposes of defrauding the Defendant and herinsurer.41. Counsel for the Plaintiff relies upon the judgment of the Supreme Court in Swaine v.Commissioners of Public Works [2003] IESC 30; [2003] 1 IR 521 (at 525) which, inturn, had cited with approval a passage from the judgment in Conway v. Irish NationalTeachers Organisation [1991] 2 I.R. 305 (at 317) which describes the jurisdiction toaward aggravated damages as follows.“2. Aggravated damages, being compensatory damages increased by reason of(a) the manner in which the wrong was committed, involving such elements asoppressiveness, arrogance or outrage, or(b) the conduct of the wrongdoer after the commission of the wrong, such as arefusal to apologise or to ameliorate the harm done or the making of threatsto repeat the wrong, or(c) conduct of the wrongdoer and/or his representatives in the defence of theclaim of the wronged plaintiff, up to and including the trial of the action.Page 11 ⇓Such a list of the circumstances which may aggravate compensatory damages untilthey can properly be classified as aggravated damages is not intended to be in anyway finite or complete. Furthermore, the circumstances which may properly forman aggravating feature in the measurement of compensatory damages must, inmany instances, be in part a recognition of the added hurt or insult to a plaintiffwho has been wronged, and in part also a recognition of the cavalier or outrageousconduct of the defendant.”42. I have concluded that this is not an appropriate case to make an award of aggravateddamages for the following reasons.43. First, in seeking to identify the type of circumstances in which it might be appropriate tomake an award of aggravated damages in personal injuries proceedings it is necessary tohave regard to the legislative framework. In particular, it is necessary to have regard tothe safeguards which have been provided for under the Civil Liability and Courts Act 2004(“the 2004 Act”). The 2004 Act introduced a requirement for the swearing of affidavits ofverification. Relevantly, where the defendant in a personal injuries action serves onanother party to the action any pleading containing assertions or allegations, thedefendant shall swear an affidavit verifying those assertions or allegations. Such anaffidavit shall include a statement by the deponent that he or she is aware that themaking of a statement by him or her in the affidavit that is false or misleading in anymaterial respect, and that he or she knows to be false or misleading, is an offence. The2004 Act also makes it a criminal offence for a person to give, or dishonestly cause to begiven, evidence in a personal injuries action that (a) is false or misleading in any materialrespect, and (b) he or she knows to be false or misleading.44. The creation of these criminal offences is indicative of a legislative policy as to how theconduct of personal injuries proceedings is to be policed. These statutory provisionsapply equally to a defendant as to a plaintiff. If it can be established that a defendant hasmade an assertion or allegation which is “false” or “misleading”, then the appropriateremedy is a criminal prosecution against that individual. It will not normally be necessaryor appropriate for the court to impose an additional sanction by way of making an awardof aggravated damages.45. Secondly, even allowing that a court may have jurisdiction to make an award ofaggravated damages in personal injuries proceedings solely by reference to the conductof the proceedings, the court would be required to consider the conduct of the defence inthe round. The complaint made by the Plaintiff in the present case, at its height, isconfined to the manner in which the case had been pleaded in the Personal InjuriesDefence. In deciding whether or not to make an award of aggravated damages, however,weight has to be attached to the overall conduct of the proceedings. In the present case,the allegation that the accident had been deliberately caused was not pursued at thehearing before the Circuit Court. It was not put to the Plaintiff in cross-examination. TheDefendant declined to stand over the allegation when she herself was under cross-Page 12 ⇓examination. Moreover, by the time the case came on for hearing on appeal before theHigh Court, the Defendant had conceded liability.46. Counsel on behalf of the Plaintiff has made the point that the Defendant has not sought toamend her pleadings so as to remove the allegation. It is further submitted that thecontinued existence of this plea blackens the Plaintiff’s good name, and that, in a sense,the Defendant and her insurer are benefiting from the privilege attaching to legalproceedings under the Defamation Act 2009.47. With respect, this argument may prove too much. The privilege provided for under theDefamation Act 2009 is intended to protect the public interest in the conduct of litigationby ensuring that parties are not inhibited in either prosecuting or defending claims. Thisis counterbalanced by other legislative provisions—such as, relevantly, those under theCivil Liability and Courts Act 2004—which make it a criminal offence to give false ormisleading evidence. There would need to be very compelling reasons before a courtwould intervene to supplement this careful statutory regime by relying on its jurisdictionto award aggravated damages in an attempt to defend the good name of parties, thussidestepping the relevant provisions of the Defamation Act 2009.48. Thirdly, reliance on the jurisdiction to award aggravated damages to sanction litigationmisconduct would give rise to an asymmetry as between plaintiffs and defendants. Morespecifically, the measure could only be used as against a defendant. This is because themaking of an award of aggravated damages is parasitic on a substantive award ofdamages. Save in the case of a counterclaim, there will not normally be any basis uponwhich to make any award of damages against a plaintiff in personal injuries proceedings,still less an award of aggravated damages. Such a one-way measure is of little practicalbenefit.49. Finally, the more usual measure taken by a court which disapproves of the manner inwhich litigation has been conducted is to address same by an appropriate costs order.For example, a party who has succeeded in the substance of its case may nevertheless berefused an order for costs in its favour by reference to the conduct of the litigation. It isalso open to a court, in principle, to adjust the basis on which costs are to be measured.50. The default position is that costs are measured on what is known as a “party and party”basis. On this basis, the costs are measured objectively, and the costs allowed may beless than those actually incurred. For example, a party may have chosen to retain bothsenior and junior counsel for a case, but would only be allowed to recover the costs of oneof the barristers from the other side if the Legal Costs Adjudicator were to decide that ithad not been necessary or proper to retain more than one counsel. That party wouldhave to pay the costs of the second barrister itself.51. The courts have, however, traditionally had a discretion to award costs on a differentbasis, namely, a “solicitor and client” basis. On this basis, the party whose costs arebeing measured will be allowed to recover all costs except in so far as they are of an“unreasonable amount” or have been “unreasonably incurred”. An order on a “solicitorPage 13 ⇓and client” basis comes closer to providing a full indemnity in respect of the costs actuallyincurred than does an order on a “party and party” basis.52. As explained in the judgment of the High Court (Barrett J.) in Dunnes Stores v. An BordPleanála [2016] IEHC 697, which, in turn, relies on the judgment of the High Court (KellyJ.) in Geaney v. Elan Corporation plc [2005] IEHC 111, costs can be awarded on a“solicitor and client” basis where the court wishes to mark its disapproval of the conductof the litigation by a party.53. The regime governing the assessment of costs has since been modified under the LegalServices Regulation Act 2015 and under an amended version of Order 99. Order 99, rule10(3) (as amended by the Rules of the Superior Courts (Costs) 2019 Order) now providesthat a court may, in any case in which it thinks fit to do so, order or direct that costs shallbe adjudicated on a “legal practitioner and client” basis. This appears to mirror, to someextent, the previous concept of “solicitor and client” costs.54. It seems to me that, in most instances, an award of costs on the “legal practitioner andclient” basis would be sufficient sanction for any litigation misconduct. Reliance on thejurisdiction to award aggravated damages on the basis of litigation misconduct aloneshould be reserved to exceptional cases.CONCLUSION ON CLAIM FOR AGGRAVATED DAMAGES55. In conclusion, therefore, this is not an appropriate case in which to make an award ofaggravated damages. Whereas it is most regrettable that the Defendant and her insurerchose to make the entirely unsubstantiated allegation that the Plaintiff had deliberatelycaused the accident, much of the sting of same has been removed by the fact that theplea was not pursued at the hearing before the Circuit Court and, ultimately, liability wasconceded in its entirety before the High Court. I will hear further from the parties on theseparate question as to whether an award of costs should be made against the Defendanton a “legal practitioner and client” basis pursuant to Order 99, rule 10(3) (as amended).PROPOSED ORDER56. The appeal against the decision of the Circuit Court dismissing the Plaintiff’s claim fordamages is allowed. I will make an order in lieu directing that the Defendant do pay thePlaintiff a sum of €25,000 by way of general damages for pain and suffering. Subject toconfirmation from counsel that the figure is correct, there will be an additional sum byway of special damages of €397.57. I will hear further from the parties on the question of whether an award of costs shouldbe made against the Defendant on a “legal practitioner and client” basis pursuant toOrder 99, rule 10(3) (as amended).58. The Plaintiff will not be entitled to recover any costs in respect of the making of discoveryof documents in circumstances where, as discussed at paragraph 24 et seq., the affidavitof discovery failed to identify the individual documents.AppearancesPage 14 ⇓Barney Quirke, SC and Ivan Daly for the Plaintiff instructed by Ferrys SolicitorsMurray Johnson, SC and Noel Cosgrove for the Defendant instructed by BLM Solicitor
Result: Application for aggravated damages refused. General damages of 25,000 awarded for personal injuries.
Commissioners for Public Works v. Swaine
[2003] IESC 30 (6 May 2003)
JUDGMENT of the Court delivered the 6th day of May 2003, by Keane C.J.
1. The plaintiff in this case was employed by the defendants as a plumber. From about the years 1981 – 1982, he was required to work in the Leinster House complex and, to a lesser extent, in the Department of Industry and Commerce, as it was then. During the course of his work, he was exposed over a lengthy period of time to very large quantities of asbestos dust. This had no immediate consequence for him in terms of his physical health: it did, however, expose him to the risk, described by the physician whom he attended, Professor Luke Clancy, as “very remote”, of contracting a disease called mesothelioma. This disease, although relatively uncommon, is lethal when contracted. As a result of becoming aware of this risk, the plaintiff was suffering at the time of the trial in the High Court from what was described as “a chronic reactive anxiety neurosis”.
2. The learned trial judge (O’Neill J) found that the condition in question had been caused by the negligence of the defendants in exposing the plaintiff to the risk of contracting mesothelioma. He awarded the plaintiff the sum of £45,000 by way of general damages, divided as to £15,000 in respect of pain and suffering to date and £30,000 in respect of pain and suffering in the future. In addition, he awarded the plaintiff the sum of £15,000 by way of aggravated damages. The total of damages awarded was, accordingly, £60,000.
3. The defendants served a notice of appeal on the grounds, inter alia, that the plaintiff was not entitled to recover any damages in respect of any physical injury, since he had suffered none, or in respect of the reactive anxiety neurosis which he had been found to be suffering from at the trial and that he was not entitled to recover any sum by way of aggravated damages.
4. The appeal in this case was heard at the same time as four other appeals in which the plaintiffs were Stephen Fletcher, Raymond Brophy, Patrick Sammon and David Shorthall and the present defendants were also the defendants. The plaintiffs in those cases had also been at all material times in the employment of the defendants. All five cases arose out of what was admitted to be the failure of the defendants as employers to take precautions for the safety, health and welfare of the plaintiffs as their employees. In each of the other cases, as was also conceded on behalf of the defendants, the plaintiffs were exposed to significant quantities of asbestos dust in the course of their employment and, as a further consequence to the risk of contracting mesothelioma. There was also evidence in those cases from psychiatrists that the plaintiffs, as a result of their having been informed of that risk, suffered from a recognisable psychiatric disorder. In each case, the trial judge found that the defendants were liable to pay damages in respect of the psychiatric injury in question.
5. On the 13th February last, this court gave judgment in one of these cases, Stephen Fletcher –v- The Commissioners for Public Works in Ireland. The court was unanimously of the view that the appeal should be allowed and an order dismissing the plaintiff’s claim substituted for an order of the High Court. The court was satisfied that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by employers, where the risk is characterised by their medical advisors as very remote. Since, however, the course which the proceedings took in each case in the High Court was not identical, so far as the admissions made on behalf of the defendants and the issues which fell to be determined were concerned, it seemed more convenient that the court should give judgment on the issues which were the subject of argument in the court in that case only, leaving for further consideration the effect of its judgment on the remaining four appeals.
6. This case was, accordingly, listed for mention on March 25th last along with the other three cases to which I have referred. It was clear that in all four cases the defendants had, either expressly or by implication, withdrawn any plea in the defence denying liability to pay damages and that the cases proceeded as assessments of damages only. They fell, accordingly into a different category from the case of Fletcher –v- Commissioners of Public Works in Ireland, where the denial of liability to pay any damages had never been withdrawn and the learned trial judge heard arguments as to the liability, if any, of the defendants to pay any damages in a case such as the present, notwithstanding their admitted failure to take appropriate precautions for the health and welfare of the employee concerned. Accordingly, with one qualification, the appeals in the remaining cases were dismissed and the order of the High Court affirmed. The qualification arises in the present case where, although the defendants did admit their liability to pay damages, the issue as to whether they were liable to pay aggravated damages was fully contested. The court has already heard arguments in this appeal as to whether the learned trial judge was correct in point of law in awarding aggravated damages to the plaintiff in the circumstances of this case and today gives its judgment in respect of that issue.
7. Not only were the defendants seriously remiss in this case in taking elementary precautions for the health, welfare and safety of their employees, including the plaintiff: they have not even the excuse, if excuse it would have been, of not being aware at the time of the dangers associated with asbestos dust for persons such as the plaintiff who were compelled to work in areas where it was impossible to avoid inhaling the potentially damaging fibres. As the evidence before the trial judge indicated, they were fully aware of those risks and when they employed contractors to deal with the lagging which was giving rise to the problem, their workers, unlike the plaintiff and his fellow employees, were given protective clothing and headgear. Nor was the plaintiff given any warning whatever of the dangers he was being exposed to from the asbestos dust. I do not think it is possible to dissent from the trial judge’s finding that it was “negligence of the grossest kind”.
8. However, whether that entitled the trial judge to award an additional sum of £15,000 by way of aggravated damages is another matter entirely. It was agreed in this court that the generally accepted statement of the law as to the circumstances in which a court can award aggravated damages is to be found in the judgment of Finlay CJ in Conway –v- Irish National Teachers Organisation [1991] 2IR 305. He said:-
“Aggravated damages [are] 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 be properly be classified as aggravated damages is not intended to be in any way to be 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”.
9. The learned Chief Justice goes on in that part of his judgment to explain the circumstances in which punitive or exemplary damages can be awarded and his reasons for concluding that there is no distinction between punitive and exemplary damages. Since the trial judge in the present case expressly rejected an invitation to award punitive or exemplary damages, we are solely concerned with whether he was correct in holding the plaintiff entitled to aggravated damages.
10. Although the learned Chief Justice in the passage which I have quoted emphasises that the list of the circumstances in which aggravated damages may be awarded is not intended to be exhaustive, those circumstances which he has identified do not typically arise in cases of negligence and, if they do, are not a ground for increasing the amount of compensatory damages.
11. Thus, to take the first category – the manner in which the wrong was committed – the consequences for the victim of the negligence will often have little or no relation to the degree of moral culpability associated with the negligent conduct. A person driving in a reckless manner or under the influence of drink or drugs may inflict only minimal injuries on a person with whom he is in collision. At the other end of the scale, a sober and conscientious driver may suffer from a momentary loss of concentration which may result in the most catastrophic injuries to the plaintiff. In the first case, the driver’s conduct could well be stigmatised as arrogant, outrageous or – though it would be an unusual adjective to choose – oppressive. No such criticism could be directed at the conduct of the person in the second category. It has never been suggested that the moral culpability arising in the first category should be reflected by an award of aggravated damages.
12. The second category of circumstances – the conduct of the wrongdoer after the commission of the wrong – also seems unlikely to arise in claims for negligence. The reason people involved in a road traffic accident do not apologise, even if they consider themselves to have been in the wrong, is in many cases because, where the impact has been serious, they are too shocked by the occurrence to think of expressing regret. If they subsequently fail to express their regret, it is because the conduct of the proceedings has passed out of their hands into those of an insurance company or, in the plaintiff’s case, his solicitor. Nor can one readily envisage cases of negligence in which the person would threaten to repeat the negligent conduct.
13. The same considerations apply to the third category, i.e., the conduct of the wrongdoer in the defence of the claim of the wronged plaintiff: most parties leave the subsequent conduct of the action entirely to their solicitors or their insurers.
14. The cases in which one would expect to find awards of aggravated damages are those in which the damages are traditionally described as being “at large” and in which it can be said that the intention of the defendant to commit the wrong is frequently a precondition to liability. Obvious examples are the torts of defamation and malicious prosecution. Indeed, the learned authors of the article on damages in Halsbury’s Laws of England, Fourth Edition. Vol.12 (1) para 1114 state unequivocally:
“Such damages [aggravated damages] cannot be awarded for the tort of negligence”
and two authorities are cited for that proposition.
15. In Kralj –v- McGrath [1986] 1 All ER 54, Woolf J (as he then was) said at p.61:
“It is my view that it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence, the concept of aggravated damages. If it were to apply in this situation of a doctor not treating his patient in accordance with his duty, whether under contract or in tort, then I would consider that it must apply in other situations where a person is under a duty to exercise care. It would be difficult to see why it could not even extend to cases where damages are brought for personal injuries in respect of driving. If the principle is right, a higher award of damages would be appropriate in a case of reckless driving which caused injury than would be appropriate in cases where careless driving caused identical damages. Such a result seems to be wholly inconsistent with the general approach to damages in this area, which is to compensate the plaintiff for the loss that she has actually suffered, so far as it is possible to do so, by the award of monetary compensation and not to treat those damages as being a matter which reflects the degree of negligence or breach of duty of the defendant.”
16. While it is not necessary for the purpose of this judgment to go into the facts of that case, which was an action for negligence against a consultant obstetrician, it is sufficient to say that the expert evidence was that the treatment afforded to the plaintiff was “horrific” and “completely unacceptable”. Those are epithets which are not often found in cases of medical negligence and the trial judge did not dissent from the description by counsel for the plaintiff of the defendant’s conduct as “outrageous”.
17. The second authority cited is A.B. –v- Southwest Water Services Limited [1993] QB 507. That was a case in which the plaintiffs suffered ill effects as a result of drinking contaminated water from the defendant water undertaker’s drinking water system. The plaintiffs claimed exemplary and/or aggravated damages, alleging that the defendants had acted in an arrogant and high handed manner in ignoring complaints made to their customers and had also deliberately misled them by telling their customers that the water was safe to use and drink when they knew that statement was unfounded. In the Court of Appeal, it was held that the plaintiffs could not recover exemplary damages on the facts. The head note continues:
“Furthermore, the plaintiffs could not claim aggravated damages for their anger and indignation at the defendants’ high handed conduct because the plaintiffs could only claim compensatory damages, and anger and indignation were not proper subjects for compensatory damages. Accordingly, the claim for aggravated damages would also be struck out … dictum of Woolf J in Kralj –v- McGrath applied.”
18. In the course of his judgment in that case, Sir Thomas Bingham MR, (as he then was) said
“The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants’ breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendant’s conduct, the ordinary measure of damages will compensate. The question is whether in addition to that full compensatory measure; the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages. This is claimed in para. 27 on the basis that the plaintiff’s feelings of indignation were aroused by the defendant’s high handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendants conduct. Defamation cases in which a plaintiff’s damages are increased by the defendant’s conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff’s feelings and self esteem is an important part of the damage for which compensation is awarded.”
19. There is another English decision, which is referred to in the judgment of the learned trial judge in this case, of Appleton and Others –v- Garrett [1996] BIQR P1 which is not at first sight easy to reconcile with the decisions to which I have just referred. In that case, it was found that a dentist had carried out treatment which was, to his knowledge, unnecessary, that he had deliberately concealed the truth from his patients so as to ensure that they did not withdraw their consent and that he had done all of this for financial gain. The plaintiff was awarded aggravated damages, but it should be noted that the action was framed in trespass and that would seem to be the explanation why aggravated damages were thought to be appropriate.
20. Appleton and Others –v- Garrett was referred to in the judgment of this court in Cooper –v- O’Connell (unreported; judgment delivered 5th June 1997). In the course of my judgment in that case which was also against a dentist, but one framed in negligence only, I distinguished Appleton and Others –v- Garrett, on the ground that the conduct of the defendant in Cooper –v- O’Connell, while undoubtedly amounting to negligence of a serious degree, could not be equated to the conduct of the defendant in Appleton and Others –v- Garrett. There is no reference in the judgment to the other English authorities to which I have referred and I think it is reasonable to assume that they were not cited to the court.
21. Those authorities were not cited in the present case either and, in those circumstances, it would not be appropriate for the court, in my view, to hold that there are no circumstances in which, in actions for negligence or nuisance, aggravated damages may be awarded. That question can be left for a case in which it is fully argued. In the present case, however, I am satisfied that, while the defendants were unquestionably guilty of what the trial judge described as “the grossest negligence”, that factor, of itself, is not sufficient to entitle the plaintiff to aggravated damages in the absence of circumstances such as those referred to in the judgment of Finlay CJ in Conway –v- Irish National Teachers Organisation or factors of a similar nature.
22. I would allow the appeal of the defendants in respect of the award of aggravated damages and substitute therefor an order awarding the plaintiff damages of £45,000.
Crofter Properties Ltd v Genport
[2005] I.E.S.C. 20, April 12, 2005Judgment delivered on the 12th day of April, 2005 by Denham J.
1. This is an appeal by Crofter Properties Limited, the plaintiff/appellant, hereinafter referred to as ‘the plaintiff’, from the judgment and order of the High Court made on 10th day of September, 2002 and 8th day of November, 2002, which was perfected on the 27th day of January, 2004, to set aside the following parts of the High Court order:
(a) The award of IR£50,000 for general damages to the defendant.
(b) The award of IR£250,000 punitive or exemplary damages to the defendant;
(c) That the defendant be entitled to recoup interest on the sum of IR£300,000 at 8% per annum from the 23rd day of April 1996 to the date of the said judgment and order from the plaintiff and to set off same against the sums due by the defendant to the plaintiff;
(d) The refusal of the plaintiff’s application for the costs of its claim against the defendant.
Genport Limited, the defendant/respondent, is referred to hereafter as ‘the defendant’.
2. There is a history of litigation between these parties over the last two decades. While it is not necessary to set out the previous lengthy litigation between the parties it is appropriate to refer to the history insofar as to state that by lease dated 12th May 1981 the plaintiff demised premises known as Sachs Hotel for a term of 21 years from the 1st August, 1980 to the defendant. These proceedings commenced as an application for ejectment. The defendant delivered a counterclaim with its defence claiming damages and a set off. This judgment relates solely to the four grounds raised on this appeal by the plaintiff from the previously stated High Court judgment and orders.
3. The case was remitted by the Supreme Court to the High Court to assess damages, to determine the defendant’s right to set off and its right to relief against forfeiture. On the 10th September, 2002 the High Court (McCracken J.) delivered judgment. I shall consider each of the issues raised on this appeal separately. As indicated by counsel for the plaintiff, however, the primary grounds of appeal relate to the sums awarded in damages.
False Information
4. The defendant’s claim for damages for defamation arises from a series of telephone calls. False information was received from an English Police Force who had received information from an anonymous woman on the telephone. The essence of the false information was that both Mr. Philip Smyth and his brother Chief Superintendent Paul Smyth were actively assisting the I.R.A. in laundering drug money through Sachs Hotel. Caroline Devine denied making the phone calls. However, on 23rd April, 2002 the High Court held that the telephone calls had been made by Caroline Devine, who was a secretary to, and director of, the plaintiff, and who worked with Hugh Tunney, the principle shareholder of the plaintiff. On appeal the Supreme Court held that these telephone calls had been made on behalf of and for the benefit of the plaintiff. Further, that while the defendant was not mentioned by name, the Supreme Court held that the words be deemed to refer to the defendant.
General Damages
5. The High Court held, on the issue of general damages, as follows:
“There is no express evidence of actual loss suffered by the defendant as a result of the allegations in the telephone calls made by Caroline Devine. However, there is certainly general evidence that the morale of the staff in Sachs Hotel was affected, and also general evidence that members of the Gardaí Síochána were frequent customers of the hotel and may have been affected. It must be remembered that the defendant is a company, and a company of itself is not capable of having feelings which can be injured by false allegations. However, a company does have a reputation, and that reputation can be injured, and I believe I am certainly entitled to infer in the circumstances of this case that there probably was some injury to the reputation of the company, and some loss of efficiency of its staff by reason of these allegations. However, I fully accept the arguments on behalf of the plaintiff that this is not a comparable situation to, for example De Rossa v Independent Newspapers [1999] 4 IR 432, where similar very serious allegations of criminal offences and indeed of acts against the State were made in a Sunday newspaper. The publication in this case was to members of the South Eastern Regional Crime Squad in the United Kingdom, but with the clear intention, and knowledge, that the allegations would be repeated by that authority to the Garda authorities in this country, and I think with the equally clear intention that they would be acted on by the Garda authorities.”
Having considered the judgment of the Supreme Court the learned High Court Judge held that on those findings it was the plaintiff’s intention to damage the defendant in the hotel trade. He held that the plaintiff was entitled to substantial general damages based on the likelihood of loss of various kinds, including reputation, and he assessed general damages at IR£50,000.
6. Counsel on behalf of the plaintiff, Mr. Eoin McGonigal S.C., submitted that the award of general damages was excessive. He submitted that: (i) Genport Limited was not referred to in the information; (ii) that there was no evidence at all as to any damage suffered by the plaintiff, and, (iii) that the publication was to a very limited class of person.
7. The law provides that the plaintiff is entitled to an award of general damages such as will fairly and reasonably compensate the plaintiff for the wrong suffered: De Rossa v Independent Newspapers [1994] 4 I.R. 432 at 463; John v MGN Limited [1997] QB 586 at 607; Barrett v Independent Newspapers Limited [1986] I.R. 13 at 23. On this aspect of the appeal the plaintiff has raised three specific issues and I will consider each separately.
8. The first issue raised in this ground of appeal has been decided already by this Court: [2002] 4 I.R. 73, where at p. 91 Murray J. (as he then was) stated:
“The High Court Judge appears to have attached importance to the fact that only one express reference to the defendant by name is to be found in one allegation as recorded by the English police. It must be noted that this reference to the defendant by name is contained in a summary of what had been communicated to the English police in more than one phone call. However, I consider this to be significant evidence of an express attempt to damage the reputation of the defendant.”
I am satisfied that the plaintiff may not revisit this as a substantial issue.
In reaching this decision I bear in mind that there was specific reference to Sachs Hotel (albeit that it was misspelt.). A relevant reference was in the document, dated 26th October, 1992, to Detective Chief Superintendent from Assistant Detective Inspector Stephen Condon, which relates to confidential information. In the report it is stated, inter alia,
“[-] allegedly is part of a money laundering operation on behalf of the I.R.A. The source states that a lot of funds are ‘cleansed’ through an Irish company called PRINCETON LIMITED. This company apparently owns hotels and clubs in Dublin including Saks [sic] Hotel and the Hippodrome.
One of the directors of PRINCETON is called Philip SMITH who is allegedly known to _____________. Johnston. … His brother and co-director is Paul SMITH. Paul SMITH is allegedly a member of the GARDA and until recently the Superintendent in charge of Personnel at Phoenix Park. He has recently been promoted to Chief Superintendent and posted to Portleish [sic] …”
In reaching the decision that the plaintiff may not revisit this issue I bear in mind the facts as found by the High Court and this Court and the relevant law. The relevant test is set out in Gatley on Libel and Slander, (8th Ed., London 1998) p. 161-163, which was cited to the High Court and which I adopt as the correct approach:
“The test is whether the plaintiff may reasonably be understood to be referred to by the words. … ‘The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstance or all the relevant facts…’
As a consequence of the earlier decision of this Court, I am satisfied that the absence of specific references to the plaintiff is not a matter to nullify the award of general damages. However, I do consider this a factor in the assessment of the damages.
9. As to the lack of evidence of actual damage suffered, this is not fatal to the claim for general damages. The learned trial judge identified negative effects, as quoted above. I am satisfied that the learned trial judge was entitled to infer, for example, a negative impact on the trade of the company from the facts so found, and an injury to the reputation of the company.
10. The third issue on this ground of appeal was the submission on behalf of the plaintiff that publication was only to a very limited class of persons and that damages should be reduced accordingly. While the publication was limited, i.e. in contrast to publication by a newspaper, it was published to an important group – police officers. Further, it could be envisaged, and it did happen, that this information would then proceed to other police forces, including to members of the Garda Síochána. The consequences of publication of such false information to such a group would be serious and disproportionate to the number of people to whom it was published. Indeed, a significant part of the information given to the Garda Síochána was investigated by them and found to be without foundation. I am satisfied that the fact that the publication was to this limited number of people is not a ground to reduce the award of general damages given the influential people to whom it was published and the fact that the publication was made with a view to damaging the defendant.
11. In considering the award of IR£50,000 for general damages, the analysis must take place in the context of an appellate court. While in most cases of defamation the award is made by a jury and an appellate court would be slow to intervene, that jurisprudence remains relevant in a case, such as this, where a judge has tried extensively relevant matters between the parties, has heard the evidence, and has made the award. An appeal court should intervene only with diffidence. In all the circumstance of this case for the reasons stated I am not satisfied that the plaintiff has raised grounds upon which an appeal court should intervene in the award of general damages. Consequently, I would dismiss this ground of appeal.
Exemplary or Punitive Damages
12. The High Court
The High Court held that the telephone calls were made maliciously, and, referring to the decision of this Court, with the intention of causing damage; that the behaviour of Caroline Devine, and of the plaintiff, was quite beyond the bounds of normal civilised behaviour and far outside any accepted commercial relationships. Further, the learned trial judge held that it was calculated to damage the defendant unlawfully, and, through unlawful means, to gain a benefit for the plaintiff. The High Court inferred that the allegations were made to police authorities in the United Kingdom rather than Ireland because giving false and misleading information to a police authority is a criminal offence. The High Court had no doubt that Caroline Devine, and possibly the plaintiff, committed a criminal offence in the United Kingdom, which is not punishable in this jurisdiction. However, the High Court made it clear that it was not holding that the plaintiff or Caroline Devine committed no criminal offence in Ireland.
The High Court reviewed the legal authorities and held:
“In the present case the plaintiff did concoct or attempt to concoct a malicious prosecution against the defendant and did attempt to pervert the course of justice. Furthermore, it did so for the purpose of its own commercial advantage and in an attempt to prevent or restrict the defendants rights under the landlord and tenants legislation.”
13. The High Court held that the intention of “punitive” or “exemplary” damages is either to punish or make an example of the guilty party, and that if the conduct of the guilty party is such as requires them to be punished or made an example of, then the damages should be awarded on that basis and without regard to the possibility of a windfall for the innocent party. A further factor taken into consideration in assessing exemplary damages was that Caroline Devine, who made the telephone calls, gave false evidence on oath. The learned trial judge held also that he was entitled to have some regard to the financial position of the parties. He stated:
“I think I also must have some regard to the guidelines laid down by the Supreme Court in regard to general damages for defamation, as I think it would be wrong that the court would award a higher figure in exemplary damages than it would ever award for general damages. However, this is an extremely bad case and is one in which there must be some very substantial penalty imposed on the plaintiff. I will propose to assess exemplary damages of IR£250,000.”
Submissions
14. While counsel on behalf of the plaintiff made submissions as to the amount of the award of exemplary damage it was not argued (and correctly so in my view) that exemplary damages did not flow from the facts. Rather, counsel submitted that the sum of IR£250,000 was excessive, and, taken with the figure for general damages, when considering the totality, the figure of IR£300,000 was excessive. Counsel referred to the sums awarded in De Rossa v. Independent Newspapers [1999] 4 IR 432, McIntyre v Lewis [1991] 1 IR 121, and others. Counsel for the defendant submitted that there had been an express finding by this Court that the allegations were calculated to damage the defendant. It was submitted that it was a coldly calculated defamation, with intent to damage. It was submitted that there was blatant perjury upon which the plaintiff never responded or explained, and that the Court should not intervene in the award.
Appellate Jurisdiction
15. An appellate court is slow to intervene with an award by a jury in a defamation cases. However, having applied carefully the appropriate test, the Court has jurisdiction to review and intervene. In this case, because of the circumstances, the claim for damages for defamation came on for hearing before a judge sitting without a jury. The learned trial judge had extensive knowledge of the parties in this case, from both the litigation in this case and from previous litigation. In view of the circumstances the trial judge was in a good position to evaluate the case. Consequently, while the award of the High Court in such circumstances is subject to review, I am satisfied that an appeal court should be slow to interfere and should apply , by analogy, the jurisprudence applicable when the decision has been made by a jury.
The Law
16. The law as to the level of the award of exemplary damage was addressed by Stephenson LJ in Riches and Ors. v Newsgroup Newspapers Limited [1986] 1Q.B. 256 where at p. 269 to 270 he stated:
“… the relevant law is concisely, correctly and comprehensively stated better than I could hope to state it on one page in the current edition of Duncan and Neill on Defamation, 2nd Ed. (1983), paragraph 18.27, p.136:
“… (c) if the case is one where exemplary damage can be awarded the court or jury should consider whether the sum which it proposes to award by way of compensatory damages is sufficient not only for the purpose of compensating the plaintiff but also of the purpose of punishing the defendant. It is only if the sum proposed by way of compensatory damages (which may include an element of aggravated damages) is insufficient that the court or jury should add to it enough ‘to bring it up to a sum sufficient as punishment’ … (f) A jury should be warned for the danger of an excessive award. (g) The means of the parties, through irrelevant to the issue of compensatory damages, can be taken into account in awarding exemplary damages.”
The law in relation to exemplary damages was addressed recently in O’Brien v Mirror Group Newspapers Ltd. [2001] 1 I.R. 1 at p. 22:
“As was made clear by the House of Lords subsequently in Broome v. Cassell & Co [1972] AC 1027, a plaintiff in an action for defamation who established that the defendant has published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305, the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway v. Irish National Teachers Organisation, a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.”
17. I adopt and apply the law as stated above. It is clear that on the findings of fact of the High Court, and the Supreme Court on the previous appeal, that this is a case where exemplary damages are appropriate. The only issues, therefore, for determination are whether there should be an intervention in the decision of the High Court as to the level of the award, and, if so, what is the appropriate award.
18. As stated previously, I am satisfied that there should be no intervention in the award of IR£50,000 for general damages, and thus the issue for determination is the sum of IR£250,000 exemplary damages. This is a very serious defamation and on the facts it is appropriate that there be an award of exemplary damages. The assessment of the award of exemplary damages should be made with the award of IR£50,000 also in mind, as the totality of the award of damages should be proportionate to the circumstances. Other relevant factors include: (i) the fact that the defendant is a corporation, not a human person; (ii) the nature of the publication and the extent of the publication; (iii) the absence of express evidence of actual loss suffered by the defendant; (iv) the conduct on behalf of the plaintiff which, as the learned High Court judge held, was quite beyond the bounds of normal civilised behaviour and quite outside accepted commercial relationships to gain benefit for the plaintiff. Such an award should not be excessive but should be sufficient to punish the behaviour on behalf of the plaintiff to intentionally publish defamatory matter of the defendant. Given the jurisprudence on the level of awards by this Court I am satisfied that the sum of IR£250,000 is excessive. In arriving at this decision I have considered especially De Rossa v Independent Newspapers [1999] I.R. 432; McDonagh v News Group Newspapers Ltd (Unreported, Supreme Court, 23rd November, 1993); Barrett v Independent Newspapers [1986] I.R. 13. I am satisfied in all the circumstances, that the award is so disproportionate to the injury suffered and the wrong done that no reasonable court would have made such an award.
In these circumstances I next determine what is a fair and reasonable sum. Considering all the facts and circumstances of the case, in the context of the jurisprudence on the awards of damages, I consider that the appropriate level of exemplary damages is IR£100,000. Viewing this sum together with the sum of IR£50,000 for general damages, I consider that the total of IR£150,000 is a just, reasonable and proportionate sum. Accordingly, I would allow the appeal of the plaintiff on this ground and substitute for an order of IR£250,000 exemplary damages an order for IR£100,000 damages. This means that the order would be for an award of IR£50,000 general damages and IR£100,000 exemplary damages.
Recoupment of Interest
19. The High Court held:
“… I have granted a stay over the years on a judgment for the agreed sum due to the plaintiff of IR£588,605.41 subject to the defendant paying interest on that sum. As I am now finding that the correct sum due is IR£288,605.41, the defendant has been paying interest on IR£300,000 from 23rd April 1996 to date. As that IR£300,000 was not due, the interest payments should only have been calculated on the balance of IR£288,605.41, and the defendant should be given credit for overpayment of interest. The amount due by the defendant to the plaintiff will, therefore, be the sum of IR£288,605.41 less the overpayment of interest.”
Counsel submitted that this decision of the learned trial judge came as a surprise to the plaintiff as the issue had not been the subject of legal argument and that the sum is significant (on the award of IR£300,000 by the High Court being IR£144,000). It was submitted that the High Court did not have jurisdiction to make such order.
This was not the most significant ground of appeal pressed by the plaintiff. It related back to monies ordered to be paid by the High Court at an interlocutory stage of the proceedings between the parties and an order on the final hearing in the High Court. I am satisfied that the High Court had jurisdiction to make such an order in light of the findings at the trial of the action. The High Court was entitled to make such an order, bearing in mind that the interlocutory order was to retain the status quo. In light of the findings at the trial, the High Court held that the monies paid on the interlocutory order were excessive in light of the final order and may be adjusted accordingly. I am satisfied that the High Court had jurisdiction to make such an order.
However, given the success of the plaintiff on this appeal in relation to the award of exemplary damages, the relevant sum will now be different. Thus, for the sum of IR£300,000 should be replaced the figure of IR£150,000. Traversing the words of the High Court, with the new figure, the finding would be:
“… I have granted a stay over the years on a judgment for the agreed sum due to the plaintiff of IR£588.605.41 subject to the defendant paying interest on that sum. As I am now finding that the correct sum due is [IR£438,605.41], the defendant has been paying interest on [IR£150,000] from 23rd April 1996 to date. As that [IR£150,000] was not due, the interest payments should only have been calculated on the balance of [IR£438,605.41] and the defendant should be given credit for overpayment of interest. The amount due by the defendant to the plaintiff will, therefore, be the sum of [IR£438,605.41] less the overpayment of interest.”
While I have determined the principle to be applied in this instance, I would hear counsel on this matter as to the actual sums involved, if they so wished.
Cost order in the High Court
20. The plaintiff has also appealed against the refusal of the High Court to award to the plaintiff the costs of its appeal against the defendant.
It is clear that when the issue of costs arose in the High Court both sides were given the opportunity to make submissions and to have their argument on the matter heard. Having heard counsel for both parties the High Court made no order for costs to the plaintiff.
It is unfortunate that no reasons were given. Such an approach is not best practice. However, I would not intervene on this ground alone.
In this case there had been a very full hearing of the case (and previous related litigation between the parties) before the trial judge. It is plain from the written reserved judgment that the trial judge had considered all aspects of the case and was fully aware of the nature of the disputes between the parties. He expressed also his clear opinion of the behaviour of the parties. Nothing which has been determined by this Court interferes with those findings.
While the usual order is that costs follow the event, the Court has a discretion. The claim of the plaintiff has to be viewed in light of all the circumstances of the case, which included the behaviour of the plaintiff and the extensive proceedings on the counterclaim.
In all the circumstances of the case I am not satisfied that an error in principle of the High Court decision on costs has been identified. Consequently, I would not intervene in this order on costs of the High Court.
Conclusion
21. In conclusion, on the appeal by the plaintiff from the judgment and order of the High Court, as to the four parts of the High Court order sought to be set aside, for the reasons stated, I would order:
(a) That the award of IR£50,000 for general damages to the defendant not be set aside;
(b) That the award of IR£250,000 exemplary damages to the defendant be set aside and in place order an award ofIR£100,000 exemplary damages;
(c) That the defendant be entitled to recoup interest on the sum of IR£150,000 at 8% per annum from the 23rd day of April, 1996, to the date of judgment and order from the plaintiff and to set off same against the sums due by the defendant to the plaintiff;
(d) That there be no intervention in the order of the High Court refusing the plaintiff’s application for the costs of its claim against the defendant.
Herrity v Associated Newpapers (Ireland) Ltd [2008] I.E.H.C. 249JUDGMENT delivered by Ms. Justice Dunne on the 18th day of July 2008
The plaintiff in this case seeks damages for wrongful invasion and breaches by the defendant of the rights enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. Other relief arising from the same circumstances is also claimed.
The plaintiff is a married woman who was residing in Lucan in 2003. A number of articles appeared in a newspapers owned by the defendant over a three week period concerning the plaintiff. The first of the articles appeared in the edition of the 2nd November, 2003, under the headline “Husband accuses priest of dirty dealing … with his wife”. The second article appeared on the 9th November, 2003, under the headline “Wife’s nights on the town with her OTHER ‘wild’ priest”. The third article appeared on the 16th of November, 2003, under the headline “Phone lover priest quits”. A fourth article was subsequently published in 2004. It is not the subject of complaint in the pleadings herein although reference was made to it during the course of the hearing.
The articles concerned the relationship between the plaintiff and Fr. Heber McMahon, then a parish priest in Brackenstown, Swords, Co. Dublin. The first of the articles set out an account of the plaintiff’s background and a history of the marriage of the plaintiff and her husband. It described how the plaintiff and her husband came to develop a friendship with Fr. McMahon over the years. It also set out some detail as to the breakdown of the marriage between the plaintiff and the plaintiff s husband. The subheading for this article was as follows:-
“The extraordinary tapes which revealed to parishioner that ‘all priest’ star was a little too close for comfort”.
This article was accompanied by three photographs of the plaintiff, one in which she is seen with her husband and another in which she is seen with Fr. Heber McMahon. There is also a photograph of Fr. McMahon. The article was also accompanied by a transcript of a telephone conversation that took place between the plaintiff and Fr. McMahon. That transcript was introduced as follows:-
“Michelle Herrity and Fr. Heber McMahon shared intimate and frequent telephone conversations which were intercepted by a private eye working for her husband, Liam. In the first extract, the couple have a lover’s tiff, ironically sparked because the unsuspecting pair cannot work out why the phone line is bad. Bizarrely, both frequently refer to themselves in the third person as ‘your wife’ and ‘your husband’.”
The main body of the article referred to the extract from the transcript as follows:-
“Now Michelle’s furious husband has reported Fr. McMahon to the Diocese after commissioning a private eye to spy on the couple and tape their intimate telephone conversations. For weeks the private eye tailed Fr. McMahon and Michelle and caught them going on holiday to Italy together and having dinner in a plush restaurant. But the clinching evidence that their relationship was far closer than appropriate for priest and parishioner came when the investigator taped a series of conversations between the two. The extraordinary tapes which have been listened to by Ireland on Sunday, contain lurid conversations between the pair in which they talk with baby voices and call each other ‘husband’ and ‘wife’. In all, there are thirteen hours of cassettes which captured the nightly chats between the pair in which they regularly spoke of their love for each other.”
The second article referred to was published on the 9th November, 2003, and contained transcripts of parts of two conversations that the plaintiff had with a Fr. Eddie Cleary and three telephone calls she had with Fr. McMahon and a transcript of part of a telephone conversation with a female friend. The main body of the article contained references to the transcripts which were published on that date as follows:-
“Mrs. Herrity’s socialising and questionable friendship with thirty four year old Fr. Cleary is revealed in thirteen hours worth of detailed phone conversations which were taped by a private detective hired by her suspicious husband, Liam. Although the bulk of the conversations are between Mrs. Herrity and Fr. McMahon, there are references made to Fr. Cleary and chats involving the young priest and Mrs. Herrity. In one conversation, Mrs. Herrity tells a female friend how she spent more than four hours one night drinking in Bewleys Cafe on Grafton St. with a priest, who was originally from Co. Tipperary. She said: ‘I sat there and I didn’t go home until about 1.00 in the morning. I sat there and I had three glasses of wine and had a ball with him, now I really did’. Mrs. Herrity also told her shocked friend that the easy going cleric knocked back the vodka. She said: ‘I mean, he drinks vodka, he is a good drinker, you know. But I went up there and here is me thinking I am going to tell him my problems and he starts telling me all his problems. Oh I tell you, the laugh I had’.”
The final article to which reference is made in the pleadings was that headed “Phone lover priest quits”. That article did not publish any further transcripts of the plaintiff’s telephone conversations but made the following comment:-
“Mr. Herrity, who is estranged from his wife, had become so suspicious of the relationship that he hired a private detective to monitor the couple’s activities and to tape their telephone conversation. What he discovered was that Fr. McMahon and Michelle Herrity, a petite blonde, had enjoyed romantic dinners, beach strolls and even a holiday together in Italy. However, their intimate conversations provided a greater insight into just how close the couple had become. They affectionately referred to each other as ‘husband’ and ‘wife’ and repeatedly said to one another, ‘I love you’.”
The evidence of the plaintiff.
The plaintiff in the course of her evidence described her family background, education and her training to become a hairdresser. She married Liam Herrity at the age of twenty two, having known him since she was fifteen to sixteen. Originally they lived with his father in his father’s home and subsequently bought their first house in Clondalkin. They met Fr. McMahon there through a residents committee and became friendly with him. Her husband was active in local affairs. They subsequently moved to Lucan.
There were no children of the marriage. The plaintiff described her husband’s attitude to having children – apparently, he did not want to have children unless they were adopted.
The plaintiff then went on to outline her concerns as to her husband’s friendship with a young man who was employed by her husband when he was seventeen. This young man accompanied Mr. Herrity on holidays and on other activities such as golf and horse riding. The plaintiff was concerned with the amount of time her husband spent with this young man and she also had some other concerns about their relationship. She confronted him at this time and asked her husband to leave the house. Court proceedings followed and on the 8th August, 2003, a Civil Bill was issued.
The plaintiff indicated that at that point in time the relationship with Fr. McMahon was one of friendship only. Following the departure of the plaintiff’s husband from the family home her relationship with Fr. McMahon became more intimate and developed into a sexual relationship.
She gave evidence to the effect that she was the subscriber to the telephone which was in her name only. She did not give anyone permission to interfere with her telephone line. The first intimation that the plaintiff had, that her phone conversations had been taped came from a telephone call made by her husband to the plaintiff’s sister-in-law. He stated that he was going to have transcripts of phone conversations published, if she did not sign over the family home to him for a sum of €20,000. She did not believe that he had any transcripts. Subsequently, the day before the first article was published, she received a phone on her mobile phone at work. She was told that a story was about to be published about her relationship with Fr. McMahon and she was asked for a comment. She described how she dropped the phone and became hysterical. Because of her reaction to the phone call, she lost her job. She was unable to drive herself home and her brother had to collect her. She described her reaction to the publication of the article the following day and commented that the article was based on her husband’s account of the marriage breakdown. She said that it was untrue to suggest that the marriage broke down because of her involvement with Fr. McMahon and she was critical of the fact that the defendant’s newspaper made no effort to find out her side of the story apart from the brief phone call at her place of work. She outlined her reaction to the subsequent articles, she accepted that the transcript as set out were accurate but commented that they were transcripts of private conversations which were meant to be private.
She explained that she is now living with Fr. McMahon who has applied to be laicised. She said that the publication of the material knocked her confidence completely. She said she suffered from nightmares and panic attacks subsequently. In the course of cross examination she was adamant that her relationship with Fr. McMahon developed after her marriage was over and she conceded that her marriage was over before her husband moved out of the family home. She accepted that the conversations which were recorded took place in 2003 by which time she was involved with Fr. McMahon. She accepted that insofar as the newspaper article published on the 2nd November, 2003, was concerned that it was true to say that she was in a relationship with a man who was a priest.
The evidence of Fr. Heber McMahon.
Fr. McMahon in the course of his evidence said that he was still a priest in the Roma Catholic Church. He has resigned all his duties and is waiting for laicisation. He described how he came to know both of the Herrity’s. Subsequently he was transferred to Brackenstown, in Swords and the plaintiff and her husband continued as friends. Subsequently he discovered that the marriage of the plaintiff and her husband was unhappy. He suggested counselling and was anxious to help. He accepted that his concern for her ultimately led him to become unprofessional in his relationship with her. However, he stated that this post dated the break up of the marriage.
Finally he described how he became aware of the imminent publication of the first article. He was stopped at traffic lights in town when a person who identified himself as a journalist from “Ireland on Sunday” tapped on his window. There was a brief conversation during which Fr. McMahon confirmed that Mr. Herrity had made a complaint to his archbishop. There was no further contact beyond that. He then described the adverse effect of the publication on the plaintiff. He reiterated that the break up of the marriage pre-dated his relationship with the plaintiff.
In cross examination, he accepted that a complaint had been made by Mr. Herrity to the Church authorities in 2002. By November, 2003, he was engaged in an emotional and sexual relationship with the plaintiff. At that time he was still a serving parish priest and was reasonably well known. He accepted that he was in breach of his ethical code and that people would be disappointed by a priest not living up to his vows. He accepted that people would have an interest in the story. He accepted that the discussion he had with the journalist on the Saturday prior to the publication of the article was accurately reported, but he described it as a discussion and not an interview. He tendered his resignation after the article appeared.
Evidence of Raymond Casey
Mr. Casey gave evidence that he was a former member of the Gardai. He is now employed in the security business and in that capacity he was asked to visit the former family home of the plaintiff and her husband. He found evidence that a device had been placed at some stage at the point at which telephone lines entered the house. He noted that the connector attached to the phone wire could have been used to connect to a tape recorder. His conclusion was that it was clear that a device was connected to the phone line.
Evidence of Patrick Ryan
The plaintiff’s solicitor Patrick Ryan gave short evidence as to the activity of a photographer in the precincts of the court building. He saw the photographer on a number of occasions and subsequently saw the same photographer with the defendant’s team.
No evidence was tendered on behalf of the defendant.
Findings on the evidence
So far as the evidence in this case is concerned, I accept that the relationship between the plaintiff, her husband and Fr. McMahon was at the outset one of mutual friendship. Over a period of time, difficulties arose in the marriage of the plaintiff and her husband. An attempt was made to deal with these difficulties through counselling, on the recommendation of Fr. McMahon, but to no avail. It seems to me from the evidence that I heard, that the plaintiff at this time had legitimate concerns as to the nature of the relationship between her husband and the young man who was his employee and with whom he now lives.
I accept that the relationship between Fr. McMahon and the plaintiff became intimate after the marriage of the plaintiff and her husband had come to an end, although I am somewhat unclear as to whether this was before or after Mr. Herrity left the family home. I am also unclear as to precisely when Mr. Herrity did in fact leave the family home. It is clear the Circuit Court proceedings commenced in August, 2003, but as I have indicated it is not clear whether Mr. Herrity had left the family home prior to that date or not.
I also accept and there can be no doubt about this that the telephone line of the plaintiff was interfered with and that a recording device had been attached to the telephone lines. Her telephone calls were recorded without her permission. There can also be no doubt that this was done at the instigation of Mr. Herrity, apparently by a private detective employed by Mr. Herrity.
The newspaper articles of which complaint is made in these proceedings were clearly facilitated by Mr. Herrity in that he provided the transcripts and a number of photographs. The newspaper articles presented a one sided account of the break up of the marriage. It could be said that the evidence I have heard is also one-sided given that no evidence was led by the defendant but nonetheless, I am satisfied that the account given in the newspaper article was significantly less than the full story.
I accept that the plaintiff was deeply upset as a result of the publication of these articles and particularly, the publication of her private telephone conversations.
As mentioned at the outset, the plaintiff in these proceedings claims damages for breaches by the defendant of the right to privacy enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. In addition she claims damages for the wrongful infliction of mental distress, for beach of confidence, for breach of statutory duty and for conspiracy. The core of the complaints made by the plaintiff herein is an alleged breach of the provisions of s. 98 of the Postal and Telecommunications Services Act 1983, which provides:-
“(1) A person who
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence. …”
Section 98(5) of the Postal and Telecommunications Act 1983 as amended by s. 13(3) of the Interception of Postal Packets and Telecommunications Messages Act 1993, provides as follows:-
“In this section ‘intercept’ means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly.”
The amended defence filed herein included a plea that if, which was denied, the articles complained of included content that was acknowledged in the articles to include extracts from recordings made of private telephone conversations held by the plaintiff with third a party, it was denied that such conversations were held by the plaintiff on her private telephone line as alleged. It was also further denied that the material had been obtained by a third party by means of unlawful surveillance and recording of private conversations held by the plaintiff on her telephone line. Notwithstanding these pleas, I am satisfied that there is no doubt whatsoever that the articles complained of contained material which was obtained by means of the recording of telephone conversations of the plaintiff with third parties without her knowledge or permission. To that extent it appears that there has been a breach of s. 98 of the Postal and Telecommunications Act 1983.
The Issues
The key point in this case made by the plaintiff is that the publication of the transcripts amounts to a breach of the right to privacy enjoyed by the plaintiff. It was conceded that the right to privacy is not an unqualified right and that there may be exceptional circumstances in which it is possible to justify the breach of privacy of an individual. However, it was submitted that the defendant could not attempt to claim that their actions were lawful in circumstances where the material published was obtained as a result of the commission of a serious criminal offence.
In the defence filed herein, the defendant pleaded that it acted in accordance with the right to freedom of expression, in particular in publishing material in the public interest. However, it was submitted that the articles in this case went much further than could be justified by reference to any public interest. In replies to particulars, the public interest identified by the defendant, inter alia, was that served by exposing “the conduct of members of the clergy, who hold positions of public trust”. However, it was submitted on behalf of the plaintiff that this did not justify details relating to her private life being publicised and that this went far beyond any need to publicise the conduct of Fr. McMahon. In support of this contention, particular reliance was placed on the second article published by the defendant on the 9th November, 2003, which contained transcripts of further telephone conversations of the plaintiff. In those conversations reference was made to Fr. Eddie Cleary. It was submitted that there was no justification whatsoever for publishing that material. It was submitted that the defendant did not set out to inform their reader that Fr. McMahon was having an affair with a married woman but rather they set out to use the material given by her husband to violate her privacy.
The response of the defendant to the arguments of the plaintiff in respect of the plaintiff’s claim for damages for breach of the right to privacy is to say that the authorities do not support the contention that there is a cause of action for damages for breach of privacy against a defendant other than the State. In other words damages cannot be recovered for breach of privacy against a private person or entity. Reference was made to the decision in the leading case of Kennedy v. Ireland [1987] 1 I.R. 587. It was submitted that that decision appears to refer only to State liability. It was pointed out that there is no decided case in this jurisdiction where damages have been given for breach of a right to privacy against a private person or entity. It was further pointed out that the only cases within this jurisdiction that have gone to full trial and in which the right to claim damages for breach of privacy have been recognised have been claims against the State, namely, Kennedy referred to above, Hanahoe v. Hussey [1998] 3 IR 69 and Gray v. Minister for Justice [2007] IEHC 52.
It was accepted that there have been decisions given in this jurisdiction at an interlocutory stage which have assumed that there is a cause of action in privacy against a private individual, namely, X. v. Flynn (Unreported, Costello J. 19th May, 1994), M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
Reference was also made to the English authority in the case of Wainright v. Home Office [2004] 2 AC 406, in which it has been specifically decided that there is no general common law tort of invasion of privacy.
The second point made on behalf of the defendant was that if there is a right to claim damages for breach of privacy against private persons and entities then following the reasoning of the Supreme Court in Kennedy, it can be concluded that the publication of transcripts of telephone conversations is a prima facie breach of the right to privacy if the publication was deliberate, conscious and unjustified. Therefore the question to be considered in this case is whether the prima facie breach was “unjustified”. The first point relied on in this regard is that the defendant in this case, a newspaper, was exercising its right to freedom of expression. Such a consideration was absent from the Kennedy case. It was pointed out that there is a conflict between the right of privacy on the one hand and the freedom of expression on the other hand. Reference was made in that context to the decision in Supreme Court in the case of Mahon v. Post Publications Limited [2007] 2 ILRM 1. Thus counsel argued that the defendant was entitled to publish the material concerned not simply by relying on the public interest but also having regard to the defendant’s right to freedom of expression. In other words it is not necessary to justify the publication by reference to the public interest. It was pointed out that in this regard there is no conflict between the Constitution and the European Convention on Human Rights. Although the 2003 Act, was not in force at the time of publication, it was suggested that the approach taken in the case of Mahon v. Post Publications Limited should be adopted in this case. Freedom of expression is not dependant upon being able to establish that there is any public interest in a story.
The second point made on behalf of the defendant is that the central allegation in the articles complained of is true. There is no challenge to the accuracy of the material published. It was submitted that this was a decisive factor in an analogous case namely, Maguire v. Drury [1995] 1 I.L.R.M. 108.
The next point relied on by the defendant was the public interest. It was pointed out that Fr. McMahon was a Catholic priest and as such required to be celibate. It was also submitted that a Catholic priest, particularly one who serves as a parish priest, is a public figure. It was argued that if such a priest is not celibate or if his private behaviour is not in accordance with the norms advocated by the Church, then that is a matter of public interest. Reliance was placed on the decision of the Court of Appeal in the United Kingdom in the case of A. v. B. Plc [2003] QB 195.
The final matter relied on by the defendant was the fact that the information published came from the plaintiffs husband and it was submitted that his rights to freedom of expression had to taken into consideration. In support of this contention reliance was placed on the decision in A. v. B. Plc referred to above and on a passage at para. I l(xi) where it was stated:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
On the basis of that decision it was contended that if it was relevant in that case to consider that one of the parties to a non-marital relationship wished to give information to the newspapers it was all the more so a consideration where the information came from a party to a marriage.
Relying on those considerations, it was submitted that the publication was justified.
The Right to Privacy
The right to privacy is an unenumerated right under the Constitution which has its genesis in a short series of cases commencing with the decision in McGee v. Attorney General [1974] IR 284. That well known case concerned the provisions of s. 17 of the Criminal Law (Amendment) Act 1935, which restricted the availability of contraceptives. Section 17(3) was struck down as being inconsistent with the Constitution as it was an unjustified invasion of the plaintiffs personal right to privacy in her marital affairs. At p. 313 of his judgment, Walsh J. commented:-
“In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.”
Henchy J. at p. 308 in the same judgment said:-
“In my opinion, s. 17 of the Act of 1935 violates the guarantee in
s. 3(1) of Article 40 by the State to protect the plaintiff s personal rights by its laws; it does so not only by violating her personal right to privacy in regard to her marital relations but, in a wider way, by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. Because of the clear unconstitutionality of the section in this respect, I do not find it necessary to deal with the submissions made in support of the claim that the section violates other provisions of the Constitution.”
Griffin J. also referred to the concept of marital privacy as one of the personal rights guaranteed by s. 3(1) of Article 40 at p. 333 of the judgment.
Thus it was for the first time that the right to privacy in any context was recognised as one of the unenumerated rights under the Constitution.
The next case to consider the right of privacy in this extent was the case of Norris v. Attorney General [1984] IR 36. That case considered the constitutionality of laws criminalising homosexual acts between males. In that case the question of the right to privacy was considered, but the majority of the Supreme Court took a restrictive view of the extent of the right of privacy. In the course of his judgment in that case, O’Higginc C.J. noted at p. 64 a right of privacy or, as it has been put, a right “to be let alone”, can never be absolute.
The genesis of the right to privacy culminated in the case of Kennedy v. Ireland [1987] 1 I.R. 587. The decision of the High Court in that case expressly recognised that there is a constitutional right to privacy. That case involved unlawful tapping of the plaintiff s telephone lines. The plaintiff claimed that this was a breach of their personal right to privacy and freedom from unlawful and unwarranted intrusion, guaranteed by Article 40 of the Constitution. In the course of his judgment, Hamilton P. stated at p.590:-
“The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] IR 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated: –
‘The Constitution does not guarantee or, in any way, expressly refer to a right of privacy – no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment (Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments (Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights (Griswold v. Connecticut (1965) 381 U.S. 479) – the contraceptives case; in the Ninth Amendment (Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1(4) – the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions – all conferred by Article 40, s. 6(1); the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] IR 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, s. 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld – the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences – a greater awareness of the need for the enunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts; and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation – thus playing its part in ‘seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .’ as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court ‘the right to be let alone’ – a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 EHRR 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.’”
Having quoted at length the passage from the judgement of McCarthy J. in Norris, Hamilton J. at p. 592 then continued:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] IR 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.”
Mr. McCullagh, S.C. on behalf of the defendant did not dispute the existence of a right to privacy but contended that there was no right to sue a private entity or person for damages for such a breach. He relied on the language of Hamilton P. and in particular the last paragraph of the passage just quoted above to suggest that the liability in respect of damages is limited to the State. He accepted that the right to sue an individual or entity had been assumed in a number of cases but added that such assumption had been made in cases involving interlocutory applications only and not in cases that had gone to full trial. Any case in which the matter was raised and in which the right to claim damages for breach of privacy have been recognised were actions against the State.
During the course of legal argument herein, reference was made to the case of Meskell v. C.I.E. [1973] I.R. 121 by Mr. McDowell, S.C. in support of the plaintiffs contention that a claim for damages for breach of a constitutional right was not limited to actions against the State. The case of Conway v. I.N.TO. [1991] 2 I.R. 305 was also referred to in this context.
It is interesting to note that in the Kennedy case referred to above, Hamilton P. expressly referred to the decision in Meskell at p.593 of his judgement. He quoted from the words of Walsh J. during the course of his judgment in that case where he stated at pp. 132 and 133:-
“A right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
Hamilton P. in the course of the Kennedy judgment having referred to the passage referred to above from Meskell, went on to say as follows:-
“In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.”
I should refer briefly to the decisions referred to by Mr. McCullough, in support of his argument that there is no single decision arising out of the hearing at full trial of a claim for damages for breach of privacy against a private person or entity. The two cases relied on in particular in this regard are the decisions in M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
The facts of M. v. Drury referred to above are strikingly familiar to the facts of the present case. The plaintiff wife and the husband had been involved in family law litigation which resulted in an order for judicial separation being made on the 26th July, 1993. A number of articles appeared in different newspapers published by the defendants reporting the husband’s view that the marriage had broken down by reason of an alleged adulterous relationship between his wife and a Roman Catholic priest, and his intention to bring proceedings against the Roman Catholic Church seeking compensation for the breakdown of his marriage. The plaintiff applied to the High Court for inter alia, an interlocutory injunction restraining the defendants from publishing or communicating to any person any matter or fact, pertaining to her family life. It was submitted on behalf of the plaintiff that since the proposed publications would disclose matters relating to the intimate family relationship of the plaintiff and the defendant, they constituted an invasions of the plaintiff’s right to privacy which right was an unspecified right deriving from the Constitution of Ireland, 1937, and in particular, Article 41 thereof. It was held, by O’Hanlon J. that the proposed publications complained of did not concern the intimacies of married life or marital communications between husband and wife but, allegations of adultery made by a husband against a wife. Accordingly, having regard to the provisions of Article 40 and Article 41 of the Constitution, there was no fair case to be tried as to whether some right of the plaintiff derived from those Articles would be breached by publication of the proposed material. It was also noted by the Court that had the truth of the allegations been contested by the plaintiff, the injunction could have been granted and the law of defamation could have been invoked in aid of the plaintiff’s claim. The court went on to hold that whilst in certain cases the right to privacy, which right was an unspecified right deriving from the Constitution, demanded an intervention of the courts, in general it was desirable that the legislature and not the courts should prescribe the exceptions to the right of freedom of speech. It was also held that having regard to the fact that the husband’s allegations had already been widely aired in the press and to the general undesirability of delaying the publication of material in circumstances where it was likely that the courts would determine that such publication was lawful at the trial of the action, the balance of convenience was against granting the reliefs sought. It is interesting to look at precisely what was said by O’Hanlon J. in the course of his judgment. At p. 14, he commented:-
“It appears to me, however, that what is involved in this case is not a matter concerning the intimacies of married life, or marital communication between husband and wife but rather a matter of allegations made by a husband of an extra-marital liaison entered into by his wife which he was anxious to publicise for the purpose of giving vent to his anger against the third party involved and possibly to reap some financial reward for himself in the process.
If the truth of the allegations were seriously challenged, the courts would certainly intervene in an appropriate case to prevent publication pending trial and the law of libel could be invoked in aid of the plaintiff’s claim. Similarly, in case of a breach of the in-camera rule, as happened in Re Kennedy & McCann [1976] I.R. 382, injunctive relief could be obtained under various statutes dealing with family law matters.
I cannot derive from the provisions of Article 40 or Article 41 of the Constitution any grounds which lead me to believe that there is a fair case to be tried as to whether some right of the plaintiff under those Articles would be breached if further revelations of the kind which have already appeared in print are repeated in the future in the publications of the various defendants or for which they are responsible as distributors or correspondents or otherwise.”
He went on to say at p. 17:-
“There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution – see judgment of Budd J. in McGee v. Attorney General [1974] IR 284 at p. 322) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302, where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).
In the present case, the Court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publications is sure to cause, the children of the marriage were all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular to the strongly expressed guarantees in favour of freedom of expression in that document.”
He went on to deal with the balance of convenience, if it arose, in that case and he noted that there seemed to be little to be gained by granting an interlocutory injunction as maximum publicity had already been given to the husband’s version of events. It seems to me that that case is important for a number of reasons. First of all, it recognises the existence of a right to privacy as one of the personal rights guaranteed protection by the Constitution. Secondly, it does recognise the importance of protecting confidential communications between a husband and wife during their married life together. (Despite the fact that the articles concerned in this case deal with the marital circumstances of the husband and wife, it is clearly not a case in which confidential communications between a husband and wife during their married life together have been disclosed.) The third point that is important to note is the comment of O’Hanlon J. to the effect that it was desirable that it should be left to the legislature and not to the courts to “stake out the exceptions to freedom of speech”. I will return to this point later.
The other case I wish to refer to in this context is the judgment in the case of Cogley v. R.T.E. [2005] 2 I.L.R.M. 529. That case concerned an intended broadcast of a programme in relation to the operation of a nursing home known as Leas Cross Nursing Home. Two sets of proceedings were brought against RTE seeking to prevent the broadcast of the programme. The plaintiff in the first set of proceedings was a Director of Nursing at the nursing hone and the plaintiffs in the second set of proceedings were the owners and occupiers of the nursing home. Using a concealed camera, a worker filmed the operation of the nursing home over a two week period. The plaintiffs in the second proceedings based their application primarily on the allegation that the use of a secret camera was a breach of the right to privacy of the plaintiffs and the patients at the nursing home and constituted trespass. In considering the extent of the constitutional right to privacy as set out in Kennedy v. Ireland, Clarke J. noted at p. 90:-
“However, it is also clear from Kennedy v. Ireland [1987] I.R. 587 that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting authority not to ‘unreasonably encroach’ on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.”
Clarke J. went on to comment as follows:
“A useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought. to prevent, on the one hand. and, on the other hand, the situation where a right to privacy which does not extend to that underlying information but it is contented that the methods by which the information has been obtained amount to a breach of privacy.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors which may be involved, such as the public interest, be able to maintain that the information must always be kept private but may make a complaint in relation to the manner in which the information was obtained.
It seems to me the different considerations apply most particularly at an interlocutory stage, dependant on which of the above elements of the right to privacy is involved.”
Ultimately in that case the court went on to refuse the interlocutory relief sought. Clarke J. did comment (at p. 93) that the plaintiffs had at least made out an arguable case to the effect that the circumstances in which the filming occurred may amount, prima facie, to a trespass and breach of privacy. However, he went on to hold that the mere fact that information may arguably have been obtained in breach of an individual’s rights is not of itself necessarily decisive. He pointed out the importance of weighing in the balance any public interest issues which arise and given that he was dealing with an interlocutory application, the extent to which damages may be an adequate remedy. I find it difficult to draw the conclusion from the decision in that case or indeed from the decision in M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists. What does emerge from the decisions to which I have referred and in particular from the decision in the case of Cogley v. R.T.E. are the following principles:-
(1) There is a Constitutional right to privacy.
(2) The right to privacy is not an unqualified right.
(3) The right to privacy may have to be balanced against other competing rights or interests.
(4) The right to privacy may be derived from the nature of the information at issue – that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally.
(5) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained.
(6) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.
Application of the principles to the facts of this case
Given that I have reached the conclusion that a breach of the constitutional right to privacy is actionable against a private person or entity, it is now necessary to consider in the context of this case whether the matters published by the defendant herein amount to a breach of privacy and the extent to which the right to privacy asserted by the plaintiff herein may be qualified. It was accepted in this case on behalf of the defendant that if there is a right to claim damages for breach of privacy against private individuals, then that right must follow the reasoning of the Supreme Court in Kennedy. On that basis it was accepted that the publication of transcripts of telephone conversations is a prima facie breach of that right if it was deliberate, conscious and unjustified. On that basis it was submitted that the question to be determined is whether the prima facie breach of the right to privacy was “unjustified”.
The defendant relied on a number of matters to justify the publication of the articles complained of herein. Those can be summarised as follows:-
(1) The newspapers’ right to freedom of expression.
(2) The accuracy of the information involved.
(3) The public interest in the information.
(4) The freedom of expression of the plaintiff s husband.
In support of those matters, the defendant relied on a number of authorities. Dealing with those issues as they arose, counsel on behalf of the defendant noted that the question of freedom of expression was not something that arose in the Kennedy case. Reference was made to the judgment of the Supreme Court in Mahon v. Post Publication Limited [2007] 2 ILRM 1 in which Fennelly J. considered the nature of freedom of expression at page 13 and 14 of the judgment:-
“It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Gribbin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television Plc [1994] 3 WLR 20:
‘Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.’”
That is a powerful expression of the right to freedom of expression. It is not authority however for saying that the right to freedom of expression is more significant than the right to privacy. As Hoffmann L.J. noted, the freedom is subject to clearly defined exceptions laid down by common law or statute. It is in that context that the constitutional right to privacy comes into the equation. Accordingly it seems to me that there is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy. It is clear that newspapers are free to publish all sorts of matters regardless of public interest and questions of good taste but, as is the case with the right to privacy, the right to freedom of expression is not an unqualified right. Lord Hoffmann in the passage just quoted above and approved by Fennelly J. noted:-
“This freedom is subject only to clearly defined exceptions laid down by common law or statute.
O’Hanlon J. in the case of M. v. Drury referred to above, quoted the same passage from the judgment of Hoffmann L.J. and he added at page 17 of his
judgment:-
“Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).”
Clarke J. in his judgment in Cogley referred to the fact that:
“There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
It seems to me that those passages have a particular bearing in the context of this case. The publication of the telephone transcripts in this case were obtained in breach of the provisions of s. 98 of the Postal and Telecommunications Services Act, 1983. As previously indicated, s. 98(1) applies to a person who not only intercepts or attempts to intercept or authorises someone else to intercept telecommunications messages but also applies to those who disclose the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message and such person is also guilty of an offence. I cannot see how anyone can assert a right to freedom of expression to publish transcripts of private telephone conversations where the legislature has expressly prohibited the interception of telecommunications messages. This is precisely a situation in which the State has seen fit to lay down by statute an exception to the right to freedom of expression. There is a hierarchy of constitutional rights and as a general proposition, I think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between. However, this may not always be the case and there are circumstances where it seems to me the right to privacy could be such that it would prevail over the right to freedom of expression. One of those circumstances arises on the facts of this case where the freedom of expression asserted is the publication of material obtained unlawfully. One must bear in mind that the provisions of s. 98 of the Act are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.
There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor-patient relationships? What if the individual was a well-known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest.
The second aspect of the matter relied on by the defendant herein related to the accuracy of the information. Undoubtedly that was a factor in the case of M. v. Drury referred to above. The facts of that case are, as mentioned previously, very similar to the facts of this case. In that context, O’Hanlon J. stated at page 17:-
“In the present case, the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause the children of the marriage who are all minors. This would represent a new departure in our law, from which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document.
I therefore do not find that it has been shown that there is a fair case to argue when the case comes on for full trial, an on this ground I refuse the application for interlocutory relief.”
The fact that the material is accurate does not of itself give rise to a right to publish the material. As I have noted above the right to freedom of expression is subject to exceptions at common law and subject to statutory restriction. The fact that the material is accurate would not in my view avail the defendant in this case where the material at issue is disclosed contrary to a statutory exception to the right to freedom of expression.
The third point relied on by the defendant is the public interest. In essence the submission of the defendant was that the information that appeared in the articles complained of concerned a Catholic priest. It was submitted that the Catholic Church demands celibacy of its priests and that a Catholic priest and in particular a parish priest is a public figure. On that basis it was contended that there was a legitimate public interest in whether a parish priest is having an affair with a married woman. In this context reference was made to the decision in the case of A. v. B. Plc [2003] QB 195 where the Court of Appeal noted:-
“Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion that follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
I would make a number of observations about this line of argument. First of all the public interest in this particular case, such as it may be, is asserted to be a public interest in the behaviour of Fr. McMahon, who is of course, not the plaintiff herein. Much of the material that appeared in the course of these three articles concerned the plaintiff. Given the nature of the role of a Catholic priest in Irish society, Fr. McMahon could well be said to be a person whose conduct may be subject to public scrutiny as outlined in the case of A. v. B. referred to above. It is inevitable that if information is disclosed about a public figure such as a priest, that could expose others in the position of the plaintiff herein to unwelcome intrusion into their lives. In such circumstances I think that as a general proposition the right to freedom of expression would outweigh the right to privacy of the individual in the position of the plaintiff herein. However, in considering that aspect of the matter one would also have to have regard to the extent of the information in relation to the individual concerned and once again, one would have to have regard to the means by which the information was obtained and the type of disclosure that occurred. Accepting as I do that there is such a public interest of the kind contended for by the defendant, nonetheless, that public interest remains subject to the caveat that the limits on the right to freedom of expression cannot be ignored simply by recourse to the public interest. In other words, the right to freedom of expression is as stated before, not an unqualified right. It is subject to exceptions at common law, for example, by means of defamation law (if the publication is not accurate) and by legislation. I can see no basis for saying that the public interest arising on the facts of this case could be such as to set at nought the restriction on the disclosure of telecommunications messages prohibited by s. 98 of the Postal and Telecommunications Services Act 1983. It simply cannot be so.
The final point raised relates to the right to freedom of expression of the plaintiff s husband. In the case of A. v. B. Plc. referred to above, it was noted by the court as follows:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
Thus it was submitted that where the information comes from a party to a marriage this is a relevant fact to consider in circumstances where one of the parties to the marriage wishes to give information to newspapers. That passage recognises the difficulty that is to some extent at the heart of this case, namely that one person’s right to privacy or as stated in that case to maintain confidentiality, must impact on the other’s right to freedom of expression. In such situations one has to weigh up the conflicting interests and find where the balance lies. However, for the reasons I have already outlined, such considerations do not arise where the material comes from a source which is prohibited by law as in this case, namely, telephone tapping.
Accordingly, I am satisfied that the publication of the transcripts of telephone conversations in this particular case by the defendant in breach of s. 98 of the 1983 Act, can only be described as a deliberate, conscious and unjustified breach of the plaintiff’s right to privacy.
Other issues
During the course of submissions in this case, Mr. McDowell, S.C. on behalf of the plaintiff in the course of submissions made the comment that there was no real significant or weighty public interest involved in these proceedings in the publication of private information pertaining to the plaintiff s private life. It was stated that the argument of the defendant could have carried some weight had the defendant limited its publication to details about Fr. McMahon and Fr. Cleary. He went on to say that the exposure of the plaintiff s private life without any basis in public interest and was designed purely to create a salacious and prurient article. As I have already indicated, I can see some basis for the identification of the plaintiff as a person involved in a relationship with Fr. McMahon. However, much of the material published in the articles and concerning the plaintiff could not have any bearing on the public interest asserted by the defendant. In any event much of the material published consisted of the contents of transcripts of private telephone conversations of the plaintiff. For the reasons outlined above there could be no basis for the publication of that material.
Submissions were made to me in relation to the right to privacy as protected under the European Convention of Human Rights. The publication in this case occurred before the European Convention on Human Rights Act 2003, came into effect on the 31st December, 2003. It was noted in the course of submissions that the right to freedom of expression under the Constitution were in accordance with the provisions of the European Convention on Human Rights, and it does not seem to me to be necessary to make any observation on the provisions of the Convention.
Submissions were also made in relation to a contention that the publication of the material in this case amounted to a breach of confidence. It does not seem to me to be necessary to deal with this issue in the light of the findings expressed above.
Further it was contended that the publication by the defendant of the telephone conversations amounted to a breach of statutory duty giving rise to a claim for damages. Again I do not think it is necessary to consider this aspect of the matter.
The final matter raised by way of argument was that there was a conspiracy on the part of the defendant and others in relation to the publication of the transcripts of the plaintiff s private telephone conversations for the purpose of injuring the plaintiff. Again I do not think it is necessary to consider this aspect of the case in the light of the views expressed in relation to the plaintiff s claim for damages for breach of her right to privacy.
Damages
The final issue to be considered in this case is the issue of damages. The first comment I want to make in relation to the question of damages is that I accept the evidence given by the plaintiff in this case. In that regard I accept that the marriage of the plaintiff and her husband had broken up before her relationship with Fr. McMahon commenced. I accept that there was no real effort made by the defendant to get the plaintiff’s side of the story in relation to the breakdown of the marriage. I accept that what appeared in the newspaper articles complained of was an account based solely on her husband’s version of events. There was a phone call made to the plaintiff on the day before the publication of the first of the articles complained of, but I cannot accept that it was a genuine attempt to obtain her side of the story. In any event, that would not justify a breach of a right to privacy. I accept that while she was asked about her relationship with Fr. McMahon in the phone call that took place, she was never asked anything about her friendship with Fr. Eddie Cleary or the circumstances in which that friendship came about. Finally I accept that the plaintiff was very distressed as a result of the publication of these articles exposing, as they did, to public scrutiny transcripts of her private telephone conversations.
Counsel on behalf of the plaintiff in the submissions in respect of damages referred to the decision of the Supreme Court in the case of Shortt v. Commissioner of An Garda Síochána [2007] IESC 9, in which the law in respect of damages in tort or for breach of a constitutional right were considered. It was stated by Murray C.J. as follows:-
“In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case …
In Conway v. I.N.T.O. Finlay C. J. stated:-
‘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. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
Bearing in mind those principles, it seems to me that the plaintiff herein is entitled to compensatory damages and I am also satisfied that she is entitled to aggravated damages. I am also satisfied that this is a case in which punitive damages should be awarded. I propose to deal with the issue of ordinary compensatory damages and aggravated damages together. In this regard I accept the evidence of the plaintiff that she was very distressed as a result of the flagrant and unwarranted breach by the defendant of the plaintiff s right to privacy. The publications at the heart of this case took place over a three week period designed to extract the maximum value out of the telephone transcripts of the plaintiff s conversations. Use was made of family photographs and information as to the plaintiff s family circumstances, history and background which could have had no bearing whatsoever on the public interest asserted by the defendant herein. However, the most serious aspect of this case was the use by the defendant of material obtained unlawfully as a result of an illegal phone tap, which was in turn, obtained by the defendant from a husband motivated by revenge. Balanced against that must be the fact that it seems to me that some limited information as to the plaintiff could have been legitimately brought into the public domain had the defendant chosen to write about the conduct of Fr. McMahon, in embarking on a relationship with the plaintiff. Unfortunately for the defendant, it chose to go beyond what would have been permissible in the exercise of its right to freedom of expression by making use of material obtained unlawfully. In this context, the passage from the judgement of Clarke J. in his judgement in Cogley at p. 539 is particularly apposite to the facts of this case:-
“In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right to privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
I should briefly add that complaint was made during the course of this case about the conduct of the defendant in the course of the trial of this action. Complaint was made as to the presence of a photographer and the conduct of the same photographer during the course of this trial. It appears that the photographer was seen in the company of the defendant’s representatives during the course of the trial. While that matter was ventilated in court, it does seem to me that one of the consequences of engaging in litigation is that parties will necessarily be subjected to the sometimes unwelcome attention of photographers. This is one of the modern day incidents of litigation and does not in my view amount to an element which could or should result in aggravated damages in the circumstances of this case.
Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in the case of Conway referred to above, it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.
Crawford v. Keane
[2000] IEHC 42 (7th April, 2000)
JUDGMENT delivered by Mr. Justice Barr on the 7th day of April, 2000
1. It is not unusual in running-down actions that the alleged circumstances of the accident in question as deposed by each party have little in common. It does not follow that any such witness is deliberately untruthful. In most instances the explanation for the disparity in recollection is that their purported memory of events has been coloured by their own particular interest. However, in this action the disparity between the rival accounts of the accident is profound and raises an issue of deliberate falsehood.
2. The plaintiff is 50 years of age. He is a married man and resides in Manorhamilton, Co. Leitrim where he carries on practice as a solicitor. At about 6.30 p.m. on 17th July, 1996 he drove his BMW motor car from the Dublin city centre towards Clontarf. As he approached Fairview Park there was heavy outgoing traffic in three lanes. He was driving in that nearest to the centre of the road. As he approached the Malahide road junction the lights turned red against the outgoing traffic which was brought to a halt. He stated that he was about the twentieth vehicle from the lights when he stopped and that he was the last car in his line. The lights changed and the vehicles ahead of him moved off in sequence. As he was about to move forward he heard a screech of brakes behind him and he looked in his mirror. He saw a van with a protecting bullbar heading towards him and about ten feet away at that time. His car was still stationary. There was what he described as “a huge impact”. Substantial damage was done to the rear of his vehicle and the cost of repairs was admitted as being £3,273.00. The impact was such that it drove the chassis forward and also the rear section of the car which jammed one of the back doors. The plaintiff says that he suffered severe shock which caused him to vomit when he got out of the car. His neck felt very sore and also his shoulders and lower back. The plaintiff also stated that the defendant, who was the driver of the van, came over to him and said that he was sorry for what he had done and added “I thought you were moving forward. I braked but couldn’t avoid hitting you”. The defendant accepted full responsibility and never alleged that the plaintiff had any fault in the matter. The plaintiff enquired “will I get the guards” and the defendant responded that there was no need to do so as the accident was his responsibility. He suggested that they should move their vehicles to the side of the road as they were obstructing traffic. He then took out a piece of paper which was produced in evidence on which he wrote his name and address; the name and address of his insurance brokers; the name of his insurance company; his policy number; registration number; mobile phone number and home phone number. The plaintiff wrote on the paper “white Nissan van diesel” and later that night when he returned home his wife, who works with him in his practice, added “RTA 17/7/96 6.40 p.m.”
3. The plaintiff says that he gave the defendant his name and address but does not know whether the latter wrote it down. He denied having reversed into the van. He does not recall any third party appearing on the scene. At the end of the incident the parties shook hands and went their separate ways. Both vehicles were drivable. The plaintiff denied that the defendant at any stage left the scene for the purpose of phoning the police or for any reason.
4. A full defence was delivered in due course in which it was alleged by way of contributory negligence that the plaintiff had suddenly and without warning reversed into and collided with the defendant’s van and that at the time the plaintiff was driving his motor car he knew or ought to have known that it was unsafe so to do by reason of his consumption of alcohol. In fact the plaintiff has been a total abstainer from alcohol all his life and has been a member of the Pioneer Total Abstinence Association since his school days. This fact was unreservedly conceded by Mr. McKenna on behalf of the defendant at the commencement of the trial and that aspect of the defence was withdrawn.
5. The defendant’s evidence was in stark contrast to that of the plaintiff. He said that there was no bullbar on his van. He was travelling in the same line of traffic as the plaintiff and, with him, was stationary at the Malahide lights. There was one other car between the vehicles. As they were all waiting for the green light the latter car indicated an intention to move into the middle lane and did so. At that point the defendant moved forward to take its place behind the plaintiff. As he was doing so the latter reversed back at speed. He applied his brakes. At the time when the defendant moved forward there were only two vehicles ahead of him i.e. the BMW and a vehicle immediately in front of it which he thought had broken down. In the event it drove away and the defendant ultimately conceded that it had not broken down but its engine may have stalled temporarily. He described the impact between the BMW and the van as being “soft”. Only £150 worth of damage was done to his vehicle. He did not make any claim on the plaintiff as he thought that his insurers were doing so on his behalf even though he had only third party cover. In fact no claim was made on the plaintiff by or on behalf of the defendant.
6. The defendant stated that when he got out of his car, he was very irate and swore at the plaintiff. He contended that the latter explained that the car in front of him had remained stationary when the lights had changed and he was trying to manoeuvre around it. He put his hand on the back of his neck and said that he had a slight pain there. The defendant asked if he would get medical assistance for him, but the plaintiff assured him “not to worry that he was okay”. He did not see the plaintiff vomiting. He stated that they were unsure what to do at that point as there was a considerable build-up of traffic. The plaintiff suggested that they should move their vehicles to the side of the road. The defendant added that he was beginning to calm down then and the plaintiff told him not to worry that he would sort everything out and fix things up. The defendant told him that he would ring the guards and asked the plaintiff to hold on until he found a telephone. In the event he couldn’t find a phone in neighbouring shops and when he came back to the scene the plaintiff had left. When asked about his mobile phone he alleged that when he returned to the van for the purpose of driving it to the side of the road he found that the phone had been damaged in the accident and, therefore, was not available to him for phoning the police.
7. Notwithstanding Mr. McKenna’s formal withdrawal of the allegation about alcohol and his acceptance that the plaintiff is a lifetime total abstainer, the defendant persisted in alleging in evidence that the plaintiff’s manner was very unusual and that he had smelt alcohol from his breath. He alleged that he reported the accident at Clontarf Garda Station that evening. An officer questioned him about the incident but made no record of it when he learned that there had been no personal injury involved.
8. The defendant also contended that when he returned to the scene having made an abortive effort to find a telephone, a man who he previously did not know came over to him with a piece of paper on which he had written his name and address. He handed that to the defendant and told him that he had witnessed the accident from a nearby bus-stop. They had no other discussion at that time and the man walked back to the bus-stop again. His name was Frank Roche and the defendant stated that he called to him about a week later and then found out what he had seen.
9. Mr. Roche gave evidence on behalf of the defendant. He said that he was standing at a bus-stop on the Fairview Park side of the road near the place where the accident happened. He was waiting with two or three others for a bus to bring him into the city. He stated that there were three rows of outward going vehicles stopped at the Malahide road traffic lights. There was a car between the van and the BMW which drove out of the line and “the van moved up a small bit and the BMW backed into him”. He stayed at the bus-stop but after the vehicles had moved to the other side of the road he crossed over using a nearby footbridge and gave the defendant a piece of paper on which he had written his name and address. About 15 minutes had elapsed by then since the happening of the accident. Subsequently he was interviewed at his home by an official from the defendant’s insurance company. He was given a form which he completed in the presence of the latter. The form included the following question 9:- “Was there anything to obstruct the view of either driver?” In answer he wrote down “Car broke down in front of BMW”. His description of the accident on the form was “Car broke down in outer lane going to Clontarf. BMW reversed back and hit the van. Both drivers got out. I heard the van driver ask the BMW driver why he reversed. BMW driver never answered the other driver.” In the course of his evidence Mr. Roche stated that he did not hear any conversation between the parties. He indicated that he was hard of hearing and he had heard no screech of brakes. It had also emerged from the evidence of the defendant, if true, that the plaintiff had left the scene before Mr. Roche approached him with his piece of paper.
10. If there had been no other liability evidence the plaintiff’s version of events might not have been accepted by the court. However, there was another crucial witness whose identity was unknown to either party at the time of the accident or for some substantial time thereafter. Garda Peter Connolly of Clontarf Garda Station deposed that he had witnessed the accident. He was on leave at the time and was driving towards the city. As he moved from the traffic lights at Malahide road he saw the defendant’s van “smash into the back of a black BMW”. He did not stop but called to the station for the purpose of arranging for a police car to investigate the accident. Nearly a year later when the plaintiff called to the station to enquire whether the gardai had any information about the accident he learned that Garda Connolly had witnessed it. At the time when the latter witnessed the accident he said that he was close to the van and the BMW – so close that he feared the van would swerve out and strike his car also. He stated that the plaintiff did not reverse into the van. Garda Connolly also confirmed that it was the established practice at Clontarf Garda Station at that time to record in a ledger brief details of traffic accidents when reported by members of the public. He had checked the ledger and there was no record of the alleged report made by the defendant.
11. I unreservedly accept the account of the accident given by the plaintiff and Garda Connolly, a truly independent witness. I reject the defendant’s testimony and also that of Mr. Roche. The defendant’s evidence in particular must be deliberately false if (as I find) the plaintiff’s testimony is truthful. As to Mr. Roche; it is highly improbable that 10 or 15 minutes after the accident he would have left the bus-stop and used the pedestrian bridge to get to the other side of the road for the purpose of handing his name and address on a piece of paper to the defendant without any discussion about what he had allegedly seen. On his own evidence he had been waiting for a bus into the city at that time for 25 minutes or thereabouts. Furthermore, I do not accept that the accident form was completed by him in the presence of an insurance official. If such a person had called to see him the probability is that the latter would have recorded the witness’s answers – particularly as Mr. Roche is not a good writer. Furthermore, the description of the accident on the form and the answer to question number 9 suggests the likelihood of collaboration with the defendant. In the light of the plaintiff’s and Garda Connolly’s evidence it is impossible to avoid the inference that for whatever reason there has been collusion between the defendant and Mr. Roche for the purpose of establishing the innocence of the former as to responsibility for the accident by way of deliberately false testimony at least on the part of the defendant. This sinister conduct raises an issue as to whether in all the circumstances the plaintiff is entitled to exemplary damages arising out of the reprehensible behaviour of the defendant. I am satisfied that he is entitled to be compensated on that basis. In coming to that conclusion I have also taken into account the persistance of the defendant in falsely swearing that after the accident the plaintiff smelt of alcohol.
12. The law as to exemplary damages in this jurisdiction is defined in the judgments of the Supreme Court in Conway -v- Irish National Teachers Organisation [1991] 2 I.R. 305. Finlay C.J. specified the three headings of damages in Irish Law which are “potentially relevant to any particular case”. The third category he described as follows:-
“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.”
13. See also my judgments in Lyons -v- Elm River Limited and Another delivered on 16th February 1996 (unreported) and F.W. -v- British Broadcasting Corporation delivered on 25th March 1999 (unreported).
14. I have no doubt that the facts which I have found bring the instant case within the ambit of the foregoing precept ennunciated by Finlay C.J. in Conway -v- I.N.T.O. and amply justify an award of punitive damages.
INJURIES
15. It is not in dispute that the plaintiff suffered a significant soft tissue whiplash injury involving his neck and shoulders. There is also a lesser injury affecting the lumbar spine but that may not be wholly associated with the accident. The plaintiff travels about 40,000 miles a year in connection with his practice as a solicitor and this causes him substantial discomfort and pain which comes on in the evening. He continues to require four or five analgesic tablets a week. Cold weather causes pain. He has had substantial periods of physiotherapy which has not brought about much improvement. The plaintiff was referred to Mr. Martin Walsh, orthopaedic surgeon, who comments in a medical report that:-
“His work which entails a significant amount of travel as well as sitting at a desk has tended to aggravate and perpetuate his complaints to some extent but as outlined I anticipate a full recovery in due course.”
16. Dr. Desmond McManus, who continues to treat the plaintiff, gave evidence and expressed the opinion that the whiplash injury suffered by him is one from which he will ultimately make a complete recovery but it may take up to five years for that to come about. It is evident that the plaintiff’s working pattern is tending to militate against him and I accept that he is suffering a significant degree of ongoing pain and discomfort which may continue for another year or so.
17. Special damages have been agreed at £4,750.00. I assess general damages for pain, suffering and disablement up to now and into the future at £30,000.00. I assess exemplary damages at £7,000.00 making in all the sum of £41,750.
Guckian v. Genport Ltd.
[2000] IEHC 77 (2nd November, 2000)
JUDGMENT of Mr. Justice Diarmuid O’Donovan delivered on the 2nd day of November, 2000
1. At the time of events which gave rise to this claim, the Plaintiff, Michelle Guckian, was a single lady, then nearly 27 years of age, who hailed from Carrick-on-Shannon in the County of Leitrim and was just about to embark upon a new career with the North Western Health Board; employment she was due to commence on the 15th of May 1995. Since then, Ms. Guckian has married a man named Reynolds and, of course, she is now 32 years of age and she comes before the Court seeking damages by way of compensation for injuries which she suffered at about 1 o’clock a.m. on Friday the 28th of April 1995 as a result of a fall which she experienced at the entrance to a Nightclub called Raffles which is located in the basement of the Defendant’s hotel at Morehampton Road in the City of Dublin. That Ms Guckian experienced such a fall and that, as a result of it, she suffered serious injury was not challenged by the defence at the hearing before me. However, there was considerable controversy about the whys’ and wherefores’ of the Plaintiffs fall. In that regard, the Plaintiff gave evidence that, earlier that evening, she had attended Kiely’s Public House in Donnybrook with a number of friends and, from there, they repaired by taxi to Raffles Nightclub in Morehampton Road. In this regard, I think it relevant to note that, despite the fact that the Plaintiff had spent some time in a public house prior to the event which gave rise to her claim, it was never suggested on behalf of the defence that her capacity to comport herself was in any way affected by the consumption of alcohol and she, herself, volunteered that she was in no way affected by drink on the occasion; an assertion which I accepted without reservation. Ms. Guckian gave evidence that, when her taxi arrived at Sachs Hotel, while her friend, Eleanor McKenna, was paying the taxi man, she headed for the nightclub which, as I have indicated, is located in the basement of the hotel and is accessed by a flight of eight tiled steps. In that regard, I had the benefit of seeing photographs of those steps taken by Mr. Joseph Earley, an engineer, who gave evidence on behalf of the Plaintiff; photographs which, I think, speak for themselves and from which it is clear that the handrails on either side of that flight of steps and the handrail in the centre of it give no practical assistance to anyone descending the steps; a fact which Mr. Earley confirmed and which I accept to be so. However, that is by the by.
2. The Plaintiff gave evidence that she had frequented Raffles Nightclub many times previously and that she was familiar with the layout of the premises and, in particular, with the nature of the entrance to it and I saw reason to doubt her evidence in that regard. In particular, she told me that there are two gates located at the entrance at the top of the flight of steps which leads to the nightclub and this, of course, is borne out by the photographs taken by Mr. Earley. Ms. Guckian told me that, on the night in question, both of those gates were open and, although it was put to her under cross examination, and very strongly put to her at that, that, not only was the left hand gate, as one approached the nightclub, closed on the night in question, but that it was the invariable practice of the nightclub to keep that gate closed when the nightclub was operating; a practice with which it was suggested that she should have been very familiar, given that she conceded that she frequently visited the nightclub, she was adamant that, at the material time, both of those gates were open. Moreover, she was not prepared to say otherwise even when it was put to her that, as happened, several witnesses associated with both the nightclub and with the hotel; in particular Mr. Philip Smyth, who was the proprietor of the hotel at the material time, Mr. Louis O’Doherty – Campbell, who is the Manager of the nightclub, Mr. Michael Nolan who is employed as a “bouncer” at the nightclub and who, habitually, opened the gate at the entrance to the nightclub on evenings on which the nightclub was operating, a Mrs. Beirne who is a Manager of Sachs Hotel, Ms. Louise Cullen, a cashier in the hotel and Ms. Brenda Flood who was the General Manager of the hotel at the material time, would all swear that it was the invariable practice that the left-hand gate at the entrance to the nightclub would be closed on evenings on which the nightclub was operating. On the other hand, Ms. Eleanor McKenna who accompanied the Plaintiff to Raffles Nightclub on the evening in question, while she conceded that she did not really recall the gates at the entrance, she was fairly sure that there was no gate at the entrance which was closed. Moreover Mr. Brendan Guckian, a brother of the Plaintiff, who had arrived at the nightclub sometime before the Plaintiff’s arrival was insistent that, at that time, both of the gates at the entrance were open.
3. Initially, it seemed to me that the question as to whether or not one or more of the gates which were located at the top of the steps leading to the nightclub was open was much ado about nothing. However, as the hearing progressed, the importance of this question became very evident.
4. The Plaintiff gave evidence that, as she passed through the entrance at the top of the steps leading to the nightclub, her left foot caught against something as a result of which the leg went back; as she put it “like elastic” and that she was then thrown forward and ended up at the bottom of the steps. She said that her foot was caught as she passed through the centre of the entrance and, while she could not identify what had caused her foot to be caught (the severity of the injuries which she had suffered having prevented her, following her fall, from inspecting the place at which her foot had been caught) she was convinced that it was due to some irregularity of the surface of the entrance to the nightclub. This suspicion was confirmed in her own mind when, a few days after her accident, she was shown the flat shoes which she had been wearing at the time of her fall and discovered that the sole of the left had shoe had been torn off. The Plaintiff’s evidence with regard to the condition of her shoes after her accident was never challenged by the defence and, accordingly, I see no reason to doubt it.
5. On the 10th of May 1995; some 12 days after the Plaintiff’s accident, Mr. Joseph Earley, the engineer, who gave evidence on behalf of the Plaintiff, visited Sachs Hotel with the Plaintiffs’ Solicitor, Mr. Conal Gibbons. Although he did not at that time have the permission of the Defendants to carry out a detailed examination of the steps leading to Raffles Nightclub, he took the opportunity of taking a photograph of the entrance to the nightclub and that photograph clearly shows a defect in the tiling at the centre of the entrance at the point where the two entrance gates meet when the gates are closed, which was also the point at which the Plaintiff said that her foot was caught. Mr. Early gave evidence which was not challenged and which I have no reason to doubt that the defect comprised a depression some 5 – 6 inches wide and ½ inch deep arising from the fact that portion of the tiling was missing and, while he conceded that he had not had the opportunity of inspecting that defect in detail, it was his view, from what he could see of it, that the sole of a shoe could catch on the edge of the step from which the tile was missing and, accordingly, that the incident described by the Plaintiff was consistent with the sole of her shoe having been caught at the edge of the step at which the defect in the tiling was located. Mr. Earley had the opportunity of carrying out a detailed examination of the entrance to the nightclub on the 10th of May 1996 and he took photographs of what he found on that occasion; photographs which demonstrate that the defect which was evident in the photograph which he took on the 10th of May 1995 had been repaired. Nevertheless, when, by letter dated the 10th day of December 1998 addressed to the Defendants’ then Solicitors, Messrs. Becker Tansey & Company, the Plaintiffs’ solicitors requested voluntary discovery of all records relating to the maintenance and or repair of ( inter alia) the entrance and/or steps leading to the nightclub, they were advised by the said solicitors by letter dated the 22nd of January 1999 that no repairs had been carried out at the location in question during a period of three years prior to the Plaintiff’s accident or during the subsequent 12 months; an assertion which was repeated in a letter to the Plaintiffs solicitors dated the 13th of April 2000 from Mr. Keith Smyth, the solicitor, who was then acting for the Defendants’. In the light of the photographs produced by Mr. Earley, it is clear that both of those assertions are untrue; a fact which Mr. Philip Smyth, the proprietor of Sachs Hotel at the material time, conceded when he came to give evidence. In that regard, by the way, it is noteworthy that, although Mr. Smyth also conceded that, in the month of July of this year, he became aware of the fact that the assertions in the said letters of the 22nd of January 1999 and the 13th of April 2000 to the Plaintiffs’ solicitors were untrue, he did not see fit to appraise the Plaintiffs’ advisors of that fact until he came to give evidence at the hearing. In my view, it is intolerable that he should have delayed for so long to appraise the Plaintiffs’ advisors of the misstatements in those two letters and, to be quite frank, I have grave reservations that Mr. Smyth was not aware of those misstatements long before he concedes that he became aware of them. I say this because it seems to me that the defect in the step at the entrance to the nightclub, as it appears from the photograph taken by Mr. Earley, is a very obvious and visible one; a view which was supported by Mr. David Bolger, who was employed by the Defendants as a maintenance man at the material time, when he came to give evidence, and, allowing that there was evidence on behalf of the defence that a large number of people were accustomed to traversing the entrance to the nightclub on a regular basis (Mr. Philip Smyth gave evidence that some 3,500 patrons attend the nightclub each week) and that it is clear that the defect which was photographed by Mr. Earley was repaired sometime after Mr. Earley saw it, I am satisfied that it must have been seen by some member of the Defendants’ staff and, that being so, I find it difficult to accept that its existence would not have been brought to the attention of senior members of the staff, like Mr. Smyth, or Mr. Doherty-Campbell, or Ms. Flood before instructions were given to write the letters of the 22nd of January 1999 and the 13th of April 2000 to the Plaintiffs’ solicitors. According, I have reservations about the explanations given by Mr. Smyth and by Ms. Flood with regard to the circumstances under which those two letters came to be written and given that, were it not for the fortuitous fact that Mr. Earley had photographed the defect in the step on the 10th of May 1995, a fact of which the Defendants do not appear to have become aware until the month of July of this year, those letters could well have persuaded the Plaintiffs’ advisors that the Plaintiff did not have a sustainable case, in which event they might well have advised her not to proceed with her action, I am afraid that I question the bona fides of the instructions which led to those two letters being written. However, that is by the by. Apart from asserting that both of the gates at the top of the steps leading to Raffles Nightclub were open when she arrived at the nightclub on the fateful evening; an assertion which, as I have indicated, was strongly challenged by the Defence, the Plaintiff also maintained that, on her arrival, she saw a doorman standing at the bottom of the steps outside the left-hand door which led into the nightclub and that, after her fall, that man was not particularly sympathetic or helpful, in that, as far as she was concerned, he appeared to be more worried about the fact that her presence at the bottom of the steps was preventing patrons from entering the nightclub than he was about the fact that the Plaintiff was complaining that she was in considerable pain. In fairness to this man, I have to acknowledge that the Plaintiff’s friend, Eleanor McKenna, said that this man helped to keep people away from the Plaintiff and was also instrumental in getting assistance for her. However, apart from seriously challenging the Plaintiff’s assertion that both of the gates at the top of the steps leading to the nightclub were open when she had arrived at the nightclub on that fateful evening, her evidence that, when she arrived, there was a man standing at the bottom of steps outside of the nightclub was also seriously challenged and it was put to her in no uncertain terms and, indeed, was also put to her friend, Eleanor McKenna, that that just was not true. Moreover, the Defendants introduced video evidence of film taken on the night in question which they maintained demonstrated that the four “bouncers” employed by the nightclub remained inside the club at all material times thereby giving the lie to the evidence of the Plaintiff and to that of Ms. McKenna that there was a man, who they described as a doorman, standing outside the nightclub at the time of the Plaintiff’s fall. It was also submitted on behalf of the Defence that that video film gave the lie to evidence by Ms. McKenna that, shortly after the Plaintiff’s fall, she noticed that the left hand door, as one faces the nightclub, was open and, in that connection, it is relevant to note that the Plaintiff, herself, when cross examined about the condition of the doors leading into the nightclub at the time of her fall, she conceded that she could not recall whether or not either of those doors was open at that time. However, she was adamant that, when she fell, she had not collided with the right hand door leading into the nightclub; it having been suggested to her that it was the noise of that collision that had alerted those inside that there was something amiss outside rather than that there was a member of the staff outside at the time of the Plaintiff’s fall. Again, it was suggested that the video film was corroborative of the fact that the Plaintiff had collided with the door because it was suggested that it showed her lying on the ground very close to the door and not against the bottom step, as she had given evidence. It was also suggested that that video film gave the lie to Ms. McKenna’s suggestion that the left hand door leading into the nightclub had been open at any material time.
6. Having considered the video film shown by the Defendants’ very very carefully; including requesting that certain portions of it be re-run, I am not persuaded that it establishes all of the matters which the Defence contend for. Certainly, it seemed to demonstrate that most, if not all, of the Defendant’ staff spent the night inside rather than outside of the nightclub but, if it did, Mr. Michael Nolan, who has been employed by the Defendants as a bouncer at Raffles Nightclub for some 18 years, told me that the atmosphere in the nightclub can become very warm and, accordingly, that, from time to time, some bouncers go outside for fresh air and, in my view, it could well be that that was what the man who the Plaintiff and Ms. McKenna said was outside of the nightclub when they arrived was doing but in any event , despite the evidence of the video film, I have no doubt at all that there was a doorman standing outside of the nightclub when the Plaintiff and her friend arrived because, for the life of me, I cannot see any reason in the world why they would invent such a story. On the evidence of the video film, I am prepared to accept that both doors leading into the nightclub were kept closed most of the time and that Ms. McKenna may have been mistaken when she said that she thought that the left-hand door had been open for an appreciable period. However, in my view, that is neither here nor there. So far as the allegations that the Plaintiff collided with the door leading into the nightclub as she fell is concerned, I do not think that the video film supports that conclusion because I saw the Plaintiff’s brother attending her after her fall while she was lying outside the nightclub. In that regard, it seems to me that he was occupying a space between her and the door of the nightclub which suggests to me that she fell some distance away from the door. Again, however, I am not convinced that whether or not the Plaintiff collided with the door of the nightclub as she fell, is of any great significance. I do accept, however, that it is of considerable significance that, contrary to the sworn testimony of virtually every person who gave evidence on behalf of the Defence, the Plaintiff maintains that both of the gates at the top of the steps leading to the nightclub were open when she arrived at the premises. This is so because, obviously, if, as the Defendants assert, the left-hand gate was closed, it would have covered the defect in the tiling which is demonstrated by Mr. Earley’s photograph and, in that event, it would have been physically impossible for the Plaintiff to have caught her foot at that point, as she claimed that she did. Accordingly, if I were to accept that that gate was closed at the material time, I would have to conclude that the Plaintiff had not given an honest account of her accident and that her claim herein must fail. However, notwithstanding the weight of the evidence which has been adduced on behalf of the Defence, I am quite satisfied that Michelle Guckian has described her fall as it occurred and has accurately pinpointed the location at which her foot was caught whereby her fall was precipitated and that that point is the place at which the defect in the tiling shown in Mr. Earleys photograph was located. It follows, of course, that I reject the Defendants’ case that the left hand gate at the top of the steps was closed at the material time. In this connection, I am influenced by the evidence of Eleanor McKenna that, while she did not remember seeing any gates, she was fairly sure that there were no gates closed at the top of the steps and the evidence of Brendan Guckian that, when he arrived at the nightclub a short time before the Plaintiff’s arrival, neither of those gates were closed. In addition, however, I am particularly influenced by the fact that, although, at the Defendants’ request, the Plaintiff on the 20th of December 1996; over three and three quarter years before the trial of this action, marked on a plan which was produced by the Defendants, the point at which she maintained that she had fallen and that point clearly coincides with the point at which Mr. Earley’s photograph demonstrates that the defect in the tiling existed. Yet, although the Defendants maintain that the left-hand gate at the top of the steps leading to the nightclub was always closed when the nightclub was operating so that the Plaintiff could not have tripped at that point, no suggestion in that behalf was made to the Plaintiff; either in correspondence, or, indeed, at any time before she got into the witness box. In my view, if the Defendants believed that that gate had been closed at the material time, they would have left the Plaintiff and her advisors in no doubt about that fact from an early stage. Accordingly, I am satisfied that the Plaintiff’s fall was precipitated by a defect in the tiling at the top of the steps at the entrance to the Defendants’ nightclub; a defect of which the Defendants were aware, or ought to have been aware and, accordingly, should have recognised that it was a potential source of danger to persons frequenting their nightclub; a danger which it seems to me that they took no steps to avoid. Accordingly, I am satisfied that the Defendants are liable in damages to the Plaintiff in respect of the injury which she suffered.
7. Insofar as the Plaintiff’s injuries are concerned, she described how, after her fall, she tried to stand up but found that her left leg was very painful and, as she put it “ like jelly”. Moreover, when she looked at it she saw that the shin bone was protruding which she said was a very shocking experience and I have no doubt that it was. As I have already indicated, the Plaintiff said that the Defendants’ doorman appeared to be more concerned about people coming into the nightclub than he was about her. However, that as it may be. It appears that someone sent for an ambulance which, apparently, took an age to come or, at least , so far as the Plaintiff and her friend Eleanor McKenna was concerned, it appeared to be an age. In any event, when the ambulance arrived, the Plaintiff’s left leg was splintered and she was stretchered into an ambulance and taken to St. Vincent’s Hospital. She said that, at that stage ,she was experiencing a considerable amount of pain. In hospital, she came under the care of Mr. Brian Hurson F.R.C.S.I., who diagnosed that she had suffered a displaced fracture of the left tibia and fibula which required surgery involving manipulation and reduction of the fracture and fixation with an intra-madullary nail. Mr. Hurson described the injury as a very severe one. The Plaintiff gave evidence, which I accept, that she experienced a lot of pain in her left leg, both before and after the operation, and, following surgery, she was detained in hospital for five days and shortly prior to her discharge, her left leg was encased in a plaster of paris cast extending from her hip to her ankle. She was discharged from hospital on crutches and was advised against weight bearing so that, in the weeks following, she was very incapacitated because she had to keep her left leg off the ground and she was in constant pain requiring painkillers on a daily basis. Approximately six weeks after her accident, the plaster of paris was changed to a below knee plaster following which the Plaintiff experienced some relief from the pain which she had suffered. She was still experiencing pain but it was not as bad as it had been. The plaster of paris was removed altogether on the 30th of June 1995; some nine weeks after the Plaintiff’s accident, and she was then told to commence weight bearing which she found to be a very painful experience and one which caused severe swelling of her left leg. She started her new job with the Western Health Board in the month of July 1995, while she was still on crutches which made it very difficult for her to cope with the demands of the job and one would have to agree that that was not the best way to commence a new career. Moreover, for some time she had to be driven to and from work. It was not until Christmas of 1995 that the Plaintiff was able to discard her crutches and, at that stage, apart from persistent pain in her left leg and left heel, she found that the movements of her left ankle were very restricted so that she was prescribed physiotherapy which, in itself, she said was a painful experience. She had to submit to physiotherapy for some months; at first on a daily basis but reducing gradually and she found that it helped to alleviate her pain and to restore movement to her left ankle. However, even after the physiotherapy she was not free of pain and she walked with a limp and she, herself, associated her ongoing problems with the nail which had been inserted by Mr. Hurson so she asked him could it be removed. For his part, Mr. Hurson thought that the nail had served its purpose, in that, he was satisfied that the fracture had healed in a satisfactory position. Accordingly, on the 29th of January 1997, Ms.Guckian was readmitted to hospital where the hardware in her left ankle was removed. On that occasion, she spent only a day in hospital but she could only mobilise with the assistance of crutches for a few weeks afterwards. She experienced a considerable improvement, both insofar as comfort and freedom of movement was concerned following the removal of the hardware.
8. Since early 1997, the Plaintiff gave evidence that, from time to time, she has the feeling that her left leg is giving under her. While Mr. Hurson, whose reports I have had the benefit of reading, does not mention this problem, I accept the Plaintiff’s evidence in that regard. However, if I do, I think that, as Mr. Hurson has not referred to it, it is unlikely to be a long term problem for Ms. Guckian.
9. The present situation, insofar as the sequilae of her injuries is concerned is that the Plaintiff’s left leg is sensitive to trauma and I assume that that is going to be a permanent feature. Furthermore, she has residual scarring on her left knee and left ankle which, although readily visible, are not, in my view, particularly disfiguring in the ugly sense of the word. However, the Plaintiff, herself, tells me and I accept that she prefers not to have those scars on view and, therefore, covers them with clothing. In this regard, bodily scars are a very personal matter for those who have them and I do not doubt the genuineness of the Plaintiff’s displeasure at having these scars through no fault of her own. Moreover, apart from the appearance of the scars, the Plaintiff tells me and I accept that she experiences pins and needles in the scar on her left knee and that , on account of that scar, she cannot kneel on that knee. In that regard, she was particularly upset at the fact that she was unable to kneel on the occasion of her wedding some two years ago. Furthermore, the Plaintiff complains that she experiences a locking sensation in her left knee and pain and restriction of movement of her left ankle; particularly, when it is cold. However, in the light of Mr. Hurson’s opinion in his report of the 20th of November 1998 (the latest report with which I have been furnished) and given that the Plaintiff, herself, conceded under cross examination that she has not had cause to consult a doctor with regard to her injuries for over two years now, I assume that her ongoing symptoms of pain and stiffness will abate in the relatively near future and will not be a long term problem for her. However, it is now nearly five and a half years since her accident and, allowing for all that she has had to put up with during that period; as Mr. Hurson says, she had a turbulent rehabilitation, I think that a sum of £30,000.00 would fairly compensate her for damages to date. As for the future, given that she will have permanent scars on her left knee and left leg which she, understandably, does not like although, as I have indicated, they are not particularly disfiguring, that the site of her fracture is always likely to be sensitive to trauma and that I have no reason to believe that she will ever again be able to kneel with comfort, I think that a sum of £20,000.00 for general damages for the future would be appropriate.
10. In the light of the manner in which the Defendants met this claim and, particularly, the fact that they appear to have attempted to hide the fact that there was a defect in the tiling at the entrance to their nightclub at the material time, I was sorely tempted to accede to an application on behalf of the Plaintiffs’ advisors to award punitive or exemplary damages in this case. However, somewhat reluctantly, I am not persuaded that, reprehensible thought it was, the Defendants’ conduct was sufficiently inappropriate to justify such an award.
11. In the light of the foregoing, therefore, and allowing that special damages have been agreed in the sum of £1,500.00, there will be Judgment for the Plaintiff for £51,500.00 and costs.
Dated this 2nd day of November, 2000.
Signed___________________________
The Honourable Mr. Justice Diarmuid B O’Donovan.