Battery & Assault
Cases
Corcoran v. W. & R. Jacob & Co.
[1945] IR 446 Murnaghan J.
This is an appeal brought by the defendant company against a verdict and judgment for £500, damages, in an action tried before the President of the High Court, in which the causes of action which went to the jury were: 1, slander, and 2, assault.
The respondent, Corcoran, was for many years employed by Messrs. W. & R. Jacob & Co., Ltd., and, as a result of the incidents which led up to the trial, he lost his position there, and brought this action. The action also included a claim for damages for wrongful dismissal, but it was admitted at the trial that the plaintiff could not sustain any claim founded on wrongful dismissal.
Now, in Messrs. Jacob’s factory it is the custom to employ commissionaires. We do not live in an ideal world, and hence the firm employ men whose duty it is to examine employees with a view to ascertaining whether they have taken property of the firm. It is admitted by both sides that the commissionaires carry out their duty for that purpose.
On the 17th September, 1943, the respondent, a storekeeper in the appellants’ employment, went into the city on messages on behalf of the company. He had to make two calls. On his discovery that he had forgotten a parcel he returned to the factory after the first call. While he was at or near the gate he was accosted by a commissionaire, Noonan. As a result of his conversation with Noonan he went into an office adjoining the entry, where the events occurred which gave rise to his claim for assault. Some time later Noonan, in the presence of Mr. Smurthwaite, the firm’s welfare officer, the respondent and another man, named Pearse, made a statement which is the subject of the slander claim.
As regards the respondent’s claim for damages for slander the President of the High Court ruled that the words complained of were spoken on a privileged occasion, and the only question raised in this Court is whether or not there was sufficient evidence of malice to go to the jury. The slander was treated as the important issue at the trial.
This Court must have regard to the fact that the jury were entitled to accept the view of the evidence most favourable to the respondent, no matter how it differed from other evidence given in the case. In his evidence the respondent said that on his return to the factory he purchased a copper shovel, and carried it on his bicycle until he reached the factory, where he removed it from the bicycle and put it inside his clothes in a way which was the subject of much discussion in this Court and at the trial. He said himself that it was inside his trousers and dungarees, over which he wore his coat and overcoat. The commissionaire asked him what he had inside his coat and Corcoran said he had a shovel. The commissionaire then asked him to come to the office to be searched. Having gone into the office the respondent says that he proceeded to remove the shovel to show it to Noonan. He also makes statements suggesting that both coats were open, but admits that he had difficulty in getting out the shovel. He says Noonan made a sudden rusha “power dive”at him and pulled his clothes about. The respondent resented that, buttoned his coat, and refused to allow the search to proceed, and went away.
On the commissionaire’s reporting the matter to Mr. Smurthwaite, whose duty it is to investigate such complaints, all of the parties congregated about an hour later in the office of Mr. Smurthwaite. There Noonan made use of the words complained of, viz., “It was a piece of copper ten or twelve inches long that Corcoran had.” Corcoran stoutly maintained that it was a shovel. Comment has been made on the fact that he did not say that he had purchased it whilst he was out on his messages.
Now, it is admitted on this appeal that the words used are defamatory, that they meant that Corcoran had stolen property belonging to the company, and, as the words were not justified, they were actionable unless the circumstances justified Noonan’s using them. The occasion was one in which, even if he made a statement which was not true, he would not be liable if the statement were made in such circumstances that he honestly believed it to be true. The learned President of the High Court having ruled that the words were spoken on a privileged occasion, the defence was complete unless the respondent could show that the words were spoken maliciously, that is, spoken with some indirect or improper motive.
The whole case turns on whether the jury could reasonably infer from the evidence that Noonan was actuated by malice. After Corcoran’s dismissal letters passsed between the respondent and his solicitor and the company’s solicitor. In one of those letters Corcoran mentioned “spite of which he had evidence.” At the trial, however, he gave no evidence of such spite. The only suggestion of actual malice was in the course of the cross-examination of Noonan. It was, I think, suggested that Corcoran had detected Noonan shaving in the factory contrary to the regulations. Noonan denied all this, and there was no other evidence whatever which would suggest ill will in relation to the occurrences in issue in the case.
Then, it was said, Noonan’s demeanour in the witness box was evidence of malice sufficient to support the respondent’s claim, and it was contended that the jury, on his demeanour and the evidence which he gave, were entitled to find that he was actuated by malice. With reference to Noonan’s demeanour in the witness box I do not think there is anything substantial in it to justify a jury’s finding of malice. Undoubtedly, he said, when pressed in cross-examination,.
that the respondent’s witnesses were telling lies, but I think that was an asseveration that he was telling the truth on points on which he was contradicted. It was also argued that Noonan maintained at the trial that Corcoran had a piece of copper long after the company had stated that they did not make any charge against Corcoran. In fact, it is urged that the evidence shows that Noonan persisted in what he knew to be false. There is no doubt that Corcoran’s evidence contains expressions indicating that the handle of the shovel was sticking out of his clothes, and that his coats were open, but he also states that he had difficulty in removing the article. There was also the evidence of Pearse, who was present in the office when Corcoran was, being searched. I do not, however, accept Pearse’s evidence as meaning that the article was obviously a shovel. In one account of Pearse’s evidence it is said”He thought it was a shovel,” and a somewhat different expression is used in the statement written by Pearse. Unless the respondent’s evidence was such that the jury would be entitled to say it was impossible for Noonan to see this was anything but a shovel, I do not see how the jury could reasonably find that Noonan’s conduct was not founded on an honest belief.
Taking the respondent’s evidence in a fair and reasonable way, I fail to see any evidence on which the jury could find Noonan guilty of malice.
Accordingly, I am of the opinion that there was no evidence on which a jury could say that Noonan was guilty of malice on the ground that he had not an honest belief in his actions, and hence, on the slander issue, the defendants are entitled to judgment. That disposes of the slander claim.
As regards the respondent’s claim in respect of an alleged assault, booklets have been produced here, and evidence was given at the trial of notices exhibited in the factory, showing the firm’s regulations as to their employees’ liability to be searched. As I understand it, the case proceeded on the basis that Corcoran agreed that he was liable to search, as that word is ordinarily understood. There was no limitation of the right of the searcher to put his hands upon the person searched.
The only question which arises, then, is whether there was any unnecessary violence used in Noonan’s search of Corcoran. The respondent spoke of a “power dive.”That is ambiguous, but might lead a jury to believe that excessive strength was used which might be unreasonable in the circumstances. The appellants’ servant said he only used such force as was necessary, and desisted when objection was made, and it is agreed that he did at once desist. My view is that this is a question of fact, in one sense, for a jury. I do not think the mere pulling about of his clothes was such as in any way injuriously to affect the respondent. He was not injured, but merely lost a button. Counsel for the appellant practically admit that it was a question for the jury whether any unnecessary violence was used, and in these circumstances, I do not think that the Court should interfere with the jury’s findings on this issue.
At the trial the jury awarded the sum of £500 damages for both claims, and there was no segregation of amounts. It is impossible for this Court to segregate the amounts assessable to the respective claims, and, accordingly, the jury’s finding as to the amount of damages will be set aside, and the case must be remitted to the High Court on the assault issue for the assessment of damages by a jury.
In the result, the appeal, in my opinion, should be allowed with costs, and judgment entered for the applicants in the issue of slander, and the case must be remitted to the High Court to assess damages on the claim for assault.
In form, judgment should be entered for the appellants in the claim for wrongful dismissal.
GEOGHEGAN J. :
I concur.
O’BYRNE J. :
I concur with the judgment just delivered by Mr. Justice Murnaghan concerning the slander issue for the reasons he has given.
As regards the assault issue I understood counsel for the appellants to concede that the jury’s finding of liability for assault might stand. Accordingly, I concur with the jury’s verdict on that issue.
BLACK J. :
Under our system of law a jury’s verdict is looked upon as sacrosanct for several reasons: they hear the direct evidence in the first instance, they can observe the witnesses and they must form and act upon their own view of what the evidence in their judgment proves. We, therefore, have only to consider whether the jury’s finding of malice in this case is reasonable, and not perverse.
[
What is the meaning of the word “perverse?” FitzGibbon L.J., in Quinlane v. Murnane (1), says, at p. 59:”The meaning of the word ‘perverse’ is that the jury misconducted themselves in coming to the conclusion they did.” Accepting that definition, in my opinion this appeal cannot succeed on the ground of the perversity of the verdict.
Is the jury’s finding of malice here unreasonable? There was evidence of the assault, and the jury may have come to the conclusion that excessive zeal was used. In my view the respondent’s story of the assault was credible, and, therefore cannot be disturbed by this Court.
Now, if the jury believed that the commissionaire, Noonan, falsely concealed the fact that what he had seen was not merely a sheet of copper, but a shovel, his accusation would have been false, and the verdict could not be said to be unreasonable. There were two portions of the evidence which could have enabled the jury to find malice, viz., first, the respondent’s evidence that the handle of the shovel was protruding from his clothes so that it was clearly visible to the commissionaire, and the second was the commissionaire’s evidence that he saw a brightly coloured piece of copper about twelve inches square. The jury may have disbelieved Noonan when he said he did not see a shovel, and I cannot say that the jury acted unreasonably if they came to the conclusion that Noonan was lying. Furthermore, I can find nothing intrinsically incredible in the respondent’s story and, therefore, I cannot say the jury acted unreasonably in accepting it. I have not had the opportunity of seeing the witnesses, and the jury had.
In my opinion there was evidence to support the jury’s finding of malice and, accordingly, I think this Court should not disturb that finding.
Dullaghan v Hillen and King
[1957] Ir Jur Rep 10 (CC, 1956)
Judge Fawsitt: In his civil bill (claiming damages) the plaintiff alleges inter alia that (1) he was assaulted and beaten; (2) held prisoner and arrested; and (3) maliciously prosecuted by the defendants.
In their joint defence the defendants deny inter alia that (1) they assaulted and beat the plaintiff; (2) they held the plaintiff prisoner or had him arrested; and (3) they subsequently maliciously prosecuted him.
In further defence the defendants aver that (4) if the defendant Hillen assaulted or beat the plaintiff he did so in necessary self-defence; (5) if the defendants held the plaintiff prisoner or procured his arrest or detention they did so in discharge of their duty as officers of customs and by virtue of the powers and duties conferred on them by the Customs Acts.
What are the facts and circumsances that give rise to his claim?
County Louth is a border county. It is notorious as the scene of much cross-border smuggling. To prevent this unlawful activity the State has stationed a number of preventative officers of customs, including the present defendants, at Dundalk, whose duty it is to prevent smuggling of certain classes of merchandise and livestock into and out of the State in their area of jurisdiction. These officers are supplied with a distinctive uniform not customarily worn by them when on patrol duty. For the purposes of transport to and from the land frontier or border certain main roads are classified as “approved” roads, whilst other roads also leading to and from the border are classified as “unapproved” roads. Merchandise and livestock lawfully leaving or entering the County Louth by or from the border are transported over “approved” roads only; it is notorious that the “unapproved” roads are those used by persons engaged in the unlawful cross-border smuggling racket. Among other duties and powers imposed by statute and statutory regulations upon officers of customs, in the County Louth area, is one authorising such officers to stop and examine vehicles travelling upon a route within twenty miles of the land frontier (popularly called ”the border”). For the more efficient discharge of their onerous duties the State provides motor cars for preventative officers of customs, thereby enabling them to patrol both “approved” and “unapproved” roads leading to and from the border. These cars carry no distinctive marks or badges to distinguish them from privately owned motor vehicles.
On the 24th September 1954, the plaintiff was driving a hired motor van along an unapproved road in the direction of Kilkerly in this County; that is to say the van was being driven at the time by him from the direction of the border. It was a van which had previously been seized by customs officers when it was found to be transporting into County Louth smuggled fish allegedly landed at a County Louth port. The van was known to certain officers of customs, including the defendant, Francis Hillen. At the same time on the same day a customs officer’s motor car driven by the defendant John King, the senior officer of the party, and carrying the defendant Hillen and two other assistant preventative officers, Messrs Gallagher and Farren, was proceeding along the same “unapproved” road towards the border. Both vehicles passed each other and, it appears, that the van was recognised by one of the customs officers in the car, whereupon the driver, King, stopped it, turned it round on the road, and drove it after the receding van. On its journey the van’s progress was hindered by a flock of sheep then being driven from the Kilkerly direction, and it stopped to allow the sheep to pass by in safety. Whilst so stopped, the following customs car overtook the van, and it stopped immediately behind the van. There was evidence that all four customs officers immediately left the car and proceeded towards the van, one officer proceeding to the left of the van, another, the defendant Hillen, to the right of the van. A third officer went to the back door of the van. This case has arisen out of what occurred immediately afterwards. What had occurred prior to this point on both vehicles’ journeys was made the subject of a separate summons against the plaintiff for an alleged offence under s 13 of the Adaptation of Enactments Act 1922, for a breach of article 11(2) of the Customs (Land Frontier) Regulations 1923. The said summons was brought by order dated 28th September 1954, made by the Revenue Commissioners. It was heard by the Justice of the District Court sitting at Dundalk on the 20th October 1954. The summons charged the defendant (the plaintiff in this action) that at Newtownbalryan, County Louth, he, on the 24th September 1954, “being the person in charge of a vehicle travelling upon a route within 20 miles of the land frontier did fail, upon request by a customs officer, to stop such vehicle and allow such officer to examine the said vehicle and any goods therein and to take an account of such goods”. The complainant in the summons was the Attorney General. After hearing evidence on behalf of the complainant, the learned District Justice dismissed the summons. From that order no appeal was taken to the Circuit Court. At the same sitting of the District Court two further summons, each brought by the Attorney General as complainant, were heard by the same District Justice against the present plaintiff. The District Justice convicted him on both charges, viz: (1) on a charge that he did on the 24th September 1954 … obstruct officers in discharge of their duty contrary to section 12(5) of the Customs and Inland Revenue Act 1881, and (2) on a charge that he did on the 24th September 1954 … assault Francis Hillen, Officer
of Customs and Excise, a person employed for the prevention of smuggling and in the discharge of his duties, contrary to section 12(5) of the Customs and Inland Revenue Act 1881. Each such conviction carried with it a penalty of £5.0s.0d, and in default two months’ imprisonment. From each of these two convictions and orders the present plaintiff appealed to this court on its criminal side. Both appeals were listed before and heard together by me in this court house, on 21st March 1955. At the close of the evidence for the complainant in each summons, counsel for the present plaintiff applied to me for a direction in each case, and after hearing him and counsel for the complainant in reply, on the facts and the relevant law, I granted the direction asked for and in each case I allowed the appeal of the plaintiff and reversed the order of the learned District Justice and dismissed the summons.
The matters at issue between the respective parties then stood as follows: The complainant had failed to prove to the satisfaction of the District Court that the plaintiff:
(1) had failed upon request by a customs officer to stop the van which he drove at Newtownbalryan, County Louth, on 24th September, 1954, and allow such officer to examine the said van and any goods therein, and to take an account of such goods; (2) on the same date and place, obstructed officers in discharge of their duty, contrary to section 12(5) of the Customs and Inland Revenue Act 1881 and; (3) on the same date and place, assaulted Francis Hillen an officer of customs and excise in the discharge of his duties, contrary to s 12(5) of the Customs and Inland Revenue Act 1881. In effect, all that this means, is that, since the criminal issues, charges as laid must be strictly proved, the strict proofs required had not been produced in the District Court or in the criminal side of this court, and the three charges as laid had therefore to be dismissed, one by order of the District Justice and two by order of this court. The same strictness of proof is not required or called for on the civil side of our court of law, where probabilities as well as facts are taken into consideration when weighing up the evidence on one side and the other tendered before the court. I am, here, dealing, not witha criminal or quasicriminal charge or matter, but with a civil action for damages.
I propose to deal in this judgment, firstly, with the claim based on the alleged assault and battery …
Assault and battery: Security for the person is among the first conditions of civilised
life. The law, therefore, protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present (immediate) apprehension of any of these things. Blackstone said: “the least touching of another’s person wilfully, or in anger, isa battery; for the law cannot draw the line between different degrees of violence and, therefore, totally prohibits the first and lowest stage of it; every man’s person being sacred and no other havinga right to meddle with it in any the slightest manner.” Battery indicates assault, and the word “assault” is to-day commonly made to include battery. Hostile or unlawful intention is necessary to constitute an indictable assault, and such touching, pushing or the little as belongs to the ordinary conduct of life and is free from the use of unnecessary force, is neither an offence nor a wrong. Words cannot of themselves amount to an assault, under any circumstances. When one is wrongfully assaulted, it is lawful to repel force by force, provided that no unnecessary violence is used. How much force and of what kind it is reasonable and proper to use, in the circumstances, isa question of fact. Resistance must “not exceed the bounds of mere defence and prevention”, or that the force used in defence must be not more than commensurate with
that which provoked it.
The plaintiff alleged in his civil bill, and testified in court, that the defendant, Hillen,
both assaulted and beat him. It is implicit in the joint defence that the defendant, Hillen, did assault and beat the plaintiff. The first question which I have to determine is: did Hillen beat the plaintiff in self-defence? In addition to hearing the evidence on the issues of assault and self-defence, I saw both protagonists on the witness stand in this court, and so had opportunity to note their respective physiques as well as their dimensions, intelligence, alertness, et cetera. In a ring-match or a fracas, my money (ifI had any to spare and werea betting man) would be placed on Francis Hillen. On the date and at the place in which this action is laid, the defendant Hillen, clearly and convincingly demonstrated his superior skill, strength and fisticuff agility in his short one-round encounter with the plaintiff. The scandalous scene in that public highway is one to be regretted and, above all, one to be avoided by a state servant, acting, as it is claimed for Hillen he was acting on that morning and place, in the discharge of his duty as customs officer.
…….
I have to find that the defendant, Hillen’s approach and address, on the occasion was not a polite approach or address, nor was it an approach or address in keeping with his status of public servant and officer of customs. He was engaged in an unpopular and risky task,and ought to have exercised a wise, a scrupulously careful and a forbearing discretion towards the plaintiff. Mr Hillen forgot one of the chief golden rules of public co
nduct, namely, to speak to others as you would be spoken to by them. Passions were not confined to one side only, as became manifest when in reply, the plaintiff uttereda filthy and insulting remark towards Hillen, which still further inflamed Hillen’s temper. But for this agitated state of mind Hillen would, no doubt, have recollected the commonplace but trite couplet which runs: “Sticks and stones may break your bones but words will never hurt you”, and in which there is a definition of the law of assault, namely that mere words, no matter how harsh, lying insulting and provocative they may be, can never amount in law to an assault. When the plaintiff refused to withdraw and apologise to Hillen for the insulting words which the plaintiff used towards and of Hillen, the assault on, and beating up of, the plaintiff, by Hillen, immediately followed. The plaintiff, his passion, too, now aroused then made a kick at Hillen which, if it struck Hillen, did him no injury, and could probably in the circumstances, be described as having been made by the plaintiff in his self-defence. Hillen’s rejoinder was a series of brutal blows which he delivered on the nose of the plaintiff, resulting in the breaking of that organ, anda copious and continuing outflow of blood from it. This series of blows by Hillen on the plaintiff’s nose was not delivered by him in his (Hillen’s) self-defence; nor was the beating up of the plaintiff justified by the filthy language employed by the plaintiff towards Hillen; nor was it justified or merited by the refusal of the plaintiff to give his name and address to the customs officers; nor was it done by Hillen in discharge of his duty as customs officer. It was committed by Hillen in excess of the limits of the powerswhich he possessed as customs officer. The plaintiff must succeed …
Hegarty v Shine
4 LR Ir 289
Ball J: This action is brought by a female plaintiff against a male defendant for breach of promise of marriage, and for assault of the plaintiff, and infecting her with venereal disease; and the second, that the defendant assaulted and beat the plaintiff, and infected her with venereal disease. Of the first cause of action (for breach of promise of marriage) there was upon the trial no evidence. The rest of the complaint was founded upon the following facts: Between the plaintiff and the defendant there had for about two years subsisted an illicit intercourse, and during its continuance the plaintiff contracted from the defendant disease. As the questions to be decided by us arise upon the charge of the learned judge before whom the trial took place, and in respect of the view taken by him of the legal considerations applicable to a case of this character, I think it unnecessary to enter into the details of the evidence. There was a verdict for the plaintiff, but, if the jury were misdirected, of course it cannot be upheld. The charge is reported by the learned judge in the terms which I shall now state:
“I charged the jury, carefully reviewing the evidence. Without expressing any opinion on my own part, I adopted as law, and, as applicable to a civil action, the case of Regv Bennett 4 F & F 1105 and Reg v Sinclair 13 Cox CC 28, and I in substance directed the jury, as matter oflaw, that an assault implied an act of violence committed upon a person against his or her will, and that, as a general rule, when the person consented to the act there was no assault; but that if the consent was obtained by the fraud of the party committing the act, the fraud vitiated the consent, and the act became in view of the law an assault; and that therefore, if the defendant, knowing that he had venereal disease, and that the probable and natural effect of his having connexion with the plaintiff would be to communicate to her venereal disease, fraudulently concealed from her his condition, in order to induce, and did thereby induce, her to have connexion with him, and if but for that fraud she would not have consented to have had such connection, and if he had with her the connection so procured and thereby communicated to her shuch venereal disease, he had committed an assault and one for whihc they might on the evidence award substantial damages.”
……. Suppose a woman to live with her paramour, under and with a distinct and reiterated promise of marriage, not fulfilled, nor, it may be, ever intended to be fulfilled
– is every separate act of sexual intercourse an assault? Let the same happen in conjunction with a violated engagement to provide for her maintenance and protection against poverty- does a similar consequence here also follow? No one, I think, would be prepared to answer these questions in the affirmative. In the present case, the fraud relied upon to annul the plaintiff’s consent is the concealment of a fact which if known would have induced her to withhold it; but before this effect is attributed to such concealment, it seems to me reasonable to demand – what is required in contract – that from the relation between the parties there should have arisen a duty to disclose, capable of being legally enforced. And how can this be, when the relation is itself immoral and for the indulgence of immorality; the supposed duty with the object of aiding its continuance? To support obligation founded upon relation, it appears to me the relation must be one that we can recognise and sanction. I do not think these opinions conflict with the cases in Criminal Courts referred to by the learned judge in his charge. Considerations affect prosecutions not applicable to civil actions. In the former we are concerned with public interests and consequent public policy; in the latter, with the reciprocal rights and liabilities of individuals. Mutual consent to a prize-fight might prevent the pugilists having a remedy inter se; but we would not make it less a breach of the peace or exonerate those engaged from punishment.
These reasons, in my opinion, justify the order of the Queen’s Bench Division directing a new trial upon the ground of misdirection by the learned judge. I think it right to add that I also concur with the majority of that court in holding an action of this character cannot be maintained. The consequence of an immoral act – the direct consequence – is the subject of complaint. Courts of Justice no more exist to provide a remedy for the consequences of immoral or illegal acts and contracts, than to aid or enforce those acts or contracts themselves. Some striking illustrations of this are afforded by authorities cited in the argument of this appeal. Thus judges have refused to partition the plunder obtained by robbery, to acknowledge or protect property in an indecent book or picture, to compel payment of the wages of unchastity. Are the same tribunals to regulate the relative rights and duties of the parties to an illicit intercourse? No precedent has been cited, no authority suggested, for an action like the present; andI
am not disposed to make, in the interest of immorality, either precedent or authority for it.
Palles CB: … Two propositions have been advanced on the part of the plaintiff – first, that there was evidence that she did not consent in fact to the act constituting the cause of action; and second, that if she did consent, there was evidence that consent was
procured by fraud. Unless she can establish either of these propositions, the present appeal must fail.
…………..
It is not necessary for the purposes of this case to consider whether the fraud which is sufficient to avoid such a consent must not amount (as it did in the three cases to which I have referred) to a false representation that the thing to be consented to is materially different from that which it really was. The logical result of such a limitation might, and indeed I think would, be that the true ratio decidendi in such cases should be an absence of consent, not its avoidance for fraud. This, however, could not be held without overruling the many authorities which establish that the obtaining possession of the person of a married woman by fraudulently pretending to be her husband does not amount to rape. If these cases are to be reconsidered (which I am far from saying is not desirable), it certainly must be in the Court of Criminal Appeal. Fully adopting, however, the law as laid down in these several cases, and assuming that there can be fraud of such a description as will be capable of avoiding a consent to commit an immoral act, I think it clear that such fraud must consist of active misrepresentation, as distinguished from suppression or concealment. Concealment, although wilful, and resorted to for the purpose of deception, cannot amount to fraud unless a duty be shown to communicate
the fact concealed to the party deceived. In the case of an agreement to commit an immoral act, the sole relation between the parties from which it can be said that a duty to communicate arises is that they have entered into such agreement. From such a relation
– illegal and immoral in itself – no duty can arise; and in the absence of such duty, the concealment is neither fraud nor evidence of fraud. This applies as well to a criminal prosecution as to a civil action.
Applying these principles to the facts of the present case, I am of opinion that there has not been any evidence of fraud, and that for that reason the verdict ought to have been directed for the defendant. In this view the question of necessity of pleading the illegality does not arise.
Assuming, however, for argument’s sake, that there was evidence of fraud; assuming also that Reg v Bennett 4 F & F 1105 and Reg v Sinclair 13 Cox CC 28 were rightly decided; and even assuming, lastly (which appears to be pushing admissions to nearly an unreasonable extent), that upon the facts proved at the trial of the present case an indictment would have lain against the defendant for the alleged assault, I am still of opinion that this action is not maintainable.
I am of opinion that the cause of action here is a turpis causa, incapable of being made the foundation of an action. The cause of action is the very act of illicit sexual intercourse. The fraud relied upon is not the representation of the existence of a state of facts under which the act of intercourse would have been a moral act on the plaintiff’s part. This is not the case of an innocent party to a bigamous marriage, or of a false representation by the man that he was the husband of the woman. The act was admittedly immoral, irrespective of the belief alleged to have been produced by the fraud. The cause of action is, therefore, an immoral act to which the plaintiff was knowingly a party. Thisappears to me to be a typical illustration of the maxim ex turpi causa non oritur actio. The answer which has been given to this is one certainly entitled to consideration, as it carries with it all the weight of the authority of the Lord Chief Justice. It is that this maxim applies to cases of contract only. To that proposition I feel unable to assent. “A promise” as the Lord Chief Justice truly says – “cannot be supported – on the contrary, is vitiated – by an immoral consideration … nor can a contract be enforced if its object be to promote and encourage immorality”. But why? Because the immorality, which is the consideration in the one case and the object in the other, pervades the contract and renders it immoral. Is it either logical, or consistent with our jurisprudence, to hold that an act of such a character as to vitiate as immoral a contract in reference to it, can itself be capable of sustaining an action? That incapacity to obtain support or audience in a Court of Justice which it communicates to every contract of which it is the subject matter or the purpose, is necessarily inherent in itself. Every contract relating to this act of illicit intercourse is turpis, because the act itself is turpis: and as the contract cannot support an action because it is turpis, neither, a fortiori, can the turpis act itself.
It remains but to refer to the argument founded upon the absence of the plea of illegality. No doubt illegality must be pleaded. If, for instance, the plaintiff had been so framed as to have driven the defendant to plead the plaintiff’s consent, and there had been a replication that such consent had been procured by fraud, I should have thought a rejoinder of the illegality would have been necessary; but to the plaintiff as framed here the defendant had no opportunity of so pleading. The only allegation is of an assault. The denial of the assault puts in issue the plaintiff’s consent. Consent in fact is admitted, and the attempt to avoid it by fraud is made, not by pleading, but in evidence. Under such circumstances the defendant is, in my opinion, entitled to give in evidence the same answer to such an attempt as, were the fraud alleged in pleading, ought to have been made upon the record. If, to a replication that the consent was procured by fraud, a rejoinder relying upon the immorality would have been an answer, so evidence of the fraud is answered by evidence of the immorality. When consent in fact is, as it was, admitted in evidence by the plaintiff, the judge was, in my opinion, bound, in consequence of the immorality of the thing consented to, to have declined to allow inquiry into the circumstances under which such consent was given, and to have directed a verdict for the defendant.
Deasy LJ: I quite concur in the judgments pronounced by the Lord Chancellor and the Lord Chief Baron. This is an action of the first impression. Since the time the disease in question was imported into Europe – as it is said to have been – we have never heard of such an action before. If we were to yield to the compassion which everyone must entertain for the serious injuries which this poor woman has incurred – if we were to make a precedent now, it would be one of very dangerous and wide application. The plaintiff led an immoral life for two years; and if at the end of that period she can maintain an action against her comrade in sin for a common consequence of that sort of intercourse, we should have many such actions, and also, perhaps, verdicts obtained from motives of compassion. I think such actions are contrary to public policy and public decency, and that no court should lend its aid to make a precedent for their institution. There is no such precedent. The two cases before Judge Willes and Judge Shee were peculiar; I do not wish to add or to detract from their authority; I leave them where they are, and I say they are no authority for the doctrine that consent to such an act as the present plaintiff complains of can support such an action as this. The Lord Chancellor put a stronger example – the case of a woman seduced under promise of marriage. Has it ever been suggested that an action for assault could be maintained by her? Let me put an even stronger illustration – the case of a bigamous marriage, where awoman is induced, by the greatest fraud that can be practised, to submit to the embraces ofa man. Has it ever been suggested that she could bring an action against him for assault, though the woman in that instance would stand in a very different moral position from the plaintiff here? Here she has led an immoral life for two years, and one of the not uncommon consequences of that is the disease which she has contracted. Therefore she has no right to complain. The case affords an instance of the mischiefs which would arise from the court’s establishing the doctrine for which the plaintiff contends. We have had herea very eminent judge and a jury for two days investigating the time at which, and the circumstances under which this unfortunate but immoral woman contracteda disease which is incident to the life she led. In my opinion the subject is nota fit one for the consideration of judges or juries. The action is contrary to public policy and decency,
and the decision below must be affirmed.
Madden -v- Doohan & Ors
[2012] IEHC 422 (09 October 2012)
U
JUDGMENT of Ms. Justice Irvine delivered on the 9th day of October 2012
1. The within proceedings arise out of the death of the late Terence Madden (“the deceased”) a highly respected member of the Sligo community, who was ruthlessly and gratuitously gunned down outside his home in Monasteraden, Co. Sligo, as he stepped into his car at about 7.50am on 28th January, 1999. He was shot twice and died almost immediately as a result of massive blood loss. The fatal shots were fired by the second named defendant.
2. The plaintiff, being the widow of the deceased, brings these proceedings pursuant to Part IV of the Civil Liability Act 1961 on her own behalf and also on behalf of all of the statutory dependents of the deceased. The deceased was survived by three brothers and one sister. He also left surviving him his wife Margaret, his two daughters, Denise and Clare and his son, Alan.
3. The plaintiffs claim for damages pursuant to the Civil Liability Act is pursued on the grounds that the death of her late husband arose directly as a result of his assault and battery by each of the defendants and that as a result of his death, she has lost significant financial support that she would otherwise have enjoyed had he not been killed. She further claims that the aforementioned loss of financial support has arisen as a result of the actionable conspiracy on the part of all of the defendants to cause him the severe personal injuries which ultimately led to his brutal death. Allied to her financial dependency claim is the claim brought on behalf of herself and all of the other statutory dependents relating to the grief and upset experienced by them as a result of the death and which is commonly referred to as the solatium claim. Finally, in addition to the aforementioned statutory claims, the plaintiff claims damages in respect of nervous shock allegedly sustained by her as a result of the events which she witnessed in and around the time of the deceased’s death.
4. The first, third and fourth named defendants, with the benefit of legal representation, filed full defences to the plaintiffs claim. However, only the first named defendant appeared in person at the trial of these proceedings. Judgment in default of appearance was obtained against the second named defendant on 16th December, 2002. The third named defendant died on 12th June, 2010 and by order of the court made on 18th October, 2010, his sons, Thomas Derrig Jr. and Jonathon Derrig, were appointed administrators ad litem to represent the interests of his estate. The fourth named defendant chose not to appear at the hearing of the action and the court is satisfied, from correspondence received from his former solicitor, that he is aware of the proceedings but has chosen not to attend.
5. Notwithstanding the failure on the part of the defendants to appear and contest the evidence adduced by the plaintiff in support of her claim, having regard to the defences filed by the first, third and fourth named defendants who appeared without the benefit of legal representation, the onus of proof remains upon the plaintiff to establish as a matter of law and by way of evidence, her entitlement to the relief sought.
The Evidence
6. In the course of the proceedings, the court heard evidence that the first, second and fourth named defendants were charged and convicted of the murder of the deceased. They were also charged and convicted of intentionally or recklessly causing him serious harm. In addition, the fourth named defendant was charged and convicted of possession of a sawn-off shotgun with the intention of enabling another person endanger life and the third named defendant was charged with a number of offences in relation to the sawn-off shotgun used by the second named defendant in the course of the murder. The trials of the first, second and fourth named defendants took place before the Special Criminal Court in July 2000 and the judgment of that court was delivered by Morris J. on 26th July, 2000. The third named defendant pleaded guilty to a number of firearms offences and in respect of which he received a three year suspended sentence from a differently constituted court on the 10th July 2000.
7. The judgment of Morris J. dated 261h July, 2000 fully set forth the courts conclusions in relation to the evidence and submissions of the parties in the course of the trial of the first, second and fourth named defendants. The court expressed itself satisfied on the evidence that the shots that killed the deceased were fired by the second named defendant, Mr. Herron. The judgment records that the evidence against the first named defendant consisted of a number of statements made by him to An Garda Síochána, the content whereof he did not dispute in the course of the trial. In those statements, the first named defendant described how, because of some type of behaviour on the part of the deceased in relation to his own father which he considered improper, he arranged for him to be assaulted by the second named defendant. He admitted to having approached the fourth named defendant, Mr. McGrath, to ask him if he knew anybody that would carry out the horrendous assault that he wished to have perpetrated upon the deceased and that some weeks later he was introduced to the second named defendant whom he agreed to pay £1,500 to carry out the assault. In one of his statements he said that he told the second named defendant that he wanted the deceased hospitalised for a couple of weeks and his arms and legs broken.
8. Based upon the aforementioned statements, the court concluded that the first named defendant intended and expected the second named defendant to inflict appalling injuries on the deceased and went on in its judgment to conclude that the first named defendant had been involved in a joint enterprise to cause the deceased the serious injuries from which he ultimately died. It expressed itself satisfied that there was ample evidence upon which to determine that the first, second and fourth named defendants were the participants in a common design intended to cause serious injury to the deceased and that this constituted sufficient mens rea to establish murder.
9. In the present proceedings, the court also heard evidence from Detective Caplice as to statements made by the third named defendant during the investigation into Mr. Madden’s murder. In the course of interview the third named defendant, Mr. Derrig, admitted to supplying the fourth named defendant with a shotgun and ammunition and to sawing off the barrel of the gun at his request. He admitted receiving £40 for the gun and also to the fact that he knew it was the gun that had been used to shoot Mr. Madden. He further told Detective Caplice that he had buried the barrel of the shotgun on his lands in the hope that the gardai would not be in a position to trace him to the weapon when the murder investigation began.
10. In terms of the knowledge and motivation of the third named defendant at the time he provided the sawn off shot gun to the fourth named defendant, Detective Caplice told the court that the only reason for sawing the barrel off a shotgun is to facilitate its use in criminal activity. Removing its barrel makes it a much more dangerous weapon when used at close quarters and also makes it easier to conceal.
11. In support of the sufficiency of the evidence adduced on the plaintiffs behalf to establish each of her claims as against the defendants on a joint and several liability basis, counsel for the plaintiff relied upon two particular decisions to which I will briefly refer. The first is that of O’Hanlon J. in Edward Noel Kelly v. Ireland & Attorney General [1986] ILRM 318, a decision which I note was followed by Lardner J. in Breathnach v. Ireland [1989] I.R. 489 and the second being the decision of Lardner J. in Sidney Taylor v. Phillip Smyth, Kape Investments Limited, Calla Associates Limited and Northern Bank Limited [1991] 1 I.R. 142.
12. In circumstances where none of the defendants have contested the legal entitlement or the sufficiency of the plaintiffs evidence to succeed in her claim, I do not intend to review the case law opened by counsel on behalf of the plaintiff save to state that I am satisfied that having regard to the evidence received by the court and the legal submissions advanced by counsel, that the plaintiff is entitled to succeed in her claims against each of the defendants on a joint and several liability basis. However, I do not believe that she entitled to succeed on all of the legal grounds upon which she relies.
13. O’Hanlon J. in Kelly concluded that where a clearly identifiable issue has been decided against a party in a criminal trial, by means of a judgment explaining how the decision was reached, that decision gives rise to an issue estoppel in subsequent civil proceedings in which that party is involved. Accordingly, in the absence of special circumstances, any effort by a party to challenge by means of civil proceedings a decision made against them in a court of competent criminal jurisdiction is an abuse of process of the court. Indeed, Lardner J. went a little further in Breathnach when he concluded that such estoppel would arise, not only in relation to any specific issue determined in the criminal proceedings but also to findings which were fundamental to the court’s decision on the issue. The reasoning in both cases makes perfect legal sense in circumstances where the decision of the criminal court on the same issue is made on the significantly higher level of proof than is required in civil proceedings.
14. The principal legal question that I must answer in this case is whether the issues decided by the Special Criminal Court and which are referred to in its decision of 26th July, 2000, preclude the first, third and fourth named defendants from denying that they are each jointly and severally liable at common law for the assault and battery which caused the death of the deceased and/or are liable to the plaintiff as the parties to the conspiracy to cause the injuries from which he subsequently died.
15. The Taylor decision is authority for the proposition that where a court concludes that two or more persons combine together with the predominant objective or intention of causing injury to another, such activity amounts to an actionable conspiracy once the plaintiff can establish consequential injury. Counsel for the plaintiff relies upon this decision to support his entitlement to an award of damages as against all four defendants on a joint and several basis, he then submits that the Special Criminal Court decided the issue of conspiracy in the criminal proceedings insofar as the first, second and fourth named defendants are concerned and that by reason of the decision in Kelly those defendants are now estopped from denying liability at common law for a conspiracy that resulted in the death of the deceased.
16. Having regard to the reasoned decision of the court of 26th July 2000, which dealt in detail with what it referred to as the common design of the first, second and fourth named defendants to cause serious injury to the deceased such that they were each guilty of his murder, I am satisfied that they are estopped from relying upon the defences filed to these proceedings wherein they raise a defence to the claim of the plaintiff based upon the tort of conspiracy. This very same issue was determined in the course of the criminal proceedings and it would be an abuse of the process of the court to require the plaintiff to prove this conspiracy for a second time where these defendants were found guilty of murder based upon a common intention to inflict grievous injuries upon the deceased.
17. In relation to the claim for conspiracy as against the third named defendant, counsel submits that I should be satisfied from the evidence of Detective Garda Caplice and from the third named defendant’s own guilty pleas that his predominant objective when he supplied the gun to the fourth named defendant was that it would be used to injure somebody in the course of criminal activity. Thus he submits, the third named defendant should be considered to be jointly and severally liable with the other defendants for the conspiracy to inflict significant injury upon the deceased and from which injuries he subsequently died.
18. Under the provisions of s. 11(2)(a) of the Civil Liability Act 1961, it is provided that persons may become concurrent wrongdoers as a result of “conspiracy or concerted action to a common end”. I have not been in a position to find any cases where damages were claimed by an individual injured as a result of a conspiracy between a number of people to cause them harm. Neither can I find any civil claim brought by the statutory dependents of any such person. However, there seems no reason whatsoever to exclude battery from the class of wrongful actions which may be the subject matter of conspiracy and which may result in loss and damage. Indeed, it would be quite a travesty of justice if a person who conspired to have another person injured or murdered could not be rendered liable in the civil courts to an action in damages brought by the widow of the victim by virtue of the fact that they were able to solicit a third party to carry out a brutal assault which they themselves were not prepared to execute.
19. I have tried to find some clear authority for the proposition that the aforementioned section of the Civil Liability Act can be applied to cases where parties conspire to commit the tort of battery and I have been unsuccessful in this regard. However, there seems to me to be no reason why the tort of conspiracy should not be applied to wrongdoing of this nature. Accordingly, in relation to the plaintiffs claim based upon the civil tort of conspiracy, I am satisfied that the first second and fourth named defendants are, by reason of the legal principles that emerge from the Kelly judgment, estopped from raising any defence to the conspiracy claim in these proceeding given that in the criminal proceedings these defendants were found to have conspired together to cause the injuries to the deceased from which he died. In relation to the third named defendant, I am also satisfied from the evidence of Detective Caplice given in these proceedings that at the time he sold the gun to the fourth named defendant that he well knew that gun would be used to inflict serious injuries to a third party. This evidence when taken together with his guilty plea to those charges earlier referred to in this judgment has satisfied me that he too must be found, on the balance of probabilities, to have been guilty of a conspiracy with the other defendants to injure the deceased such that he must be found jointly and severally liable for the injuries which caused his death.
20. Having concluded that each of the defendants are jointly and severally liable to the plaintiff for all of the legally recoverable losses arising from her husband’s death on the grounds of conspiracy, it is not necessary for me to decide whether the defendants, other than the second named defendant, are liable to the plaintiff for the same loss on the grounds of assault and/or battery. They personally did not assault the deceased. Neither did they directly impose any unwarranted physical contact on him as is required to establish an act of battery. While I am confident that it is probably the case as a matter of law that one party can be held liable for an assault or act of battery committed on their behalf by another party either on the basis that they acted as their agent or on the grounds that they can be considered vicariously liable for their actions, I have not found clear legal authority for this proposition. This being so, I am not happy to decide whether the Special Criminal Court in its decision setting out the reasons underlying the convictions of the first, second and fourth named defendants can be stated to have determined the same issues as would fall to be decided in this case against these defendants if asked to consider their liability for the plaintiffs losses based upon the torts of assault and battery. In these circumstances, I have decided that I will not consider this legal issue as my conclusions on the matter are redundant having regard to the overall outcome on the conspiracy issue.
Damages
21. Having concluded that the plaintiff has established liability against each of the defendants for the brutal killing and premature death of her husband, I must now consider the compensation to which she and the deceased’s family are entitled. The heads of loss which I must consider are as follows:-
(i) solatium;
(ii) financial loss;
(iii) special damages; and
(iv) nervous shock.
Solatium
22. At the time of his death, the deceased was survived by the plaintiff, his three children and four siblings. The maximum sum which the court may award in respect of the grief sustained by the deceased’s statutory dependents has been capped by the legislature in the sum of €25,400. No waivers have been executed by the deceased’s four siblings so I must consider whether or not I should award them any part of the solatium monies. Having heard the evidence of the deceased’s two daughters, I am satisfied that each of the deceased’s siblings would undoubtedly have suffered significant grief and upset as a result of their brother’s violent and gruesome death. However, the overall sum available in respect of solatium is small and accordingly, I feel that I must limit them to a modest award. I will accordingly award John Madden, Albert Madden, Ciaran Madden and Winifred Foley each a sum of €1,250. In relation to the balance of the solatium monies, I believe these should be divided equally between the deceased’s widow and his three children. I will accordingly award them each a sum of €5,100.
Dependency Claim
23. At the time of the deceased’s death, he was employed as a FAS supervisor in Sligo. He also ran his own auctioneering and insurance business and did some part time farming. The Actuary, Mr. Peter Byrne, advised the court that the financial dependents of the deceased as of the date of his death were his widow, Margaret and his daughter Clare who was at that time still in full-time education. Using evidence obtained from the Revenue Commissioners which showed that the deceased had a net weekly income of approximately €499 at the time of his death and based upon a retirement age of 65, he capitalised the financial loss to the plaintiff as of today’s date in the sum of €611,000 and the loss to his daughter Clare in the sum of €17,000. It is also the case that in the year prior to the deceased’s death, the bed and breakfast business operated by himself and his wife since approximately 1994 had yielded a turnover of something in excess of €6,000. Any profits arising from that business were not taken into account by Mr. Byrne when he made his calculation in respect of the dependency claim.
24. The estate which passed to the plaintiff on her husband’s premature death did not give rise to what is commonly referred to as an accelerated benefit and hence there is no deduction in this respect to be made from her dependency claim. However, the court must consider the plaintiff’s dependency claim taking into account the possibility that the deceased might not have worked until he was 65 by reason of a range of factors unrelated to the present proceedings such as unemployment or possible ill-health. Taking these matters into account but also factoring in the probability that had the deceased lived, the bed and breakfast business would have yielded some additional income. I am satisfied that the reduction I should make in respect of Ready v. Bates factors should not be substantial. I will accordingly award the plaintiff a sum of €550,000 in respect of her dependency claim and I will allow his daughter’s Clare’s dependency claim in the sum of €17,000 in full.
Special Damages
25. I am entirely satisfied that the plaintiff has proved the loss of €17,224.24 in respect of those items of special damage as set out in the schedule of special damages which appears at p. 350 of the book of pleadings produced to the court. I will allow that sum in full.
Nervous Shock
26. I am satisfied from the evidence of the plaintiff and that of her daughters, Dr. Costello, her general practitioner and Dr. John Canavan, Clinical Psychologist, that the plaintiff suffered what is commonly described as nervous shock as a result of the events surrounding her husband’s death. It is hard to imagine the trauma that the plaintiff must have felt when, having heard her husband leave the house to go to Dublin for an early morning meeting, she ran down the stairs in response to a loud noise only to find him lying face down on the ground outside his car covered in blood.
27. The plaintiff described her feelings of shock, panic and despair as she tried to summon help. As she did so, she experienced a searing pain in her chest which required her emergency transfer to Sligo General Hospital where she was later diagnosed as having suffered an anterior myocardial infarct or in common parlance a heart attack. She was detained for approximately seven days with cardiac symptoms and was in a terrible state of shock when temporarily discharged from hospital for the purposes of attending her husband’s funeral.
28. Dr. Canavan told the court that the plaintiff had all of the hallmark symptoms of Post Traumatic Stress Disorder. Her sleep was severely disturbed for several years. She had flashbacks and nightmares and frequent dreams of hearing gunshots. She withdrew from all social situations and sought to avoid locations or events that might remind her of the traumatic events surrounding her husband’s death. Her recovery was made much more difficult by the fact that she had to deal with living at the scene of the murder thus experiencing memories and intrusive thoughts which caused her anxiety on a daily basis. Likewise, the fact that the plaintiff had to witness a restaging of her husband’s murder and deal with a significant garda investigation over an extended period made it difficult for her to control her feelings of stress and anxiety particularly when those in charge of that investigation appeared to be at a complete loss as to why her husband had been shot or as to who within the community could possibly have wanted him killed. In July 2000, some eighteen months after the murder, the plaintiff had to endure the enormous stress of coming to Dublin and participating in the trial of the first, second and fourth named defendants which lasted for a period of three weeks. During that time she had to listen to the evidence of all of the witnesses, stand outside court beside the men who were ultimately convicted of his murder and give evidence herself as to the circumstances in which her husband died. All of these factors significantly impacted upon her ability to recover from the physical and psychological effects of the murder.
29. Dr. Canavan told the court that the plaintiff has made good progress over the last number of years. However, as a result of psychological injuries she is still isolated within her community, fearful of living alone and unable to get satisfactory sleep.
30. In the context of these proceedings, the court can only compensate the plaintiff for injury which can be categorised under the heading of nervous shock. In this respect, she cannot be compensated for any of the medical conditions disclosed to the court which do not fall within that category and these include her diabetes, retinopathy and cardiac heart disease. However, Dr. Costello told the court that the plaintiff had experienced no cardiac problems prior to her husband’s shooting and that the trauma which she experienced not only caused her initial heart attack but also caused her to develop high blood pressure which has proved difficult to control. She has gone on to develop cardiac disease which required her to undergo angioplasty and subsequently triple bypass surgery. On the evidence before me, I cannot ascribe her coronary heart disease to the shock sustained by her at the time of her husband’s death. However, Dr. Costello was clear that cardiac disease is multi-factorial and was satisfied that the plaintiffs high blood pressure would have had the effect of significantly progressing her heart condition to the point where she required surgical intervention.
31. Taking all of the evidence that I have heard in respect of the nervous shock claim, I believe the appropriate sum in respect of general damages to cover this head of claim is a sum of €150,000.
32. Summary of the Awards
John Madden €1,250 Solatium
Albert Madden €1,250 Solatium
Ciaran Madden €1,250 Solatium
Winifred Foley €1,250 Solatium
Clare Madden €5,100 Solatium
Alan Madden €5,100 Solatium
Denise Madden €5,100 Solatium
Margaret Madden €5,100 Solatium
Margaret Madden €550,000 Dependency Claim
Clare Madden €17,000 Dependency Claim
Margaret Madden €17,224.24 Special Damages
Margaret Madden €150,000 Nervous Shock
33. Notwithstanding the conclusion of these proceedings I recognise that it would be hopelessly unrealistic to believe that the plaintiff will ever fully psychologically recover the health which she might have expected to have enjoyed at this stage of her life had her husband not been taken from her so prematurely by the senseless and ruthless actions of the four defendants in these proceedings. Nonetheless, I hope that the plaintiff, who appears to be very fortunate in terms of the support she receives from her loving family, will make further progress to the point that she will be able to enjoy some improved quality of life in the years to come.
Pista -v- Sweeney & Anor
[2016] IECA 94 (18 March 2016)
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Peart J., Irvine J.
Judgment by:
Peart J.
1. In these proceedings the plaintiff sues the defendants for damages for personal injuries which he sustained when during the course of his employment as a clamper of vehicles unlawfully parked in an off-street car park he was struck violently on the head with a lump hammer by the first defendant on the 14th November 2009 on whose vehicle he was in the process of placing a clamp. His injuries can be classified as catastrophic.
2. His claim for damages against the first defendant is brought on the basis of assault and trespass for which he is entitled to a trial before a judge and jury, and against the second defendant, his employer, on the basis of negligence, breach of duty, including breach of statutory duty, and breach of contract, which if not associated with a claim based on assault would be heard by a judge sitting without a jury.
3. The issue on this appeal, which is essentially whether, in circumstances where the plaintiff has already obtained judgment in default of appearance against the first defendant and awaits only an assessment of damages against him, he retains his right to have those damages assessed by a jury, and if so, whether the trial of the action against his employer, based as it is on claims in negligence, breach of duty and breach of his contract of employment, should take place also before the jury, or whether both matters should be heard before a judge sitting without a jury. On the 15th July 2015 Kearns P. refused the second defendant’s motion to set aside the notice of trial which the plaintiff filed and served seeking to have both matters heard by a judge and jury.
4. In June 2013 the plaintiff had served Notice of Trial seeking a trial without a jury, which appears to have lapsed in some way. Perhaps it was never filed. But one way or another, the plaintiff served a further Notice of Trial in September 2014 in which a trial with a jury was sought. As it happens that Notice of Trial was struck out when it appeared in a jury list to fix dates because there was no appearance in court on behalf of the plaintiff. Thereafter there was some correspondence between the respective solicitors in which the second defendant took issue with the plaintiff seeking to have a trial with a jury, and indicated that if another notice of trial was served seeking to have the matters heard with a jury it would seek to have such notice of trial set aside.
5. On 21st April 2015 the plaintiff duly served a further Notice of Trial seeking a hearing before a judge and jury of his claims against both defendants that against the first defendant being confined to an assessment of damages since he already had obtained judgment against that defendant in default of appearance on 16th January 2012. On receipt of the Notice of Trial served on 21st April 2015, the second defendant issued a Notice of Motion dated 27th April 2015 seeking an order setting it aside, as well as an order directing that the trial take place before a judge sitting alone. It was contended that the plaintiff is not entitled to a hearing before a jury having regard to the provisions of s. 1(1)(b) of the Courts Act, 1988, or alternatively that the Court should exercise its jurisdiction under O. 36, r.7 RSC to direct a trial of the proceedings before a judge sitting alone. As I have indicated already the President of the High Court (Kearns P.) heard that motion on the 15th July 2015 and refused the order sought. It is against that refusal that the second defendant now appeals to this Court.
6. The approved note of the President’s ex tempore decision includes the following by way of conclusion:-
“The allegations against the first defendant [were] straightforward. Judgement was obtained against the first defendant. The facts were clear. The second defendant argues that the allegations against it really alleged negligence in training and security practices and seeks a trial without a jury. Case law was opened before me including the Supreme Court’s decision in Sheridan and Kelly, and Mr Justice Charleton’s decision in D. F. v. The Commissioner of An Garda Siochana delivered on 15.5.2015 paragraphs 18 and 19. At paragraph 18 it states:
“Joining other causes of action to false imprisonment or intentional trespass to the person, assault, may preserve the entitlement to a jury trial but only where there is one act or omission at issue in the trial.”
This case is in that category as set out by Mr Justice Charleton. There is a single act and there is no separate claim against the employers since that date.
At paragraph 19 it states:
“It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is based on vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants.”
It is exactly the same in this case even though there was no vicarious liability – a defective work system there will be a spirited defence no doubt [sic].
The focus is on the damages and the relevant act that caused them. If you are to separate the two defendants the damages would be precisely the same. Everything alleged to have occurred in this case can be traced back to the same event. I have no hesitation in directing a trial by judge and jury. Costs to the plaintiff with a stay until the cases disposed of.”
7. Section 1 of the Courts Act, 1988 as relevant provides:
“(1) Notwithstanding section 94 of the Courts of Justice Act 1924 or any other provisions made by or under Statute, or any rule of law, an action in the High Court:-
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a Statute or independently of any such contract or any such provision) ………
(b) …
(c) …
or a question of fact or an issue arising in such action shall not be tried with a jury.
(2) …
(3) Subsection (1) of this section does not apply in relation to:–
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) …
(4) …
(5) …
(6) …
(7) … ” [emphasis added]
8. Order 36, r. 7 RSC provides:
“(7) the Court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.”
9. The second defendant seeks to escape the provisions of s. 1(3)(b) relied upon by the plaintiff, by contending that the claims being advanced in the statement of claim against it, and by reference to additional particulars of claim provided, are different to the claims made against the first defendant, and therefore do not constitute “a cause of action in respect of the same act” since claims arising from an allegedly unsafe system and place of work and a failure to provide the plaintiff with adequate training, control, supervision and management of work practices, and security arrangements, and this such a cause of action is to be distinguished from the cause of action pleaded against the first defendant which is confined to trespass, assault and battery. It is submitted that this clear distinction is underlined by the nature of the discovery of documents which the plaintiff sought against the second defendant in respect of, for example, training records and training provided, protective equipment provided, safety instructions and manuals, safety assessments and so forth.
10. It is submitted that although it is undisputed that the plaintiff was in the employment of the second defendant on the date that this assault occurred, and that it occurred during the course of that employment, since the first defendant was never in the employment of the second defendant. Accordingly, it is submitted that the two cases relied upon by the plaintiff in his submissions, namely Sheridan v. Kelly [2006] I.R. 314 and D.F. v. Commissioners of An Garda Siochana [2013] IESC 44 where vicarious liability was pleaded, are distinguishable.
11. It is also submitted that while the injury to the plaintiff is the same injury for which he seeks to recover damages from the first defendant, the acts or omissions alleged against the second defendant are totally distinct and separate from the act of assault alleged against the first defendant, and occurred, as they must have in respect of some of the alleged omissions (e.g. insufficient training) on separate dates, and for which no vicarious liability is alleged, and that this takes the case outside the scope of s. 1(3) (b) of the Act of 1988.
12. The plaintiff on the other hand submits that this case is indistinguishable from both Sheridan v. Kelly, and D.F. v. Commissioner of An Garda Síochána, and that the question of vicarious liability arising in those cases was incidental, and not a determining factor in the judgments. He submits that essentially this is an action for damages for trespass of the person i.e. assault and “for another cause of action in respect of the same act or omission”, namely negligence, and therefore satisfies the test in s. 1(3) (b) as set forth above. His submission in this regard is conveniently summarised in written submissions at paragraph 11 thereof as follows:
“It is submitted that this is an action for damages for trespass to the person and for another cause of action namely negligence in respect of the same act or omission. It is submitted that the damages suffered by the respondent due to negligence arise from the same factual circumstances as the assault, namely an assault on the respondent in the course of his employment with the appellant. Full particulars of negligence and breach of duty have been pleaded in the statement of claim and as can be seen therefrom, the trespass, assault and battery on the part of the first named defendant was carried out inter alia in circumstances whereby the respondent was instructed by the appellant not to remove clamping devices without first receiving payment regardless of threats to the respondent’s safety (see paragraph 7 [sic- in fact it is paragraph 8]. Furthermore, at paragraph 9, it is pleaded that the injuries were additionally caused by negligence in the management of work practices and security arrangements in the said car park.”
Conclusions
13. It is quite clear that the plaintiff is entitled, should he so choose, to have his damages claim against the first defendant based on the tortuous assault assessed by a jury. That is absolutely clear from the terms of s. 1(3)(a) of the Act of 1988. The question arising on this appeal then is whether by reason of the inclusion by him of another cause of action, this time a claim for damages for negligence, breach for duty and breach of contract but in respect of the same injuries, he has either disentitled himself to a hearing before a jury at all, or whether he retains his entitlement to an assessment of damages for the assault by a jury, but must have his claim for damages for negligence in respect of the same injury against the second defendant decided by a judge sitting alone. One can envisage certain obvious difficulties in a case such as the present one where a jury might be asked to decide the quantum of damages against the first defendant, and the judge separately, having decided the liability issue in respect of the claims against the second defendant, would have to assess damages against that defendant in respect of precisely the same injuries and loss. Does he/she do so prior to the jury’s assessment so that he is not aware of the jury’s assessment? If he does so, may the jury then be told of the judge’s award for the same injury and loss? If not, is there a risk of inconsistent awards? Posing even these questions, and there may be more, indicates that pragmatism alone requires that however it is done, the assessment of damages should be made by the same assessor be that a jury or a judge, given that it is the very same injury and loss that is under assessment.
14. In his judgment in D.F. referred to, Charleton J. stated at paragraph 18 of his judgment:
“18. Clearly, actions for false imprisonment and assault are within the province of a jury trial in the High Court. Joining other causes of action to false imprisonment or intentional trespass to the person, assault, may preserve the entitlement to jury trial but only where there is one act or omission at issue in the trial, consisting in terms of the external facts of an assault or of false imprisonment, or both, and the subsidiary torts are allegedly based on that assault or on that false imprisonment. An example would be where it is alleged that as well as an action for deprivation of liberty taking place contrary to the statutory defence offered by a defendant, that the application of the power of arrest was negligent: though here it must be added that this may be a more than unhelpful consolation of separate torts. This is not to state that any such pleading is possible. As to whether adding allegations of other torts to false imprisonment and assault is reasonable having regard to the circumstances determines the balance as to whether the result should be a trial by a judge sitting alone or a trial by a judge sitting with a jury. The reform in section 1 of the Act of 1988 is not to be subverted. This is a matter of assessment by the trial judge as to where, in substance, the nature of the claim lies. What is clear is that the Oireachtas decided that issues of false imprisonment, which are predominantly cases brought by citizens against the State for alleged wrongful arrest by Gardai, and assault cases, which may include such cases or in more recent times have involved allegations of sexual violence, should be tried by a judge with a jury. It is only if the joinder of other torts or causes of action takes the substance and nature of the case away from those core jury-trial torts that a trial should take place with a judge sitting alone.”
15. I respectfully agree with these remarks of Charleton J. which in any event are binding upon this Court. In my view, a proper interpretation of s. 1(3)(b) of the Act of 1988 in accordance with what is stated avoids the possibility of the undesirable consequence of separate assessments of damages in respect of the same injuries and loss to which I have just referred. Section 1(1) of the Act does not apply where the plaintiff claims damages for an intentional trespass to the person i.e. an assault, and at the same time claims damages for another cause of action (in this case, negligence) in respect of the same act. Damages for another cause of action in respect of the same act must include damages for negligence or breach of contract giving rise to the same injury as in the assault. The fact that the second defendant did not actually assault the plaintiff is not the point. The point is that the claim which is made against the second defendant is that but for its negligence, breach of duty and breach of contract, this assault would not have occurred. The plaintiff would not have been injured. In this way the two causes of action are inextricably connected by their alleged causation of the same injury. In this way, they in my view come within the exception provided by s.1(3)(b) of the Act of 1988. As stated by the trial judge (Kearns P.) in the approved note of his decision “there is a single act and there is no separate claim against the employer since that date”.
16. There is nothing intrinsically problematic about a unified trial of the liability claims against the second defendant assessment followed by an assessment of the damages which must take place whether or not liability is found against the second defendant. Depending on that liability finding judgment will be entered for the amount assessed either against the first defendant alone or against both defendants. Neither is there any difficulty in the trial judge directing the jury on any issues of law it will have to decide before it can find the second defendant to have any liability. These issues are not complex on the facts of this case. The trial judge can easily direct them as to findings of fact which they will need to make, and can direct them also on issues of proximity, foreseeability and causation, and any other legal issues that arise.
17. In my view the trial judge was correct to refuse the second defendant’s motion, and I would dismiss the appeal.
Hackett v. Calla Associates Ltd. & Ors
[2004] IEHC 336 (21 October 2004)
Judgment of Mr Justice Michael Peart delivered the 21st day of October 2004:
Introduction:
This case arises out of an incident outside a nightclub known as Marleys Night Club, on the night of the 12th January 1996 or the very early hours of the 13th January 1996, when the plaintiff alleges that he sustained a very serious injury to his right eye and the area surrounding it as a result of a blow received from a blunt instrument wielded by what is commonly known as a ‘bouncer’ employed at the premises on the night in question. The circumstances giving rise to the injury are in dispute, as is the allegation that the injury was caused by any such bouncer on that night. The defendants deny that any baton or blunt instrument was used at all when a group of bouncers came out of the premises into the car-park to break up a crowd which was causing trouble outside the nightclub, and they maintain that no more than reasonable force was used, and that if the plaintiff suffered any injury it was entirely his own fault, or at least that he was guilty of contributory negligence.
The first named defendant is a limited liability company which owned the licensed premises of which Marleys forms a part. The second named defendant is the person in whose name the licence itself was held following an ad interim transfer application to the District Court on the 23rd September 1992. There is some dispute arising in these proceedings as to whether the bouncers on duty that night were employees of the first defendant or whether they were the employees of the second named defendant, and that is an issue which I will have to address later. Counsel appearing for both defendants stated that it was accepted by both of his clients that the bouncers in question were the employees of the first named defendant. The plaintiff does not accept that, and has attached some significance to the issue.
The claim is in effect only against the first and second named defendants at this stage, it being accepted that the employees in question were not the employees of the fifth named defendants, and that ground of defence has been withdrawn by the first and second named defendants.
One matter which is immediately obvious is that this injury occurred over eight years ago. The simple explanation for this is that the plaintiff has spent about six of these years in prison in relation to a matter entirely unrelated to this particular incident and I do not have to elaborate further in that regard. But it is undoubtedly a feature of this case that this passage of time has made it more difficult for witnesses called to give evidence to remember exactly what happened outside the nightclub on that night.
The injury:
As far as the actual injury itself is concerned, there is no dispute. The medical reports describe it as a very severe injury to the right eye, including a full thickness laceration of the right upper eyelid and a severe blunt trauma to the globe of the right eye which caused a dislocation of the lens and displacement of the vitreous gel from the posterior part of the eye into the ante chamber, when it was struck by a blunt object. The most recent report when describing the plaintiff’s visual acuity in the right eye states “Perception of light only (totally blind)”. This condition is now regarded as permanent, and his level of vision is described in a report dated 13th May 2004 as:
“The condition of his right eye is now permanent and leaves the patient with no stereoscopic vision, diminished side of his visual field, an overall reduction in his visual acuity and an uncompensated blind spot in his left eye.”
There also remains a full thickness scar in the centre of his right eyelid, although the latest report notes that the cosmetic appearance has greatly improved.
The author of these reports, Mr Hugh Cassidy, Consultant Eye Surgeon, gave evidence. He said that the plaintiff had travelled to St. Vincent’s Hospital immediately after the injury was sustained and that on arrival there was extensive bruising to the right cheek and a laceration to the right eyelid. A blow over the right eye had caused the injury to the eye which is described in his reports. He described it as “a blunt trauma” which would have to be caused by a blow from a heavy solid object, and that it would require very severe force to cause a full thickness laceration of the eyelid. He said that in his practice he had seen similar type of injury caused by a blow from a hurley, and described it as a very severe injury, and one which was consistent with the account of the injury which was given. He described the right eye as being a write-off.
Summary of the evidence:
The plaintiff was born on the 9th March 1970 and was therefore almost 26 years of age on the date of this incident. He was unemployed at the time, and apart from the six or so years spent in prison between 1998 and March 2004, his employment record has been sporadic and uncertain.
On the 12th January 1996 the plaintiff had attended the funeral of a friend in the morning. Later in the day he and a couple of his friends “the Merediths”) went to a pub called the “Furry Bog” in the Whitechurch area of Rathfarnham. They were later joined by others, including a lady who gave evidence, namely Colette McGouran. Having spent a couple of hours there they all decided that they would go up to Marleys Night Club, which is operated in a premises which was known as Taylors Grange Hotel. They went by taxi. He and his companions had been in that premises on a number of occasions previously and were known there. In fact the plaintiff was someone who had previously been barred from that premises, but on this occasion he seems to have been able to gain entry to the premises without coming to the attention of the staff controlling entry on the night. He and his friends arrived at about midnight and paid an entry fee to the Night Club. Their jackets/coats were handed into a cloakroom from which they were collected on departure – a matter to which I will again refer.
I am satisfied that the plaintiff was someone who was barred from these premises for some time prior to this night, even though I have no evidence as to the precise reason for that and whether there was a particular incident which gave rise to it, or whether it was on account of the proprietors having formed a view generally about the plaintiff on account of what I might loosely call his “local reputation”. Counsel for the defendants certainly attempted by a certain line of questioning, to suggest that the plaintiff was someone who had a reputation in the area for violent behaviour, but I was not prepared to have that aspect of his character explored in detail since its relevance to what happened on the night in question is very limited indeed. Under cross-examination, the plaintiff accepted that he was ‘no angel’.
The plaintiff stated that after getting to the nightclub he and his friends stayed in a group together and that there was no trouble of any kind. He said that at about 2am on the 13th January 1996 they began to leave the nightclub. It appears that when they arrived the plaintiff had left the coats into the cloakroom but had given the tickets to Keith Meredith, and that the latter joined a queue to collect the coats. This queue was just inside the door of the night club which leads to the car-park outside. In other words, it is between the night club space itself, and the exit door. At any rate it appears that the plaintiff felt that this queue was not moving fast enough for his liking, and he also stated that there were others coming into the queue from his left, and that it was not what he called “a proper queue”. He took the tickets from Keith Meredith and made his way to the top of the queue, thereby giving rise to some difficulty with patrons at the head of the queue. The plaintiff stated in his evidence that when he went to the top of the queue he asked those at the head of the queue if they mind if he stepped in to get the coats, and that they agreed. It is relevant to say at this point that a man named James Clarke, and who was an off-duty security man on this night and who was situated at the head of the queue had some sort of altercation with the plaintiff in relation to his skipping the queue, and the plaintiff accepts that they exchanged words about it and that he “tipped” Mr Clarke in the face. What that means is that he appears to have slapped Mr Clarke’s face with an open hand, not a fist. One way or another I am satisfied that the plaintiff had an aggressive altercation with Mr Clarke at the head of the queue. In cross-examination the plaintiff also accepted that he suggested to this Mr Clarke that if he had any problem with the plaintiff they could settle the matter outside, meaning by way of a fight as far as I am concerned.
Neil Meredith was at the queue at this time also and while he heard some verbal exchanges between the plaintiff and Mr Clarke, he did not see the slap to Mr Clarke’s face or hear exactly what was being said. Similarly, Colette McGouran also was aware that there was something going on at the cloakroom queue but saw nothing and did not know who was involved.
Ms. Sharon Lawless, the Manager of the premises and who says she was employed since 1995 by Calla Associates to manage the night club, states that she heard raised voices at the cash desk and saw James Clarke a man, having an argument about the queue. She was told that the man was the plaintiff in these proceedings. She says that the plaintiff was being belligerent and aggressive and more than was necessary even making allowances.
The plaintiff states that he went to exit the premises into the car-park, but that at this point four or five other security men arrived and he was pushed from behind as he put on his jacket. He says that there was what he called “give and take” on both sides in the altercation, and he was eventually pushed out the door which was then closed behind him. This door is a double door which opens outwards, there being a crush bar in position on the inside of the doors. The fact that the doors do not open inwards is of some relevance because the evidence of the security men is that after the plaintiff was forcibly ejected from the premises, the plaintiff was attempting to push the door inwards from the outside and with such force that the plasterwork around the door frame was beginning to become loose and damaged.
The plaintiff states that after he was ejected there were about 20 or 30 other people in the car-park outside the premises. It was also raining and he says that a number of people were standing under a veranda immediately outside the doors. He says that some of these people, whom he did not know, started to kick at the door but that he ignored them and was intent on putting on his jacket. It was just at this point he says that a small door to the left (as one looks out of the premises) of the double doors was opened and that a number of bouncers emerged. With this, he says, all the others under the veranda disappeared and he was left there as he was still at that stage putting on his jacket. It is immediately after this moment that he says that he received a blow to his head which has caused the injury to his eye, but I want to deal with the other evidence which I heard in relation to this particular point of the evidence, because there are differences between what the plaintiff and his witnesses say happened and what the defendants’ witnesses say happened.
Neil Meredith:
Neil Meredith stated in relation to the kicking of the door that there were a lot of people gathered outside the double doors and that there was a lot of commotion, with some people trying to get back in to get their coats and the bouncers trying to get people out as quickly as they could. He says that after he went out and down the ramp he saw the plaintiff and a bouncer having an altercation. This man was not Mr Clarke. He says that three or four bouncers emerged then from the small side door and ran towards the plaintiff. He says that one of these men was carrying a baton about 12 inches in length and that he caught hold of the plaintiff. He says that two of the other bouncers were carrying larger batons which were maybe about three feet in length. He says that these bouncers ran generally at everybody who was gathered outside the premises and that there was an element of panic in the situation. He says that he saw the plaintiff stumble forward. Under cross examination he was asked whether he saw people outside throwing glasses and stones at the windows of the premises, but he said he did not see that happening. He said also that he did not see the plaintiff doing anything outside the door in the way of kicking the door and so on. It was asked, if that was so, then why did the bouncers come running out the small door and head straight for the plaintiff. Mr Meredith reiterated that they just came out and that one of them hit the plaintiff in the face with a baton and that it was something that he would never forget. He thinks that there were four or five bouncers and that they generally laid into the crowd, but he does not know if any other persons besides the plaintiff were hit.
Under cross examination he was asked to explain how certain aspects of the statement which he made to the Gardai after the incident differed from what he was now stating in his evidence – for example that in his statement he had described the weapons used by the bouncers as “iron bars” rather than batons. Mr Meredith sought to minimise the distinction by saying that a baton is a long object made of either wood or iron, or words to that effect. He could not remember using the term “iron bars” but that it was about eight years ago at this stage. There was also a reference in his statement to the bouncers “swinging digs”, but he could not remember saying that either. It was also put to him that in his statement he had referred to some of the people throwing stones and breaking windows, but that now he says in his evidence that he did not see that happening. He accepted that the statement contained what it contained, but that nothing could take away from the fact that he saw the plaintiff being hit with a bar, and that things would have been fresher in his mind eight years ago.
Colette McGauran:
Ms. Mc Gauran says in relation to this part of the incident that she had heard people banging on the double doors and also that a group of bouncers came running out of the small door, and that one of them charged at the plaintiff and hit him over the head with a baton, and that the plaintiff staggered and went towards the road beyond the car park . In cross examination it was put to her that what she had said in her statement to the Gardai after this incident was somewhat different to what she was now saying in court. She could not remember exactly how she had described matters in her statement and agreed that what was in her statement was likely to be correct given the length of time which has now passed since the incident. However her statement was not put into evidence, but it is suggested on behalf of the defendants that her evidence should not be relied upon given the differences. It is a factor which I will bear in mind as going to the weight of her evidence, but it is necessary for me to reach any conclusions on the evidence heard before me, and the statement is not in evidence. The same applies to the criticism made of the evidence of Mr Meredith in so far as his evidence differs in some respects to what is contained in his statement.
Mrs. Sandra Hackett:
Mrs Hackett is a sister in law of the plaintiff and she was at the nightclub on this night. She had not gone there with the plaintiff but saw him there. As she was leaving the premises at the end of the night she remembers seeing the plaintiff and saying goodnight to him. She did not have to collect any coat from the cloakroom. She said it was slow to get out of the premises because of the amount of people at the entrance lobby. She remembers being just outside the main doors a few feet from a pole which is identified in the photographs produced to the court. She had moved onto a grass area and was just moving through the crowds when she heard a bang. She said there was what she described as total confusion and a lot of people burst out of a door. These were the bouncers, and she said it felt as if there might have been about ten of them, but that it was probably about five and that they had batons in their hands. She described these as being like American baseball bats. She did not see the plaintiff being struck. She described seeing what she called “a scrum” but does not know exactly was involved in that, but she said that some bouncers were involved in it and they would have had batons. She thinks about fifteen minutes might have passed between her exiting the premises and the trouble starting. She thinks that she became aware that the plaintiff had been hit when somebody shouted that he had been hit. She saw blood on his face when he was coming towards her in the car park. She said there was blood everywhere and that the plaintiff was holding his eye. There was also blood on a white car that she was standing at. She says that at this stage the bouncers were looking out of the door down towards the car park where she and the plaintiff were. They did not have anything in their hands at that time.
Under cross examination it was put to her that in her statement to the Gardai after this incident she had stated that she had seen a bouncer hit the plaintiff. She said that it was eight years ago at this stage and that what she has stated in her evidence to this court is what she now can remember. It was suggested to her by Counsel that at this stage possibly she can remember nothing well.
Sharon Lawless:
For the defendants, Ms Lawless stated that after the bouncers had removed the plaintiff from the premises, he was standing outside the double doors shouting back at the bouncers who were inside, and that there was a lot of people outside at that time, presumably waiting for taxis. She says that she telephoned the Gardai as a result of the commotion and what was happening in relation to the kicking of the door. She says that she rang the Gardai because she did not want what she described as “a situation to arise”, because the plaintiff had been barred from the premises and she feared that something might arise outside on account of that fact. She thinks she called the Gardai at about 2.30am. While she did not see exactly what was happening outside because she was inside behind the doors, she says that the doors were being kicked with such force that the hinges at the top of the doors came loose and she was afraid that they would give way under the force of the kicks. She also heard a group of people chanting “One, two, three” and that was followed by more kicking of the door. She says that it was at this point that the bouncers went out into the crowd by means of the small door to the left (as one looks out). She said that she heard glass breaking, and she stated also that a glass bottle came into the premises just past her face and landed beside the cash desk. She went upstairs to call the Gardai and at that point she says that she saw some windows of the premises broken. The bouncers returned to inside the premises and she says that one of the bouncers, a Mr Leydon, had a cut on his head as far as she recalls. She described the incident as being “a riot” and as being “under siege” and that it was very frightening. She was cross-examined of course and she was asked why the bouncers had been sent out to deal with the crowd. She said that when people become aggressive with drink, sometimes the situation can be diffused quickly and this was the reason they went out – in order to “show a presence”. She stated in fact that they were successful in this since the incident died down after a few minutes. The kicking of the doors ceased during this time and the crowd dispersed. She agreed that she did not see exactly what took place outside the doors as she was inside.
She also gave evidence relevant to the issue as to whom the bouncers were employed by, and her own employment at the premises. She stated that she was employed by calla Associates Ltd to manage the night club. She stated in cross examination that she had never worked at any other premises owned by Calla, or even in any other premises owned by Mr Philip Smyth or any other company of his. On taking up her position there was already in place what is referred to as a “suits policy”. All security personnel were obliged to wear suit and bow tie, so that they would be recognised a part of the security team. According to her, Mr O’Reilly was simply the licencee of the bar and had charge of that area, but that she was responsible for the premises as a whole as manageress. She said that it was part of policy that no batons would be used by security personnel and that they were never used at any time and that there were no batons on the premises at any time. She also stated that the person to whom she reported within the company was Brenda Flood and that she was not aware of who the other directors of Calla were. It was put to her that the reason why the bouncers emerged into the crowd through the small side door and not out the main double doors was so that they could fetch their batons from a room behind that small door on their way out. She denied this completely saying that they never used any weapons on that night and that they never have weapons. She said that the reason they did not go out the double doors was that the crowd was outside those doors trying to kick them in.
She also stated that the plaintiff had been barred from the premises for as long as she had been employed as a manager of the premises, and that he must have gained entry through a fire-door entrance as the doormen would surely have recognised him coming through the main door. In any event the plaintiff was known to be in the premises on the night and was not ejected or asked to leave because a decision was made that it would probably cause more trouble to do so, and that in fact there had been no trouble that night before the incident after he had left the premises. She felt that it was better simply to keep an eye on him during the course of the evening.
Clive Leydon:
Evidence for the defendants was also given by Mr Clive Leydon, who was a barman and who also had some responsibility for the bedrooms and function room within the hotel itself as opposed to the night club area. He was responsible for the cash receipts in the bars and as part of his duty he would remove the cash to an office upstairs. He was employed by the company named as the fifth named defendants, Crooked Staff Limited. He said that in all his time in these premises he had never seen any security men with batons or other weaponry, and that most of the doormen were older men with families. He said that on this night he had gone to the night club area to do the cash, and he became aware that an incident had occurred which had resulted in some windows being broken on the bedroom corridor of the hotel. He was concerned that the residents in some of those bedrooms were alright. He said that the incident itself had been a very frightening and traumatic experience. As he looked down a corridor he was hit on the head by a bottle which had come through a window. He retreated to the night club area, and also stated that there was quite a crowd outside and that he briefly saw a bouncer whom he named as John Murphy, in confrontation with somebody. He felt that this crowd was very agitated and ready to use force. Under cross examination he conformed that he worked for Calla Associates Ltd, and that all the bouncers worked for Calla. He also said that in fact it was Mr Christopher O’Reilly, who was involved in the bar area, who paid the bouncers and himself their wages, and that his P60 refers to Crooked Staff Limited as his employer. He also confirmed that Mr O’Reilly was there most days from about 10am, and he would enquire about whether there were any problems with staff or functions, and that in relation to annual leave, it was Mr O’Reilly he would go to. He was asked whether the bouncers would report to him (Mr Leydon), but he said they did not and that he had no responsibility in relation to security matters.
Liam Connolly:
Liam Connolly gave evidence that he had been a part-time doorman for about 8 years, and that at the time of this incident he would have been about 40 years of age. He has never had any trouble as a doorman, and has never either used or even carried a baton as part of his duty as a bouncer. He also said that he had never worked with any other bouncer who used a baton. He has never brought a baton to work, and that this night club was not a dangerous place, and that if it was he would go and work elsewhere.
He remembered that on this night there had been a bit of trouble at the cloakroom queue and that a man had received a blow with an open hand, and that it was not a punch as such. He and another bouncer walked the man to the front door of the night and that there was no resistance. This man was of course the plaintiff, and while Mr Connolly remembers a bit of shouting he took no particular notice of it. He says that at this time the plaintiff asked for what he referred to as ” a straightener”. I gather this is a somewhat euphemistic reference to an opportunity to settle differences outside. He remembers a crowd gathered outside the doors, and that when the doors were closed, some people started to kick the doors. He says that the plaintiff and others were kicking the doors, and that the doorframe was beginning to give because the door itself was plated with steel. He says that he and some other bouncers went out by the side door in order to try and calm things down. He says that when they went out they were jumped upon by the crowd and that there was a lot of glasses and bottles being thrown. He says that he saw the plaintiff on the back of the bouncer named John Murphy and that he pulled him away from Mr Murphy. He goes on to state that he was knocked into the corner at the double doors, and saw what he described as “sticks, stones, bottles and ashtrays” thrown at the double doors. It would appear that at this point those still inside the doors pulled Mr Connolly back inside the premises. He said that he had never seen anything like this before. There were windows broken in the hotel corridor and he says that people in the crowd were pulling stones up from the grass verge and throwing them at the premises.
Mr Connolly was cross examined and was asked about whether the plaintiff was wearing a jacket when he saw him outside. He could not remember. It was put to him that one of the bouncers must have struck the plaintiff but he denied that this had happened and stated that he had simply seen some wrestling going on with John Murphy, and that he had pulled the plaintiff off Mr Murphy’s back. He does not know how the plaintiff sustained his injury. He says that he certainly used no baton but said he could not speak for the others. He also suggested that perhaps the injury was caused by a glass being thrown. In relation to how he was paid his wages he stated that he would be paid in cash at the end of an evening by Sharon Lawless, and he has no knowledge as to who she works for.
John Murphy:
He was employed as a doorman at these premises since about 1987 and he says that his wages were paid to him by Ms. Lawless. He stated that the doormen were not permitted to have batons or iron bars. On this night he was on duty at the night club from about midnight. He walked around and saw some people who he knew to be barred from the premises, but that it was decided to leave them alone as there had been trouble with them before. Nothing in fact happened that night until the incident giving rise to this case. Mr Murphy gave evidence about the incident at the cloakroom queue, and he said that after the plaintiff was put out there were a lot of people coming and going at the entrance lobby. Eventually, he say that they got the doors closed, but that people outside then started kicking at the doors. He says that he looked out through a spy hole in the door and saw maybe seven or eight men, some of whom he recognised, including the plaintiff, and who were all engaged upon kicking the door and shouting abuse at those inside. He described how the force of the kicks was beginning to disturb the plaster around the door frame, some of which was falling to the ground. He stated that at that point they were in some trouble with the crowd. He stated that they decided to use the small side door and when it was opened he states that sticks, bottles, glasses, stones etc came raining down on them. He described being grabbed and that it was “complete mayhem”.He also stated that some windows had been broken prior to this. He says that he was grabbed by the plaintiff, and that the plaintiff had pulled Mr Murphy’s coat over his head and that at this point someone pulled Mr Murphy off him and was pulled back into the premises. He says that the plaintiff was on his back, but that there were no blows, and that he was very frightened as was everybody else. He understood that the Gardai had been called on two occasions and were on their way at this time. He says that when the Gardai arrived they were shown the broken windows and the damage to the doors. He says that about one month later the Gardai returned to the hotel in the company of the plaintiff who identified him (Mr Murphy) as the man who had assaulted him that night.
When cross examined he stated that he was the head doorman on the night. He also said that he could not be certain if he had pulled the plaintiff’s jacket off. It was put to him that security had broken down on this night, but he replied to the effect that it depended how you looked at the situation, and that people were there who ought not to have been there. It was possible, he said, that some of the doormen may not have known who these people were when they arrived. He also confirmed that some of the people who had been outside the doors kicking the door and shouting were some of those who were barred from the premises.
In relation to putting the plaintiff outside the door he stated that it was not a major problem. Mr Murphy stated that because of the scale of the melee outside the premises it was necessary to go out all together rather than one person going out on his own. He says that he may have been the first man to exit, possibly the second, and certainly was not the last. He says that he did not head straight for the plaintiff. He described again the hail of stones, bottles, rocks etc that came down upon them when they went out. He said also that what happened in relation to pulling the plaintiff’s jacket in fact occurred during the earlier encounter when he was putting the plaintiff out of the premises, and not after the bouncers went out of the small door. He says that on this latter occasion he did not go anywhere near the plaintiff, and that he never carries a baton and did not have one. He presumes also that none of his colleagues had batons as it was not permitted by the Management. He also stated that he was not aware that the plaintiff had received any injury until the occasion when the Gardai called to the premises about a month later.
Evidence was also given by Ms Ann Groome who had a franchise for the kitchen on the premises. She says that at about 1.45am she set up her stand near the exit in order to serve hot food to patrons leaving the premises. She saw a good deal of what took place, but her evidence adds nothing further to what has already been set out by way of summary of the evidence given.
Garda Pat Hession from Rathfarnham Garda Station also gave evidence of having been called to an incident at the Grange Hotel on this night. When he arrived he saw a man standing beside a telegraph pole with blood on his face. He spoke to the man and enquired if he wanted any medical attention and whether he had any complaint to make. The man said he did not. This was a short distance from the hotel premises and the Gardai then proceeded to the premises where he saw a lot of broken glass in the car-park and there may have been stones also. He also saw two broken windows near the entrance to the disco area. By this time the crowd had disappeared from the car-park.
Mr Sean Moylan SC on behalf of the defendants submitted at the close of the evidence that there was no evidence whatsoever that any of the bouncers was employed by the second named defendant, Christopher O’Reilly. It will be recalled that at the commencement of the case, he had accepted that these men were the employees of the first named defendant. He submitted that the evidence showed that the bouncers were all paid by Calla. This is a reference to the evidence that they received their wages at the end of the night in cash from Ms. Lawless, the Manager employed by Calla. He urged that there was one body in control of these premises and that was calla, and not Mr O’Reilly who was the holder of the licence and who had charge of the bar facility.
Mr Richard McDonnell SC on behalf of the plaintiff urged on the other hand that under the provisions of the Occupiers Liability Act, 1995 an occupier is a person exercising control , and that where there is more than one such person, the critical factor is the degree of control exercised by each. Mr McDonnell stated that the plaintiff was led to believe that the 2nd named defendant was a mere licencee, but that the reality was that he was certainly in control of the bar areas, including the entrance fee paid by patrons to the night club, and that there was no evidence as to who benefited from that fee. He also stated that the evidence had shown that in fact Mr O’Reilly was very active on a day to day basis in relation to the management of the premises. Therefore Mr McDonnell submitted that since the plaintiff was a visitor to the premises on this night, Mr O’Reilly cannot abrogate his responsibility on the basis that he does not pay the wages of the bouncers. He submitted that Mr O’Reilly was not a mere licencee but was to be regarded as a joint occupier with a joint responsibility for what happened on this night.
In response Mr Moylan highlighted the need to look at the degree of control; exercised by a person in relation to a premises when deciding whether they came within the definition of an occupier under the said Act.
Before stating my conclusions, I want to refer to a document which was handed to the Court, namely a copy of an Agreement dated 22nd September 1992 made between Calla Associates Limited and Christopher O’Reilly. By this document, Calla lets the premises in question to Mr O’Reilly, including all contents and fixtures and equipment on a week to week basis until terminated, and it is stated that “This letting is made for the temporary convenience of the Lessor until such time as it may require the premises for its own use for trading purposes, or for the use of any person nominated by the Lessor…”
Paragraph 4 thereof states that the Lessee shall carry on the business of a licensed hotel and public bar business “and with the right to hold public dances in the premises in accordance with the licences in force from time to time………and shall do all things necessary to ensure that the premises are conducted as an hotel in accordance with the standards and requirements of Bord Failte………”
Paragraph 5 provides that the “lessee shall fully comply with all the requirements of the Intoxicating Liquor Acts in relation to the conduct and management of the premises and in particular in relation to the non-admission of persons under a legal age, the hours of opening and closing the premises whether the statutory provisions in force, or by virtue of special exemptions or otherwise granted in respect of the premises and he shall co-operate with the Garda authorities in relation to such matters as required from time to time.”
The Agreement contains many more covenants on the part of Mr O’Reilly which one would expect to find in a document of this kind, including one which states that a weekly rent of an unspecified amount but one which shall be agreed from time to time, shall be paid to Calla by Banker’s Order; another which obliges Mr O’Reilly to keep the premises in good order; another by which the Lessee shall be responsible for all claims which may be brought by members of staff under the heading of Employers Liability; and another by which Mr O’Reilly covenants to conduct business in the hotel “in a manner consistent with the grading and status of the hotel, as a licensed hotel having a Public Dance Licence.
The Lessor on the other hand covenants with the Lessee, Mr O’Reilly in a number of matters of relevance, including the following:
“B. To keep the premises hereby let insured against all risks which the Lessor shall decide, such risks including fore insurance on the premises and contents thereof, and all public liability insurance, but excluding Employers Liability which shall be the responsibility of the Lessee and the Lessor covenants to indemnify the Lessee against all public liability claims that arise from incidents or occurrences during the term of the letting, save and except such claims that may be repudiated by the Lessors Insurers or Underwriters by reason of breach on the Lessee’s part of conditions contained in the relevant insurance policies in force………The Lessor shall have the interest of the Lessee as occupier noted on all relevant policies and the Lessee covenants to cooperate with the Lessor in relation to the making of all claims under the various Insurance Policies in force ……..” (my emphasis)
Neither Mr O’Reilly nor Mr Philip Smyth gave evidence to this Court, so I am entitled to assume that this agreement was still in force at the time of this incident. The precise nature of the arrangement between the two parties is somewhat unclear, given the fact that under the terms of the agreement it is the Lessee and not Calla who are to be responsible for staffing, whereas the evidence has been that Ms Lawless paid the security staff who say that they were employed by Calla as was she also. I have no idea of the precise nature of the arrangements as far as who received the proceeds of the night club’s takings are concerned, such evidence being quite easily provided by the defendants if they had chosen to lead it. Mr Moylan was obviously instructed to indicate to the Court that it was accepted by the first named defendant that the bouncers were in the employment of Calla, but in view of the fact that the only evidence which I received in relation to that matter was from Ms. Lawless and not from either of the principals, I am entitled to look behind that concession or admission in the particular circumstances of this case. I prefer to look at the matter from the point of view of the documents, and in particular the said Agreement, which must have formed the basis of the Ad Interim Transfer of the licence to Mr O’Reilly, and as I understand the position to remain that Mr O’Reilly was on the date of this incident still the holder of the licence.
It is clearly recognised in this Agreement that Mr O’Reilly’s interest as occupier is to be noted on the insurance policies which the Lessor Calla has covenanted to put in place. It is also clearly stated as one would expect that Calla will indemnify Mr O’Reilly against all Public Liability Claims arising from incidents at the premises. That implies that Mr O’Reilly is intended to be the first target of any such claim, and that Calla will simply indemnify him in respect of same. I do not believe that the fact that the bouncers are stated to have been paid in cash at the end of the night by an employee of Calla can render nugatory the terms of a legally binding agreement which has formed the basis of a licence transfer in the District Court and under which Mr O’Reilly holds the licence to run the premises. I am not privy to what precise arrangements have or have not been made outside the terms of that agreement, and they ought not to interfere with what appears to be the legal position arising from the document itself.
It is also relevant that under the Agreement, as set forth above, Mr O’Reilly has responsibility for Employee Liability insurance claims, as well as ensuring that the premises are run properly.
In my view there is such a mingling of functions between both Calla and Mr O’Reilly, according to the evidence, and such a relationship created by the Agreement, that it can reasonably and properly be said that both the defendants are occupiers of the premises and that each owe a duty to the visiting public, including the plaintiff. Since the Agreement actually refers to Mr O’Reilly as an occupier for the purposes of insurance, he cannot now say that he is not an occupier, particularly as he is the holder of the licence by virtue of the Transfer of the licence to him by virtue of this agreement. Equally, Calla has accepted that as a matter of fact the bouncers were their employees. I am satisfied therefore that the liability to the plaintiff is one which is joint and several. The plaintiff ought to be entitled to recover from either defendant, and the paying defendant will be entitled on the basis of joint ands several liability to recover appropriately from the non-paying defendant.
As far as the facts giving rise to the injury to the plaintiff is concerned, I make the following findings of fact. The plaintiff and some of his friends were lawfully upon the premises on the occasion having been admitted, even though the plaintiff and possibly some of his friends were barred. I have no doubt that the disturbance at the cloakroom was orchestrated by the plaintiff and that the security staff at the entrance were entitled to remove the plaintiff in the manner they did prior to closing the double doors. I am satisfied that the plaintiff then orchestrated further disturbance from outside which commenced with the kicking of the doors and the shouting of abuse, and I am also satisfied that this initial disturbance led inevitably to the wider disturbance which resulted in the hurling of missiles of various kinds at the premises and which resulted in some damage to windows. In my view up to this point, it is on the balance of probabilities reasonable to attach full blame to the plaintiff, who I am satisfied was the ringleader of what occurred, although I am not fully aware of what grievance he had that night having been allowed remain in the premises, or why so many people outside the premises would have seen fit to join him in his violent exploits outside. It was not simply the few friends he was with. I am satisfied that up to 25-30 persons may have been involved.
The evidence of what happened after the bouncers emerged from the small side door is less clear. There is conflicting evidence which has been given by each side. In addition some of the evidence given in court by the plaintiff and his eye witnesses is inconsistent in at least some respects with what they may have stated to the Gardai when they made their statements. Indeed if it were not for the undoubted fact that the plaintiff attended immediately at St. Vincent’s Hospital that night and for the evidence of Mr Cassidy as to the serious nature of the injury and that it must have been inflicted by a heavy blow from a blunt instrument, this Court may not have been able to be satisfied to the degree necessary that the injury was sustained in the scuffles that took place outside these premises. But it is the independent evidence of the injury itself, the manner in which it must have been inflicted and the fact that the plaintiff was immediately brought to the hospital which satisfies me on the balance of probabilities that he was injured by a heavy blow to the face outside the premises. The remaining question is who may have inflicted the blow given the sworn evidence of some of the men who formed part of the security team on this night that none of the men used weapons of any kind. It is not possible to reconcile that evidence with the objective evidence of injury. I accept the evidence that it was not management policy that weapons of any kind should be available for use or used at the premises. But I am not satisfied that the suggestion that the plaintiff may have sustained his injury from a flying glass or other missile, rather than from a blow delivered by one of the security staff, given the very clear and convincing evidence from Mr Cassidy that this injury must have resulted from a heavy or severe blow from a blunt instrument. While I cannot go so far as to accept everything that was said in evidence by each of the witnesses called by the plaintiff, I am sufficiently satisfied on the balance of probabilities that at least one of the bouncers must have had a weapon even if he ought not to have under the management guidelines. There is no other plausible or reasonable explanation for the injury to the plaintiff which I am satisfied was inflicted outside these premises.
Another matter to be addressed is whether in the circumstances which have been described the actions of the bouncers were justified in the sense that if the plaintiff was injured in the way he was, whether those actions constitute more than reasonable force, and therefore amounted to negligence, and whether the claims of negligence as made out in the Statement of Claim are properly made out. In my view the owners/occupiers of a premises such as that in this case are reasonably entitled to employ suitably trained staff in order to ensure as reasonably and lawfully possible the business of the premises is conducted in a proper fashion, and that the safety of those who patronise the premises, as well as those who work in the premises, and the premises themselves are properly safeguarded against violent or other improper conduct by other persons. The owners and occupiers of the premises are also obliged to ensure to a reasonable extent that the said staff members are supervised in the sense that there is some management control and guidance as to how they carry out their duties. It is alleged in this case that the first and second named defendants failed to employ competent security staff. I do not find that plea made out. The only evidence which I have heard satisfies me that the staff concerned were experienced and that the manager provided appropriate guidelines.
It is also pleaded that that they failed to adequately or at all supervise the conduct of the security staff on this occasion. Again, there appears to have been a management presence at the entrance area on the night in question.
It is pleaded also that the defendants:
“caused allowed or permitted the said servants or agents acting for and on behalf of the defendants on the occasion to act in a violent, aggressive, bellicose, threatening and intimidating manner on the occasion and to assault and beat the plaintiff as occurred on the dates in question.”
The relevant plea contained in the Defence delivered is that contained at paragraph 9 in which it is pleaded that:
“the staff present used no more force than was reasonably necessary in the circumstances to defend themselves, their colleagues, the premises and other patrons.”
The defendants have also pleaded contributory negligence on the part of the plaintiff on the basis that he was violently attacking the premises and was violently attacking members of the staff and was “engaging in behaviour whereby it became essential for the members of the staff present at Marley’s Club to protect themselves and others from assault.”
I should perhaps at the outset deal with the plaintiff’s plea in the Statement of Claim that the defendants are in breach of statutory liability to him by virtue of failing to comply with Section 3 of the Occupiers Liability Act, 1995. Section 3, subsection (1) of that Act provides that an occupier of premises owes a duty of care towards a visitor, except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5. Section 3(2) provides that this duty is to take such care as is reasonable in all the circumstances to ensure that a visitor to the premises “does not suffer injury or damage by reason of any danger existing thereon.” It is important to note that the word “danger” is defined in Section 1 as meaning “in relation to any premises, means a danger due to the state of the premises.” It must follow from this that the plaintiff’s claim is not one coming within the duty of care imposed by Section 3 as the allegations of negligence are not related in any way to the state of the premises but rather the behaviour of the bouncers on the night in question. It is necessary to consider this claim by reference to the more usual non-statutory criteria in relation to the possible breach of the common law duty of care owed to the plaintiff by the owners/occupier of the premises, diluted possibly by the contribution which the plaintiff’s own behaviour made to what befell him at the hands of their employees, servants or agents.
As I have stated the defendants are perfectly entitled, indeed it could be argued that they would be obliged, to employ suitably trained and supervised security staff, bearing in mind the nature of the premises to which they admit their patrons, namely a night club where the sale of intoxicating liquor is sold, and a large number of persons are in all likelihood going to congregate, in order to ensure that the safety of the patrons, staff and the premises is safeguarded. In this case there is no doubt in my mind that since the plaintiff gained admission and his presence there was at least permitted throughout the evening, the necessary relationship of proximity exists for the purpose of establishing the duty of care. The fact that he had been barred previously and ought not to have gained entry is irrelevant since he was known to be there and was observed throughout the evening. A decision was apparently taken that he would not be removed.
It is trite law that these security staff members are not entitled to use more force than is reasonably necessary in any particular circumstances which might present during the evening. Each case will have to be considered on its own facts, since the variety of situations giving rise to intervention by security staff in this type of premises is infinite. But the requirement to use only reasonable force never disappears. It is beyond doubt that it is reasonably foreseeable that an excessive use of force by staff of this nature has the potential to cause injury to others. The next hurdle to be overcome under the test for liability as pronounced by Keane CJ in Glencar Exploration Limited v. Mayo County Council [2002] 1 ILRM 481 is to exclude any public policy consideration which ought to exclude liability arising. In my view there could be no public policy consideration which should result in no duty of care being owed by employers of security staff to members of the public in the circumstances of facts such as have occurred in this case. In fact the opposite would be the case, since a situation would then exist in which security could go about their tasks with complete impunity regarding the level of force they might use, and in effect a situation would exist where it was permissible for the owners of licensed premises and other such premises to hire their own private army in order to enforce their version of law and order. That could never be acceptable. The final hurdle to be overcome by a plaintiff under the Glencar principles is that the Court must be satisfied that it would be fair, just and reasonable that the law should impose a duty of care on the defendants for the benefit of the plaintiff in this case. That consideration is for the purpose of this case quite closely linked to the public policy consideration, and there is also some blurring between consideration of that concept of fairness and reasonableness and the concept of any contributory negligence on the part of the plaintiff. One could consider the concept of fairness, justice and reasonableness also from the point of view of the ‘ex turpi causa’ principle. In other words, the actions of the plaintiff as proven in this case are so egregious that he ought not to be allowed to recover damages for an injury sustained which results from that behaviour.
The latter methodology must in my view be reserved for the very worst type of behaviour in order to serve the punitive purpose of denying an injured plaintiff any remedy for otherwise culpable behaviour on the part of a defendant. I believe that in the present case it is fair, just and reasonable that the defendants remain under the duty of care towards the plaintiff and other patrons even in the unpleasant and potentially dangerous circumstances which arose outside the premises on this night. The whole purpose of the job of being security staff member is to deal with situations which arise in premises of this kind and which cannot be reasonably dealt with by what I might conveniently describe as ‘ordinary staff’. It is part of the normal working life of such security men to encounter patrons in various states of intoxication, and who even when not intoxicated, are nevertheless aggressive and sometimes violent. Such staff ought to be, and in most cases, are trained to deal efficiently with such situations. It is perfectly fair, just and reasonable that such persons should carry out their duties in a way which is consistent with a reasonable use of force and restraint, and I can see no reason why any special dispensation should be extended to them in the manner in which they carry out their tasks.
I am satisfied therefore that a duty of care was and ought to be owed by the defendants and their servants and agents towards the plaintiff, and that this duty extended to avoiding causing injury to the plaintiff through an unreasonable or unnecessary use of force or violence in dealing with the situation which existed outside the premises in the car park. In this case, a decision was taken at some stage that the appropriate action to take was to allow the bouncers to run out of the side door and get in amongst the crowd outside and disperse them. In my view the appropriate course of action was to contact the Gardai and to wait for them to arrive in order to deal with the situation. In the present case that was done according to the evidence, but the management did not wait for the Gardai to arrive. This was not a disturbance within the premises themselves. It was a disturbance outside. The staff of the premises were inside the premises, and even though there may have been some shouting and kicking of the doors, and even a couple of windows broken, it does not seem to me that it was appropriate for the management to send out their own troops, so to speak, in order to break up the disturbance. That action led to direct confrontation between the troublemakers outside and the security staff and it was inevitable that somebody would be injured.
In the case of the plaintiff, as I have said, I am satisfied on the balance of probabilities that he was the ringleader of the trouble which happened. As such he would have been the object of the Garda attention following any complaint by the defendants when the Gardai arrived. The fact that he may have been the instigator of much of the disturbance does not mean that the security staff can single him out in any way or treat him with more than reasonable force. There is no doubt in my mind that it was an unreasonable use of force to hit him so severely in the face with some sort of heavy blunt instrument that he has effectively been rendered blind in his right eye. I am satisfied that this is how the injury was sustained. Even if a security man did not intend to cause an injury of that magnitude, it matters not. It was a reckless, negligent and dangerous act committed after the security staff had taken the inappropriate step of going out to themselves deal with the trouble outside, rather than allowing the members of An Garda Siochana to arrive and intervene. What happened amounts to negligent behaviour giving rise to a right of recovery on the part of the plaintiff.
However, the plaintiff has to share in the responsibility for what happened to him that night. His involvement, as found by me, amounts to contributory negligence. The question as always is to what degree. One is more accustomed to assessing contributory negligence in the context of a car accident or an accident at work. In such cases it would be unusual to make a large deduction on account of contributory negligence, because in most cases the element of contributory negligence arises due to perhaps not wearing a seat-belt, exceeding a speed limit, failing to observe an on-coming car and so forth. What I am trying to convey is that in such cases the plaintiff is guilty of relatively minor negligence not worthy of being severely marked by a large reduction in damages. In the present case the plaintiff’s behaviour is of a different character. It was criminal behaviour such as should not be implicitly condoned by a sympathetic approach to contributory negligence. It cannot be equated to the type of contributory negligence more commonly found in road accidents or workplace accidents. It is culpable behaviour for which the plaintiff must retain responsibility. In my view, even though the defendants are liable to him for an unreasonable use of force, and even though the Court feels great sympathy for the fact that the plaintiff has now only the use of one eye, he has himself to blame to a significant extent, and to an extent far in excess of the more normal type of case to which I have referred. In my view it is right to attribute to the plaintiff a finding of contributory negligence to the extent of 50%.
As far as damages are concerned, I assess general damages for the loss of sight in the right eye, and the scarring due to the blow received in the sum of €100,000. I take into account the fact that the plaintiff is a young man and that given the normal expectation of life, he could have to live with this disadvantage for about 50 years. His employment prospects have not in my view been affected adversely given his employment history to date, and it has not been urged upon the Court that such ought to be taken into account in any specific way.
Allowing for the finding of contributory negligence, I therefore give against the first and second defendants for the sum of €50,000, and the usual order for costs, to include all reserved costs, to be taxed in default of agreement.
Approved Peart J.
Doran v Bus Eireann/Irish Bus
[2016] IEHC 19,
JUDGMENT of Mr Justice Max Barrett delivered on 15th January, 2016.
1. On 28th February of last year, Mr Doran was driving his car across Butt Bridge in Dublin City Centre. His girlfriend was in the car. Just after they crossed the bridge, the car gave out and Mr Doran had to pull into the side of the road. As luck would have it, the place where the car came to a halt was an area where buses belonging to Bus Éireann stop and park. Mr Doran pushed the car back to create the maximum space for any buses pulling in. He then called for a recovery vehicle and waited in the car. His girlfriend, who was hurrying to an appointment, left him around this point. It took 1½ – 2 hours for the recovery vehicle to arrive.
2. During the period that Mr Doran was waiting for the recovery vehicle, a number of buses belonging to Bus Éireann came up behind his car. When they did, Mr Doran waved them on. A couple of bus-drivers may have asked him what was happening; not a lot turns on whether they did or not. For the purposes of this judgment, it suffices to note that Mr Doran waved at a number of bus-drivers to continue on and they did so without any difficulty arising.
3. One driver acted differently. It is his actions that have led to the within proceedings. That driver drove up close behind Mr Doran’s car and sounded the bus-horn. There was nothing wrong in this. Mr Doran was parked in a bus-space and the bus-driver told the court in his oral evidence that he had previously been advised by more senior drivers that, if he encountered such a situation, a quick beep on the bus-horn is usually enough to get the parked driver to move on. This chimes with common-sense. However, Mr Doran could not move on. He rolled down his window and gestured at the bus-driver to continue on. When the bus-driver sounded the bus-horn yet again, Mr Doran got out of his car to explain the predicament in which he found himself. However, the driver refused to open the window on the driver-side of the bus and was clearly intent that Mr Doran should move on. Mr Doran gave up trying to explain and got back into his car; he was not a man angling for a fight.
4. If only the bus-driver had waited for a space to clear ahead, nothing more would have come of matters. Instead he got out of the bus, approached Mr Doran’s car – the driver-window of the car was open – and indicated tersely that Mr Doran should move on. Mr Doran tried to explain himself again, at which point he was treated to some foul and aggressive language. Perhaps if the language had just been the usual exchange that happens in a thousand heated moments around the city every day that would have been the end of matters. But what seems to have riled Mr Doran – and what would have riled the author of this judgment if, like Mr Doran, he were a black man – is that this foul and aggressive language was not only very coarse; it also made reference to Mr Doran’s skin-colour.
5. The bus-driver admits to the foul and aggressive language and, to his credit, is regretful that he used it. But he denies that he used the racial epithet. Having listened carefully to the evidence of Mr Doran and the driver, the court prefers the evidence of Mr Doran in this regard. In giving his testimony, Mr Doran struck the court as a calm gentleman who is soft-spoken and unlikely to be roused quickly to blind temper. Indeed his equanimous nature is such that Mr Doran stated in evidence that he was not even especially put out by the break-down, something that might cause some stress to the best of us. He appears to have viewed it as ‘one of those things’ and was satisfied to wait for the recovery vehicle after his girlfriend had headed off to her appointment.
6. The bus-driver, by contrast, admits that he used foul and aggressive language; the language does not bear repeating in this judgment but it was very coarse indeed. That said, it is important not to over-state matters: the driver seems a generally decent man; in his evidence it seemed to the court that he rather regrets those actions to which he has admitted. However, the forcefulness and vulgarity of the language he used on the day in question shows that, for whatever reason, he was very ‘het up’. It is not difficult to believe that he used a racial epithet when in such a state and the court considers that as a matter of probability he did. The court accepts the driver’s evidence that he has no aversion generally against people who are black -and any such aversion would, of course, be utterly objectionable. And, no doubt, if the driver were back again he might have acted differently. But he did what he did, and – the court finds – he said what Mr Doran alleges him to have said.
7. Matters do not end there. As mentioned, when the bus-driver approached Mr Doran’s car, the driver-window of the car was open. The bus-driver unleashed his diatribe and moved in such a way as to cause Mr Doran instinctively to recoil to his left, thinking that the bus-driver was about to hit him. The court has no difficulty in accepting this as true. Many people up and down the country have likely seen, or been at the receiving end of, instances of so-called ‘road rage’, i.e. incidents in which people of generally good standing so lose their composure as to put the target of their rage in fear of physical attack. Mr Doran was sitting down, he was in his car, he knew he was blocking traffic, he had tried to explain, had got back into his car, and was now confronted by the bus-driver who was using foul and aggressive language. Frankly, the court almost recoils from the apparent imminence of a battery as it describes the events that transpired, never mind Mr Doran.
8. In passing, the court notes that there was some dispute in the evidence of Mr Doran and the bus-driver as to whether the bus-driver placed his hands on the car while addressing Mr Doran. Though one can see how a person leaning to speak to (or harangue) a person seated in a car might rest his hands on the car-frame, the court cannot conclude, as a matter of probability, from the testimony before it, that the bus-driver did so here.
9. Another Bus Éireann employee, a colleague of the defendant, gave evidence in court that he had been travelling as the sole passenger in the bus when it drew up behind Mr Doran’s car. He indicated, consistent with what the bus-driver stated in his oral evidence, that when the bus-horn was sounded, Mr Doran immediately reached out of his car and made a rude gesture – with the bus-driver indicating, in effect, that all that followed on his part was the natural reaction of a driver who had been treated to such gratuitous rudeness. Neither the evidence of the bus-driver nor his colleague rings true in this regard. That is not to say that they were telling lies; it is merely to state that what they believe themselves to have seen does not seem to the court to be either a likely or correct reflection of what in fact occurred. Their evidence does not sit easily with the impression that the court garnered of Mr Doran’s general demeanour. It does not sit easily with the fact that Mr Doran had waved other buses on without encountering any difficulty. And it does not sit easily with general experience: Mr Doran may have been relatively nonchalant at being caught the way he was when his car broke down; even so, he was clearly sensitive to the fact that he was causing an obstruction on the road. That he was sensitive to this is evidenced by the fact that Mr Doran pushed his car back to facilitate arriving buses as much as he could; and he kept alert to the arrival of such buses, waving drivers on while he awaited the recovery vehicle. Mr Doran was, in short, doing all he could reasonably do in the situation in which he found himself. It does not ring true that such a man would suddenly depart from this entirely reasonable course of behaviour and start making rude gestures at the first approach of the next bus. What the court considers more likely to have occurred is that Mr Doran reached his hand out of the car to wave the bus on – as he had with other drivers – that this was mistaken as a rude gesture and that the bus-driver then continued testily to insist that Mr Doran move his car.
10. The court’s sense that the balance of probabilities favours Mr Doran’s version of events in all respects, save as regards the bus-driver’s placing his hands on Mr Doran’s car, is buttressed by what Mr Doran did after the principal events complained of. He used his phone to take a photo of the identifying number on the rear of the Bus Éireann bus so that he could make a complaint in due course. This is hardly the behaviour of a man who thinks that he may be in the wrong. He made prompt complaint to a member of An Garda Síochána soon after the events. This is hardly the behaviour of a man who thinks that he may be in the wrong. The following day, when the heat of the moment was gone, he was so upset by what had happened that his girlfriend (not Mr Doran) e-mailed Bus Éireann and, in the course of a reasonably worded complaint, indicated that Mr Doran was “distraught”. Again this seems a to-be-expected response on Mr Doran’s part. In the end, Mr Doran was so vexed by what occurred that he went to see a solicitor. This is hardly the behaviour of a man who thinks that he may be in the wrong. Through the agency of that solicitor, Mr Doran sought on-bus CCTV footage from Bus Éireann in the hope that the events complained of had been caught on camera. To the surprise of those of us who might think that nowadays every action on a public bus is recorded, no such footage has in fact proved to be available. Regardless of this, however, none of the just-described actions seems consistent with the behaviour of a man who thinks that he may be in the wrong; in fact it is consistent with the behaviour of a man who thinks that he has done nothing wrong, who has been exposed to an unexpected verbal onslaught that included an element of racial abuse, who is not going to let matters lie, and who wishes access to the best evidence possible to prove his case.
11. On 15th May, 2014, Mr Doran commenced an action before the Circuit Court seeking (a) damages for assault, battery and/or false imprisonment, (b) such further and other order as the court may see fit, and (c) certain ancillary relief. That action was unsuccessful and the matter has now come on appeal before this Court. There was no mention of the battery claim on appeal and rightly so: there is not a whiff of battery in the facts as the court finds them. As for the claim of false imprisonment, this derived from the fact that the bus-driver allegedly rested his hands on the door or frame of Mr Doran’s car, thereby containing Mr Doran in the car against his will for a matter of seconds. Even if this did happen, and the court does not find as a matter of probability that it did, the law does not concern itself with trifles (‘de minimis non curatlex’). Judges do not sit in judgment on extremely minor transgressions of the law; if they did, our system of court-administered justice would quickly grind to a halt, or become ridiculous, or both. So even if the false imprisonment did occur (and the court does not find that it did) no relief would follow in any event. That leaves the claim of assault.
12. An assault consists of an act that places another person in reasonable apprehension of an immediate battery being committed upon that person (Dullaghan v. Hillen [1957] Ir.Jur.Rep.10, 12; Read v. Coker (1853) 138 E.R. 1437, 1441). There is no reason why words in and of themselves cannot constitute an assault. When spoken in a context suggesting the imminent use of force, words suffice for assault. As Lord Steyn observes in R. v. Ireland [1998] AC 147, 162, “The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done.” Here, of course, there are acts as well as words: the bus-driver got out of his bus, came across to Mr Doran’s car, inclined to the driver-window of the car and launched into a foul-mouthed, aggressive, and racially coloured diatribe. Mr Doran instinctively recoiled at this point, convinced by both the forcefulness of the language and the approach and stance of the bus-driver, that the driver was about to hit him.
13. One point that has given the court cause for pause in this last regard is that the essential substance of what the driver was saying -absent the racial abuse and low vulgarity – was ‘If you gesture at me again, I will perform a certain act upon you.’ If one looks at these words in the quietness of a judge’s chambers, they comprise a conditional promise of future battery, with it being a matter for Mr Doran to satisfy the relevant condition before the battery will follow – albeit a condition formulated in the context of what the court considers was a mistaken apprehension on the bus-driver’s part that a wave to move on was in fact something quite different. However, it seems to the court that for it to adopt this line of analysis would be to stretch semantics to an absurdity. Life takes place in the real, and logic must yield to reality. The bus-driver in issuing his threat was not formulating a contractual agreement and his words do not fall to be construed as if he were. His approach to Mr Doran’s car was aggressive, the tone of his remarks was aggressive, the entirety of the episode was clothed in aggression on the bus-driver’s part, and the language used contained a conditional threat. In such circumstances, practical experience teaches that violence can very quickly ensue notwithstanding any initial conditionality upon which a threat of violence may be based. t is not surprising in all the circumstances presenting that Mr Doran thought that he was about to get a fist in the face and instinctively recoiled from the anticipated blow. The bus-driver, in prompting this reaction by the totality of his actions, committed an assault on Mr Doran. For that assault the payment of some level of damages must follow.
14. Our nation is now more culturally diverse than it has ever been, and is so much the better for it. When the court recalls the sometimes bland uniformity of yesterday and compares it with the rich diversity of today, it cannot but conclude that, as a nation, we are facing into an even brighter tomorrow. A sad irony of this case is that Mr Doran, an Irishman who is black, was racially abused by a white man who has come to this country from abroad and thus might himself be exposed – unacceptably, were it to occur – to some form of intolerance. The lesson the court takes, and that perhaps the bus-driver might wish to take from the above-described events, if the bus-driver has not already done so – and, again, he seems to be a generally decent man possessed of at least some level of regret over what occurred – is just how important it is in our ever more cosmopolitan culture that none of us ever descend, even in a moment of temper, into threatening language that does not reflect who we truly are or wish to be, and – worse – which casts a slur on another person’s race, or, to borrow from the equality legislation – and none of these factors present here – a person’s gender, civil or family status, sexual orientation, religion, age, disability, or membership of the Traveller Community.
15. The court will make an order as to damages, justice will have been served and, the court trusts, that will be an end of matters.
Buckley -v- Mullignan & Ors
[2016] IECA 264 (04 October 2016)
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Hogan J.
Judgment by:
Hogan J.
Status:
Approved
THE COURT OF APPEAL
Finlay Geoghegan J.
Irvine J.
Hogan J.
Record No. 2015/357
Liam Buckley
Plaintiff/Appellant
– and –
Eugene Mulligan, The Commissioner of An Garda Síochána, The Minister for Justice and Equality and Ireland and the Attorney General
Defendants/Respondents
Judgment of Ms. Justice Irvine delivered on the 4th day of October 2016
1. This is the appeal of the plaintiff, Mr. Liam Buckley, against the order of the High Court (De Valera J.) dated 18th December, 2013. That order was made following a six day hearing before a jury of his claim for damages for wrongful arrest, false imprisonment, assault and battery, and a further claim for damages for personal injuries allegedly sustained as a result of negligence on the part of the defendants in and about his arrest on the 24th September, 2011, at George’s Street, Drogheda.
2. It is common case that Mr. Buckley failed in his claims for wrongful arrest, false imprisonment, assault and battery. He was, however, successful in his claim for negligence albeit that the jury found him guilty of contributory negligence to the extent of 69%. The jury assessed his entitlement to damages in the sum of €16,875 with the effect that, having regard to his contributory negligence, he obtained an order for judgment in the sum of €5,231.25. As to costs, the High Court judge awarded Mr. Buckley his costs on the District Court scale limited to a two day hearing, when taxed and ascertained.
The appeal
3. Whilst a relatively extensive notice of appeal was filed on Mr. Buckley’s behalf, by the time the appeal came before this Court his grounds of appeal had been reduced to three in number. These may be summarised as follows:-
(i) That the award of general damages in the sum of €16,875 was inadequate having regard to his injuries and should be set aside as an error of law;
(ii) that the jury’s finding of 69% contributory negligence was grossly disproportionate having regard to the evidence; and
(iii) that the trial judge erred in law in making the costs order which he did having regard to the relevant statutory provisions.
Submissions of the parties
4. Mr. Burns, S.C., on Mr. Buckley’s behalf, submitted that a gross award of €16,875 was not proportionate or just having regard to the severity of his client’s injuries. He referred the Court to Mr. Buckley’s own evidence and to that given by the orthopaedic surgeons retained by the respective parties. They were agreed as to the extent of his injuries and as to his likely prognosis. He had sustained an un-displaced fracture of the malleolus and his left leg was in a cast for six weeks. He had then required some physiotherapy and remained somewhat symptomatic for a period of over two years.
5. Mr. Burns relied upon the Book of Quantum, published in 2004, to demonstrate the error of the jury’s award. In respect of fractures to the lower leg which were substantially recovered, the parameters advised were €15,400 – €34,600. Those values were significantly out of date and were, he submitted, approximately 50% below what a judge sitting alone would be expected to award for the equivalent injury. He relied upon the decision of this Court (Edwards J.) in Cronin v. Stevenson and Another [2016] IECA 186 in support of his submission that the parameters for an award for a fractured ankle at the time of the hearing ought properly to have been within the €25,125 – €52,950 range. Having regard to the severity of Mr. Buckley’s symptoms, his award should have been in the mid to upper end of this range of values.
6. As to contributory negligence, Mr. Burns accepted that he bore the onus of demonstrating that the jury had made a gross error when it apportioned liability as it did. He accepted that there was evidence to support a finding of contributory negligence on the part of his client, principally by reason of his alcohol consumption. As to the extent to which such consumption likely contributed to his injuries, counsel drew the Court’s attention to the fact that his client had been considered sufficiently sober to receive an adult caution thirty minutes after his arrival at the garda station. The jury’s finding should have been no more than 30% – 50% given that Mr. Buckley’s liability had to be assessed by reference to his blameworthiness for the injury sustained. Mr. Buckley had never previously been arrested and had not been involved in any disturbance on the night in question. His injury was sustained as a result of the fact that, in the course of his arrest, he and Gda. Mulligan had fallen to the ground. That fall occurred because they lost balance. He accepted that his client’s resistance to arrest would have been a contributory factor but submitted that Gda. Mulligan also contributed to the fall insofar as he had lent in over Mr. Buckley applying weight to him in the course of a turning manoeuvre. As to the extent of Mr. Buckley’s resistance, Mr. Burns relied upon his custody record which recorded the “circumstances of the offence” and which made no reference to his client having resisted arrest.
7. As to costs, Mr. Burns submitted that s. 94 of the Courts of Justice Act 1924 (the “1924 Act”) applied and that, in the absence of special circumstances, having succeeded in his action Mr. Buckley should have been awarded his costs on the High Court’s scale. Whatever about awarding him costs on the Circuit Court scale there were no circumstances to justify the limitations that had been imposed by the High Court judge particularly having regard to the fact that the award was low due to the manner in which the jury had apportioned liability. Mr. Buckley was entitled to pursue his action for wrongful arrest, false imprisonment, assault and battery before a jury and likewise his claim for damages for negligence, given that that cause of action arose out of the same set of facts. He could only have a jury trial in the High Court. Regardless of the fact that he had lost his claims for wrongful arrest, false imprisonment, assault and battery, those proceedings had been reasonably pursued and he had succeeded in his claim for damages for negligence. Thus, counsel submitted, Mr. Buckley’s entitlement to costs fell to be considered in the context of an action properly brought in the High Court.
Respondents’ submissions
8. Mr. Callanan, S.C., on the defendants’ behalf, accepted that the award made by the jury was somewhat frugal. However, it was not disproportionate to the point that it should be considered to amount to an error of law. The award came within the lower end of the range advised in the Book of Quantum. He submitted that an appellate court should afford a jury somewhat greater latitude than it would do a judge sitting alone when considering whether the award ought to be set aside on the grounds that it lacked proportionality.
9. As to the jury’s apportionment of liability, Mr. Callanan submitted that the plaintiff had not established that it had made a gross error as was required to displace its finding of contributory negligence. There was evidence to support a substantial finding of contributory negligence. He relied upon Mr. Buckley’s consumption of alcohol, the fact that he had resisted arrest and that he had been generally uncooperative.
10. As to the award of costs made by the High Court judge, Mr. Callanan argued that s. 17 of the Courts Act 1981 (the “1981 Act”), as amended, applied. The plaintiff had lost all of his causes of action that had entitled him to a jury trial and had only succeeded in his claim for damages for negligence. The test advised by Mr. Burns was, he submitted, one which was incapable of application. The judge’s determination as to the proper order to be made in respect of costs should not be based upon a consideration of whether or not a claim which had been unsuccessful had been reasonably pursued.
Relevant legal principles
11. The relevant legal principles and authorities require that awards of damages should be:-
(i) Fair to the plaintiff and the defendant;
(ii) objectively reasonable in light of the common good and social conditions in the State; and
(iii) proportionate with the scheme of awards for personal injuries generally.
12. Because the appellate court does not have the opportunity of hearing the evidence and assessing the credibility of witnesses, it should not readily interfere with an order made by a judge at first instance or indeed by a jury. That said, an appellate court enjoys jurisdiction to overturn an award of damages if it is satisfied that no reasonable proportion exists between the sum awarded and that which the appellate court considers appropriate in respect of the injuries sustained. In Rossiter v. Dun Laoighaire / Rathdown County Council [2001] 3 IR 578 at 583 Fennelly J. described the role of an appellate court in the following manner:-
“The more or less unvarying test has been, therefore, whether there is any “reasonable proportion” between the actual award of damages and what the court, sitting on appeal, “would be inclined to give” (per Palles C.B. in McGrath v. Bourne (1876) I.R. 10 C.L. 160).”
13. It is generally accepted that an appellate court should not engage in what might be described as petty interference with an award of damages and should only interfere if satisfied that the error in the award is so serious as to render it unjust or lacking in proportionality having regard to the injuries sustained. The proportionality test is particularly appropriate insofar as it can readily be applied to any appeal regardless of whether the complaint made by the appellant is one of excessive generosity or undue parsimony on the part of the judge or jury.
The appeal concerning the quantum of damages
14. Having considered the submissions of the parties and the evidence given in the Court below I am quite satisfied that the award of the jury in this case was not fair to Mr. Buckley and was sufficiently disproportionate to his injuries that the same must be set aside as an error of law.
15. I reject the submission made by Mr. Callanan that an appellate court should be slower to interfere with an award made by a jury than one made by a judge sitting alone. While he may be correct when he asserts that a jury is more likely than a judge sitting alone to make an award which is either overly generous or excessively frugal, I can see no logical basis for his argument that the appellate court should overlook such excesses if authored by a jury but not if authored by a judge.
16. It has to be remembered that the principles to be applied by an appellate court when considering an appeal from an award of damages in respect of personal injuries have not changed in any substantial way from those which applied prior to the abolition of juries in 1988. Accordingly, it is difficult to see on what legal basis the Court could adopt the approach advanced by Mr. Callanan. Further, the role of the appellate court in a personal injuries claim is to correct any error in the award made by the Court of first instance which would otherwise perpetrate an injustice on one of the parties. How could it be just and fair that a plaintiff who received an insufficient award of damages from a judge sitting alone would be entitled to have that wrong rectified while a plaintiff with similar injuries whose claim was dealt with by a jury should be denied such a remedy?
17. Mr. Buckley was twenty one years of age at the time he sustained his injury, namely, an un-displaced fracture to the left lateral malleolus – that is a bone at the bottom of the leg where it joins the ankle. He also sustained a mild strain to the ankle itself. A plaster of paris cast was applied to the lower leg for a period of six weeks during which period Mr. Buckley was on crutches. Thereafter he had a number of sessions of physiotherapy. Mr. Buckley told the Court that for approximately two years post injury he experienced pain in his ankle if required to walk any significant distance. Travelling over uneven ground produced similar symptoms. His ankle was somewhat stiff first thing in the morning and occasionally he had pain at night time. Two years post injury he was still taking anti-inflammatory medication on an intermittent basis and had still not regained full use of his ankle. While he was still complaining of some modest symptoms as of the date of trial there was little by way of evidence to suggest that he was in any way curtailed in terms of his work or leisure activities.
18. Mr. Owen Barry and Mr. Brian Hurson, the orthopaedic surgeons who gave evidence on behalf of the parties, were in substantial agreement as to the nature and extent of Mr. Buckley’s injuries and as to his prognosis. They accepted that his symptoms were consistent with the injury which he had sustained. On examination two years post accident he was found to have a two centimetre muscle wasting of the left calf and this, Mr. Barry considered, was consistent with the patient’s ongoing complaints. However, an MRI scan, carried out at that time was essentially normal thus allowing Mr. Barry to conclude that with further physiotherapy the plaintiff’s outlook was good.
19. The starting point for this Court’s assessment as to whether the award made by the jury should be considered so unsatisfactory such that it should be considered to amount to an error in law must be its own view as to the value of the plaintiff’s claim. In this regard s. 22 of the Civil Liability and Courts Act 2004 is of relevance insofar as it requires the Court, when assessing damages in a personal injuries action, to have regard to the guidelines contained in the Book of Quantum.
20. While the Book of Quantum suggests parameters of €15,400 – €34,600 for a fracture to the lower leg which has substantially healed, this 2004 publication is undoubtedly out of date. It is common case that awards, particularly at the upper end of the personal injuries spectrum, regularly exceed those advised in the Book of Quantum by as much as 50%. However, it does not necessarily follow that all of these indicative values, particularly those in respect of lesser injuries, should be considered to be 50% below what might be regarded as a fair or just award.
21. In my view, Mr. Buckley’s injuries must be considered to be relatively modest when assessed in the context of the entire range of personal injuries actions which come before the courts. Thus the compensation to which he is entitled must reflect that fact insofar as damages must not only be proportionate to the injury sustained but must be proportionate to those awards made in respect of other more serious or more minor injuries.
22. It is also undoubtedly the case that Mr. Buckley’s injury when viewed within the spectrum of potential ankle injuries is not one which could be described as significant or severe. He did not require any operative intervention or any period as an in-patient in hospital. The fracture was un-displaced and his risk of arthritis negligible. Mr. Buckley had made a reasonable recovery two years post injury albeit that it was anticipated he would have symptoms for some further period during which he would likely undertake some further physiotherapy. That being so, while his symptoms were not particularly debilitating, their duration had to be viewed as extending to a period of perhaps three years.
23. Notwithstanding my conclusion that Mr. Buckley’s injuries were relatively modest, I am quite satisfied that the award made by the jury was not one which satisfies the test of proportionality having regard to the nature of the injury, the extent of the treatment required and the duration of his symptoms. Having regard to the evidence concerning the plaintiff’s injuries and the legal principles to which I have already referred, I am satisfied that the award to which the plaintiff was entitled was in the order of €35,000. Hence the award made in favour of the plaintiff in the High Court must be considered to amount to an error of law on the part of the jury. That being so I would propose that the same be set aside in favour of an award of €35,000.
Contributory negligence
24. It is well established law that an appellate court should not interfere with an apportionment of fault made by a judge or jury unless satisfied that such apportionment was grossly disproportionate having regard to the evidence, (see Snell v. Haughton [1971] I.R. 305).
25. The difficulty for an appellate court when asked to interfere with a finding of contributory negligence made by a jury is that it has no way of knowing the evidence which the it relied upon to reach the apportionment which it did, in this case an attribution of 69% to Mr. Buckley. Further, it is impossible to discern whether the jury correctly approached its task by reference to its assessment of Mr. Buckley’s blameworthiness for his injuries. By way of contrast, in a personal injuries action tried before a judge alone, the Court will know from the judgment of the High Court judge precisely what evidence he or she relied upon to support their conclusion and will also be in a position to determine whether they correctly made their assessment, as required, based upon the moral blameworthiness of the parties for their respective causative contributions to the injury concerned.
26. Another difficulty for the appellate court in the present case is that it does not know how or when the jury concluded Mr. Buckley sustained his ankle injury. It is clear that they rejected the evidence adduced on his behalf to the effect that it was likely caused by Gda. Mulligan deliberately kneeling upon his ankle when he was lying down on the ground. It may have occurred in the course of the plaintiff’s fall to the ground or while on the ground after the fall.
27. As to the circumstances of the fall, the transcript reveals that Gda. Mulligan stated that he tripped and fell to the ground having lost his balance. This happened, he said, because Mr. Buckley had brought his arms up into the air in an effort to resist arrest. He stated that whilst locked together they turned and as they did so they lost balance due to Mr. Buckley’s resistance and the fact that he had to lean against him to bring his arms under control.
28. Regardless of whether this injury was sustained in the course of the fall or during the period while he was on the ground following the fall, it is difficult to find any evidence which would justify a finding on the part of the jury that Mr. Buckley was 69% blameworthy for his causative contribution to his ankle injury. While he resisted arrest thus contributing to the fall he did not do so in any type of aggressive fashion. He did no more than raise his arms up into the air to avoid being handcuffed. He did not, for example, swing a punch at Gda. Mulligan or take some other aggressive action likely to result in an engagement wherein injury might be sustained. Also, while he clearly had consumed excessive alcohol it is difficult to know from the evidence the extent to which that contributed to the fall in light of Gda. Mulligan’s evidence that he leant in on top of Mr. Buckley because he was resisting being handcuffed.
29. I am satisfied that the jury could only have come to the apportionment of liability which it did by mistakenly taking into account all of Mr. Buckley’s adverse conduct on the night in question rather than only that conduct which could be implicated as being causative of his injury. If I am correct in this assumption, the jury adopted an incorrect and impermissible approach to its consideration of the issue of contributory negligence with the result that it made a finding which was grossly excessive in all of the circumstances.
30. Given that the jury found the defendants guilty of negligence which was causative of Mr. Buckley’s injuries but in circumstances where the causative connection between his conduct and his injury cannot clearly be established from the evidence, it appears to me that this Court should properly apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961which provides that if it is not possible to establish different degrees of fault, liability should be apportioned equally. In light of my earlier conclusion that the plaintiff should be awarded a sum of €35,000 in respect of his general damages, having regard to his contributory negligence that award must now abate to a figure of €17,500.
The costs issue
31. The outcome of the plaintiff’s appeal in respect of the jury’s award of general damages and its finding as to the extent of his of contributory negligence has a significant impact on his appeal against the order for costs made by the trial judge and the submission made in that regard. It will be remembered that the plaintiff was awarded Circuit Court costs on the basis of a two day hearing, the same to be taxed in default of agreement. As no argument was advanced to challenge the two day limit placed on the costs order, I will confine my consideration of this issue to the statutory provisions that apply to an award of damages in the amount of €17,500.
32. The effect of s. 94 of the 1924 Act, notwithstanding its subsequent amendment by the Courts of Justice Act 1928, the Courts Act 1971 and the Courts Act 1988, is that Mr. Buckley was entitled to bring his claims for damages for false imprisonment, wrongful arrest, assault and battery in the High Court and to have them decided by a judge sitting with a jury.
33. Regardless of the fact that jury trials were abolished for personal injuries actions by s.1 of the Courts Act 1988, Mr. Buckley retained the right to bring his negligence action alongside his other claims because that cause of action arose out of the same set of facts as those material to such claims.
34. The relevant statutory provisions are as follows:-
Courts Act 1988
1.(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 , or any other provision made by or under statute, or any rule of law, an action in the High Court-
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(3) Subsection (1) of this section does not apply in relation to-
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.
35. While Mr. Buckley was entitled to seek to have his claim tried before a jury, he was equally entitled to bring his claims before a judge sitting alone in the High Court or before a court of lesser jurisdiction. Section 94 does no more than state that there is nothing to prejudice a plaintiff’s right to seek to have a jury determine various classes of claims, including those in respect of assault and false imprisonment.
36. In respect of costs payable in an action where a plaintiff has a right to a jury trial in a civil case, s. 94 of the 1924 Act, provides as follows:-
“…[S]ubject to all existing enactments limiting, regulating, or affecting the costs payable in any action by reference to the amount recovered therein, the costs of every civil action, and of every civil question and issue, tried by a jury in the High Court or the Circuit Court shall follow the event, unless, upon application made, the Judge at the trial shall for special cause shown and mentioned in the order otherwise direct; and any order of a Judge as to such costs may be discharged or varied by the appellate tribunal.”
37. Having elected to seek a jury trial I am quite satisfied that this is the section to which the High Court judge was bound to have regard when deciding what order to make in respect of the costs of the proceedings.
38. Section 94 of the 1924 Act was, however, amended by the provisions of the 1981 Act. In turn, s. 17 of the 1981 Act was substituted by s. 14 of the Courts Act 1991) so that it now provides as follows:-
Section 17
(1) When an order is made by a court in favour of the plaintiff or applicant in any proceedings (other than an action specified in subsection (2) and (3) of this section) and the court is not the lowest court having jurisdiction to make an order granting the relief the subject of the order, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the said lowest court.
(2) In any action commenced and determined in the High Court, being an action where the amount of damages recovered by the plaintiff exceeds IR£25,000 but does not exceed IR£30,000, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the proceedings had been commenced and determined in the Circuit Court, unless the judge hearing the action grants a special certificate, for reasons stated in the order, that, in the opinion of such judge, it was reasonable in the interests of justice generally, owing to the exceptional nature of the proceedings or any question of law contained therein, that the proceedings should have been commenced and determined in the High Court.
(3) In any action commenced and determined in the High Court, being an action where the amount of the damages recovered by the plaintiff exceeds IR£5,000 but does not exceed IR£15,000, the plaintiff shall not be entitled to recover more costs than whichever of the following amounts is the lesser, that is to say, the amount of such damages or the amount of costs which he would have been entitled to recover if the action had been commenced and determined in the Circuit Court.
39. It is clear that s. 17(1) only applies if the plaintiff’s claim does not, because of the amount of his award, fall to be considered under either subs. (2) or (3) of that section. In the present case the award which ought properly have been made by the jury was €17,500, the same having an Irish Pound equivalent of £13,772. That being so it is unnecessary to consider the effect of s. 17(1) on the award of damages erroneously made by the jury. The plaintiff’s award of damages falls within the parameters advised in s. 17(3). Thus his High Court costs must be determined in the manner therein specified. He is entitled to the lesser of the following sums, namely:-
(i) €17,5000 that being the amount of his award of damages, or
(ii) such sum as may be agreed, or taxed in default of agreement, on the basis that the claim was commenced and pursued in the Circuit Court over a two day period.
Conclusion
40. For the reasons advanced earlier in this judgment, I am satisfied that the award of the general damages made by the jury in this case was not just or proportianate having regard to the evidence concerning the plaintiff’s injuries and that it should be set aside in favour of an award of damages in the sum of €35,000. I am also satisfied that the jury erred in its approach to the issue of contributory negligence such that this court should apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961,with the effect that liability should be apportioned equally between the parties. In such circumstances the plaintiff is entitled to an award of €17,500: an award which is governed by the provisions of s. 17(3) of the Courts Act 1981 (as substituted by s.14 of the Courts Act 1991). Accordingly I would allow the appeal and propose an award of general damages in favour of the plaintiff in the sum of €17,500, with costs to follow in the lesser of the two amounts specified in that section upon the basis of a two day hearing as decided by the trial judge and from which decision no appeal was pursued.
Kenneth Grace v Paul Hendrick and Edmund Garvey
2019 3700 P
High Court [Approved]
10 May 2021
unreported
[2021] IEHC 320
Ms. Justice Niamh Hyland
May 10, 2021
JUDGMENT
Background
1. On 10 May 2019 Kenneth Grace (“the plaintiff”) brought a claim seeking damages inter alia for personal injuries, psychological injuries and mental distress sustained by him by reason of the alleged wilful assault, battery and trespass to the person perpetrated on him by Paul Hendrick (“the first named defendant”), and by the negligence and breach of duty (including statutory duty) of Edmund Garvey (“the second named defendant”). The first named defendant is a member of the Congregation of Christian Brothers and the second named defendant is the Province leader of the Congregation of Christian Brothers, European Province. It is alleged that the plaintiff was the victim of several incidents of sexual assault perpetrated on him by the first named defendant when he was a minor, over a period of years from 1979-1984, both at the school the plaintiff attended and where the first defendant taught, being CBS Westland Row, and at other properties under the control of the Congregation of Christian Brothers. Motion for disclosure of the names and addresses of Christian Brothers
2. Following the issuing of proceedings, the plaintiff’s solicitors requested the solicitors for the second named defendant to identify a legal nominee for the Congregation of Christian Brothers and/or to furnish the names and addresses of members of the Congregation who are currently alive and were members at the time the alleged assaults occurred. The second named defendant declined to take either of those steps. Accordingly, on 16 August 2019, a Notice of Motion was issued seeking the following reliefs:
“1. An order pursuant to the inherent jurisdiction of the court directing that the second named respondent disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland during the period from 1 August 1979 to 31 December 1984, and who are currently members of the Congregation of Christian Brothers.
2. Further or in the alternative, an order pursuant to O. 15, r.9 of the Rules of the Superior Courts or pursuant to the inherent jurisdiction of the court authorising or directing the respondent to defend the applicant’s intended proceedings on behalf of all living members of the Congregation of Christian Brothers who were members of the order during the period from 1 August 1979 to 31 December 1984”.
3. The grounding affidavit of the plaintiff was sworn on 21 June 2019 by Phillip Treacy, solicitor for the plaintiff. It avers to the fact he first requested the Congregation to nominate a person to defend proceedings on its behalf, and then requested the Congregation to furnish the names and addresses of living persons who were members of the Congregation during 1 August 1979 to 31 December 1984. Correspondence from the plaintiff’s solicitors to the second named defendant seeking information regarding members of the Congregation was exhibited to Mr Treacy’s affidavit. None of the replies were exhibited. An affidavit was filed on behalf of the second named defendant by Ms. Emma Leahy, solicitor exhibiting those replies, being three short letters of 20 February 2019, 16 May 2019 and 6 June 2019.
4. In the letter of 20 February 2019, it is stated as follows:
“ Edmund Garvey has confirmed that he has not authorised the use of his name in the above proceedings as a nominee on behalf of the Christian Brothers. Please note that it is a matter for the Plaintiff to take proceedings against the appropriate Defendant or Defendants who is/are identified by the Plaintiff as being responsible for the wrongs alleged by the Plaintiff against any such Defendant or Defendants ”.
The letter of 16 May was in similar terms. The letter of 6 June simply referred back to the letter of 20 February 2019 but included the following statement: “ For the avoidance of doubt, we confirm that we are instructed by Edmund Garvey in his personal capacity only ”. No explicit refusal to provide the names and addresses of the Christian Brothers is contained in the correspondence but equally it is clear that no names and addresses will be forthcoming. It is in those circumstances that the motion was brought.
Hearing of the motion
5. The motion came on for hearing on 1 February 2021. The first named defendant, who is separately represented, did not appear on the motion as no relief was sought against him. Although one of the reliefs sought was based exclusively on the inherent jurisdiction of the court i.e. the direction that the names and addresses of members of the Congregation of Christian Brothers in Ireland be disclosed, no cases were opened in respect of the inherent jurisdiction of the court and the parameters of that jurisdiction. In the circumstances, I directed that the parties submit written submissions identifying relevant case law and the application of same. Both parties submitted very helpful written submissions and I have taken same into account in coming to my decision.
Summary of Issues raised
6. This application raises a deceptively simple issue: can a court direct a member of a religious organisation, sued as being vicariously liable as a member of a congregation for sexual abuse allegedly perpetrated by another member, to disclose the identities of other members of the congregation during the time of the alleged sexual abuse so that they may be joined in the proceedings?
7. It also raises the less taxing question as to whether, by way of O. 15, r. 9 of the RSC, a court can designate a defendant as a representative defendant where there is no agreement to such designation.
8. The core facts relevant to the determination of this application seem to me to be the following:
• there is no consent by the second named defendant to him acting in a representative capacity on behalf of the other members of the Congregation at the relevant time;
• the second named defendant has refused to provide the plaintiff with the names of the Brothers who were part of the Congregation at the relevant time on the basis that it is a matter for the plaintiff to identify the persons responsible for the wrongs alleged;
• the plaintiff’s solicitor has averred on affidavit that the plaintiff is being frustrated in his endeavour to issue proceedings by the second named defendant’s refusal to furnish the information sought. No affidavit was sworn by or on behalf of the second defendant controverting that averment. Counsel for the plaintiff has submitted that he has no other way of obtaining the names of the Congregation at the relevant time. No submissions to the contrary were made by the second named defendant, who was represented by solicitor and counsel at the hearing of the motion. I will therefore proceed on the basis that the plaintiff is not able to obtain the names of the Congregation members at the relevant time absent the Orders sought.
Order 15 Rule 9
9. The plaintiff seeks an order pursuant to O.15, r.9 of the RSC authorising or directing the second named defendant to defend the plaintiff’s intended proceedings on behalf of all living members of the Congregation of Christian Brothers members during the period 1 August 1979 to 31 December 1984.
10. Order 15 r. 9 provides as follows:
Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested .
11. The plaintiff asserts that this rule provides the legal basis for an order either authorising or directing the second named defendant to defend the proceedings on behalf of the Congregation at the relevant time. Because the second named defendant has made it perfectly clear in the correspondence exhibited to the affidavit of Ms. Leahy summarised above that he is not defending the proceedings in a representative capacity and is not willing to do so, it seems to me the application is in truth one for a direction rather than an authorisation.
12. Counsel for the defendant submits that O.15 r. 9 may only be invoked where a plaintiff or defendant is willing to act in a representative capacity and relies upon case law in that respect. Counsel for the plaintiff submits that, were the defendant’s interpretation of O. 15, r.9 to be adopted, it would make the wording of the rule “meaningless” and relies in that respect on the words “ may be authorised by the court to defend ”.
13. It seems clear to me that the rule in question is permissive rather than mandatory. In other words, it makes clear that it is permissible, where a number of persons are suing or being sued, for one or more of those persons to sue or defend the proceedings on behalf of all persons having the same interest in the cause. The rule is significant in the absence of any other general provision in the RSC or in statute authorising parties to act on behalf of other parties. The Law Reform Consultation Paper on Multi-Party Litigation (LRC CP 25-2003) described O. 15 r.9 as facilitating “ a rudimentary form of class action known as a “representative action” “ [paragraph 1-01].
14. However, what the plaintiff is contending for is quite different. He argues that it permits the court to direct a defendant to defend the proceedings on behalf of a group of persons where the defendant does not wish to act in a representative capacity. The case law opened to me is against this proposition, as is the wording of O. 15 r.9.
15. Considering the wording of O.15, r. 9 first, the word “authorisation” connotes permission or clearance being given by person A for a course of action that is desired by person B. Order 15, r.9 does not provide for the court to “direct” the defence of proceedings on behalf of all interested persons. It only provides that a court may authorise same. Prima facie, the rule does not give the court a power to direct a defendant to act on behalf of others.
16. Case law on this point supports that approach. In Firth Finance and General Ltd. v. McNarry[1987] N.I. 125 was a Northern Irish case that considered whether a person could be appointed as a representative defendant against their will. O. 15 r. 16(4) of the Rules of the Supreme Court provided that in an action against the estate of a deceased person, the plaintiff shall apply for an order appointing a person to represent the deceased’s estate. The Court found that there was nothing in O. 15 r. 16(4) to suggest that a person could be appointed as a representative defendant against his/her will. That case involved an allegation that the deceased had misappropriated funds from his employer, the plaintiff, who then wished to take a claim against the deceased’s estate. The deceased’s widow did not wish to engage in or take any action in her husband’s estate. The plaintiff made an application to appoint the deceased’s wife as a representative defendant without her consent under O. 15 r. 16(4), and this application was granted.
17. On appeal it was argued that the Master had no power to grant such an application and that only a willing person could become a representative defendant. It was further argued that such an interpretation of the rule would enable the deceased’s widow to effectively block a legitimate claim. Counsel cited case law which he said identified a long-standing rule that only a willing person may be appointed as a representative defendant, citing Pratt v. London Passenger Transport Board[1937] 1 All ER 473 and In re Curtis & Betts[1897] W.N. 127.
18. The Court observed there was nothing in the wording of the Rule that suggested that a person could be appointed under it as a representative defendant and that such an order would expose a defendant to the risk of having to incur costs. It concluded such an approach would be objectionable and could not be ordered.
19. I find that, despite the rule at issue in Firth Finance being quite different to O.15, r.9, the rationale expressed by the court in that case is one that applies equally in the circumstances of this case.
20. Similarly, in my judgment in Merriman v. Burke & Ors[2020] IEHC 118, I refused to treat a defendant as a representative defendant in proceedings concerning alleged sexual abuse in circumstances where the first defendant in those proceedings consistently denied he was a representative of the Christian Brothers and refused to identify a nominated representative. In that decision, I held that (a) given the lack of agreement on the part of the first defendant and the Congregation and (b) the failure to identify the members of the Congregation who the first defendant allegedly represented, the first defendant had not been sued in an agreed representative capacity.
21. In summary then, O. 15 r. 9 cannot be interpreted to mean that a court may order an unwilling defendant to act in a representative capacity on behalf of other unnamed and unidentified defendants.
22. The plaintiff also seeks an order directing representation by the second named defendant pursuant to the inherent jurisdiction of the court. This relief was not pressed at the hearing and no authorities were opened to support it. It is well established that where the jurisdiction of the courts is expressly and completely delineated by statute law it must as a general rule, exclude the exercise by the courts of some other or more extensive jurisdiction of an implied or inherent nature (see page 27 of Murray J. in G Mc G v. DW (no. 2) (Joinder of Attorney General)[2000] 4 I.R. 1). Here, it appears to me that the jurisdiction of the courts in respect of representative actions has been delineated by the relevant rule of court i.e. O. 15 r. 9. Accordingly, it is not appropriate that the inherent jurisdiction of the court should be relied upon.
23. There is a further potential difficulty for the plaintiff in seeking this Order, in that he cannot identify to the court the list of potential defendants who should, on his case, be mandatorily represented by the second named defendant. In Madigan v. Attorney General[1986] I.L.R.M. 136, one of the plaintiffs sought to challenge the constitutionality of the residential property tax on her own behalf and on behalf of all assessable persons within the meaning of s. 95 of the Finance Act 1983. O’Hanlon J. refused the application for a representative action because no evidence had been adduced to suggest that any other persons had authorised the said plaintiff to sue on their behalf and the court had no knowledge of the number of persons who wished to challenge the statute. A somewhat more flexible approach was taken in Greene v. Minister for Agriculture[1990] 2 I.R. 17, where it was held to be sufficient by way of identification of parties represented by a small number of plaintiffs that a list of 1,392 farmers had been provided to the defendants, although those farmers had not signed the necessary documentation. On the facts, Murphy J. concluded that the representative plaintiffs were authorised to act on behalf of the 1,392 farmers. However, in that case the names of those farmers were available, unlike the present situation.
24. Accordingly, were I to make an order in the terms sought by the plaintiff in relation to representation by the second named defendant, I would still have to engage with the issue of the disclosure of the names and addresses of the Congregation at the time of the alleged abuse as any such order would require an identification of the parties to be represented by the second named defendant.
25. For the foregoing reasons, I therefore refuse the relief sought at paragraph 2 of the Notice of Motion.
Disclosure pursuant to inherent jurisdiction of Court
Arguments of the parties
26. The plaintiff focused on the fact that there were no rules of court or legislative provisions in place in respect of the provision of names of potential parties and that therefore no preclusion on the use of inherent jurisdiction of the sort discussed by McG v. DW, Mavior v. Zerko Limited[2013] 3 I.R. 268 and In the matter of FD[2015] 1 I.R. 741, arose in this case.
27. He identified that by way of analogy, the court could look to the types of discovery orders made under the jurisdiction identified in Norwich Pharmacal v. Customs and Excise Commissioners[1974] A.C. 133, followed in Ireland by Megaleasing UK Limited v. Barrett[1993] IL.R.M. 496. He relied upon the decision in Holloway v. Belenos Publications Ltd (no. 2)[1988] I.R. 494, whereby Barron J. observed that the power to order discovery was part of the inherent jurisdiction of the court. He submitted that the court had an inherent jurisdiction recognised by the Constitution to control its own procedures and to administer justice appropriately and that it should exercise its inherent jurisdiction in the circumstances of this case to direct production of the names and addresses of the Congregation at the relevant time.
28. The second named defendant made two key points, the first being that the jurisprudence on inherent jurisdiction indicates that it is a power which should only be used sparingly, and on extreme, rare, and exceptional occasions. He identified that no such exceptional occasion has been established by the plaintiff here such as to justify the invocation of the court’s inherent jurisdiction.
29. Second, in response to the reference by the plaintiff to the Norwich Pharmacal jurisdiction, the second named defendant stressed that the courts will only direct the disclosure of the identity of alleged wrongdoers if the plaintiff can demonstrate a very clear and unambiguous establishment of wrongdoing, relying on Megaleasing, as well as subsequent decisions, including O’Brien v. Red Flag Consulting[2015] IEHC 867, and Parcel Connect v. Twitter International Company[2020] IEHC 279. The second named defendant stressed that here, only a plenary summons has issued, the plaintiff has not made out a prima facie case and has not established the alleged wrongdoing to a high degree of certainty as required by the case law. Because the plaintiff is seeking an order that has all the characteristics of a Norwich Pharmacal order, he should not be entitled to obtain a similar order by the “back door” of inherent jurisdiction where the requisite threshold has not been met. Similarly, the second named defendant cautioned against the invocation of a “vague” inherent jurisdiction.
The nature of inherent jurisdiction
30. Article 34.3.1 of the Constitution provides as follows:
3.1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal .
31. There is little discussion of Article 34.3.1 as the source of the inherent jurisdiction of the courts, although the decision in FD does refer to it. Other decisions make it clear that the inherent jurisdiction of the courts, particularly as relied upon to provide for discovery, significantly pre-dates the Constitution.
32. The source, nature and limitations of this jurisdiction has been variously explained as follows:
• “ The court has an inherent jurisdiction to stay proceedings … This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice … ” (Costello J. in Barry v. Buckley[1981] I.R. 306 page 308);
• “ The courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so ” (Hamilton C.J. in Primor plc v. Stokes Kennedy Crowley[1996] 2 I.R. 459 p. 475);
• “ It is part of the court’s function to vindicate and defend the rights guaranteed by Article 40, section 3. If the courts are under an obligation to defend and vindicate the personal rights of the citizen, it inevitably follows that the courts have the jurisdiction to do all things necessary to vindicate such rights .” (Hamilton C.J. in DG v. Eastern Health Board[1997] 3 I.R. 511, page 522);
• That a court possesses inherent jurisdiction implicitly “ whether owing to the very nature of its judicial function or its constitutional role in the administration of justice ” (Murray J. in G Mc G page 26);
• That there is “ a jurisdiction inherent in the court which enables it to exercise control over process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process. It is a residual source of power which the court may draw upon as necessary wherever it is just or equitable to do so ”. (Kelly J. in PJ Carroll and Company v. Minister for Health (no. 2)[2005] 3 I.R. 457 page 466);
• “ If an obvious problem of fair procedures or efficient case management arises in proceedings, the court, if there is no rule in existence precisely covering the situation, has an inherent power to fashion its own procedure, and even if there was a rule applicable the court is not necessarily hidebound by it” (Geoghegan J. in Dome Telecom Ltd v. Eircom Ltd[2008] 2 I.R. 726 paragraph 12);
• “ The court’s inherent jurisdiction stems from the nature of the court’s judicial function or the court’s constitutional role in the administration of justice ” (Clarke J. (following Murray J. in McG) in Mavior);
• “ It has been established that there is an inherent jurisdiction to set aside a final order in exceptional circumstances such as on the basis of bias or fraud or where there has been a breach of constitutional rights…” (Dunne J. in Nolan v. Carrick[2013] IEHC 523);
• “ The inherent jurisdiction of the court is not to be confused with a right to change the law at whim .” (Cross J. in Re Depuy International Ltd[2017] IEHC 101, paragraph 30);
• “… it is exercised only where necessary and … it has the overriding objective of avoiding injustice ” (Barrett J. in Bank of Scotland v. McDermott[2017] IEHC 77 page 5).
33. Given that this application seeks an order directing disclosure of information, the cases on the relationship between discovery and the inherent jurisdiction of the court are particularly apposite.
34. In Holloway, Barron J. observed that:
“ A rule relating to orders for discovery is a rule regulating the exercise of the inherent jurisdiction of the court.… The power to order discovery is part of the inherent jurisdiction of the court and the rule is one giving altered effect to that inherent jurisdiction ”.
35. In Nolan v. Dildar[2020] IEHC 614, page 15, Barniville J. noted that:
“ The court has an inherent jurisdiction to direct further and better discovery where the discovery made on foot of an order or agreement for discovery is inadequate or deficient. I accept the submission advanced by the plaintiffs that the court’s inherent jurisdiction in that regard is extensive and can include, in very exceptional cases, an order directing cross-examination of a deponent on an affidavit of discovery (Duncan v. Governor of Portlaoise Prison[1997] 1 IR 558 )” .
36. The case law above demonstrates that inherent jurisdiction may be used as the legal basis for a wide variety of orders, including case management, directing further and better discovery, directing discovery of the identity of third parties for the purposes of suing them, staying proceedings, setting aside a final order, granting bail and detaining a young person not charged or convicted of any crime in a penal institution and/or child care institution.
37. At this point, I should address the second named defendant’s argument that the inherent jurisdiction of the court should only be used on “extreme and rare occasions”. Those words come from the decision of Hamilton C.J. in DG v. Eastern Health Board where he stated at p. 524:
“The jurisdiction, which I have held, is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare occasions, when the Court is satisfied that it is required, for a short period in the interests of the welfare of the child and there is, at the time, no other suitable facility.”
38. Carefully read, it seems to me that Hamilton C.J. was commenting, not on the use of inherent jurisdiction in general but rather on the use of it to justify detention of a child not charged or convicted with any criminal offence in a penal institution. Similarly, read in context, the comment of MacMenamin J. in HSE v. AM[2019] 2 I.R. 115 to the effect that “ Applications invoking an inherent jurisdiction may, therefore, be made, but only in exceptional cases … As was made entirely clear by the judgment in D.G. v. Eastern Health Board[1997] 3 I.R. 511, inherent jurisdiction must not be used as a first port of call, when, by legislation, the Oireachtas has spoken on the matter ” (paragraph 90), appears to me to have been made in the context of cases involving fundamental principles of constitutional stature i.e. as demonstrated by his observations later in the case: “… where rights to life and liberty under Article 40.3 of the Constitution did arise, and where this court has held that there is an inherent jurisdiction, albeit one to be used sparingly, and only as a “backstop” when statutes do not govern the situation ” (paragraph 92).
39. The overall tenor of the case law is, in my view, not that the inherent jurisdiction of the courts should only be used in extreme/rare and exceptional cases but rather that it should be used sparingly, where there is no other alternative and where the issue is not already addressed by legislation and/or rules of court (see, inter alia, FD).
Disclosure of the names of third parties
40. The nature of the order sought is naturally a critical factor to be considered when parties invoke the inherent jurisdiction of the courts. Happily, in this case, I do not have to decide as a matter of principle whether courts have an inherent jurisdiction to order a defendant to disclose names of suspected wrongdoers for the purpose of issuing proceedings against them, as it has long been accepted that courts have the power to do so in the context of Norwich Pharmacal orders and also in other contexts. This is clear from the following passage from the judgment of Lord Reid in Norwich Pharmacal:
“Discovery as a remedy in equity has a very long history. The chief occasion for its being ordered was to assist a party in an existing litigation. But this was extended at an early date to assist a person who contemplated litigation against the person from whom discovery was sought, if for various reasons it was just and necessary that he should have discovery at that stage. Such discovery might disclose the identity of others who might be joined as defendants with the person from whom discovery was sought. Indeed, in some cases it would seem that the main object in seeking discovery was to find the identity of possible other defendants ”. (p. 173)
41. That passage makes clear that the original power of the courts to order discovery derived from equity. The cases discussed in the judgments of the five judges of the House of Lords in Norwich Pharmacal suggest that this power to order discovery may have existed for more than two centuries. Finlay C.J. in Megaleasing observed that the jurisdiction had been traced back to Orr v. Diaper(1876) 4 Ch. D. 92. McCarthy J. in the same case traced the origins of the power back to the Supreme Court of Judicature (Ireland) Act 1877.
42. As interpreted in the Supreme Court decision of Megaleasing, Norwich Pharmacal orders may be made where the plaintiff seeks discovery exclusively for the purposes of discovering the identity of wrongdoers and has no independent cause of action against the defendant, although it is a condition of such discovery that (a) the defendant must in some way be mixed up with the wrongdoing and (b) a very clear proof of a wrongdoing exists. Neither in Megaleasing, nor in the discussion of that case by the High Court and Supreme Court in Doyle v. Commissioner of An Garda Siochana[1999] 1 I.R. 249, is the question as to whether clear proof of the existence of wrongdoing is required if the application is not made in the context of proceedings for sole discovery.
43. I agree with the second defendant’s submission that the plaintiff does not come under the existing Norwich Pharmacal jurisdiction as applied in Ireland. No clear evidence of wrongdoing or even prima facie evidence of wrongdoing has been established as would be necessary to obtain a traditional Norwich Pharmacal type order. The pleadings have not gone beyond the issuing of a plenary summons. No wrongdoing can be assumed on the part of either defendant at this point in the proceedings. The burden of proof rests on the plaintiff, to be discharged on the balance of probabilities.
44. However, there is another reason that this application is not a typical Norwich Pharmacal type application. It is not an action for sole discovery. The defendants have not been joined simply for the purposes of obtaining discovery. The first named defendant is accused of very serious torts, namely wilful assault, battery and trespass to the person. The second named defendant is sued for negligence and breach of duty, presumably on the basis of the doctrine of vicarious liability, although that is not pleaded in the endorsement of claim.
45. The defendant says that that is the end of the matter since the plaintiff cannot circumvent the requirement to establish a threshold of wrongdoing by invoking the inherent jurisdiction of the court. That approach seems to assume that even where the action is not for “ sole discovery ” as described by Finlay P. in Megaleasing, the plaintiff must establish prima facie wrongdoing. The second named defendant has cited the decision of MacEochaidh J. in O’Brien v. Red Flag Consulting[2015] IEHC 867 in support of that proposition. I discuss same below.
46. It seems to me that, subject to the Red Flag line of authority discussed below, in principle the flexibility of the inherent jurisdiction of the court and the wide range of situations in which it can be deployed (as discussed above) would permit an order for disclosure of the identity of potential parties even where the traditional Norwich Pharmacal requirement of establishment of prima facie wrongdoing is not met.
47. Moreover, that argument ignores the case law cited in Norwich Pharmacal which lends support to the notion that discovery was traditionally available to a plaintiff against a defendant to discover the names of other potential wrongdoers, even without proof of wrongdoing. The issue that the House of Lords struggled with in Norwich Pharmacal was whether such a remedy was available where the plaintiff had no cause of action against the defendant. But the question as to whether discovery of information in respect of potential wrongdoers was available where the plaintiff was proceeding against the defendant did not appear to trouble it.
48. In the five judgments delivered by the House of Lords in Norwich Pharmacal, a wide range of case law as to the entitlement of a court to order discovery of the identity of suspected wrongdoers was discussed. From that, it is possible to deduce the following principles: that such a jurisdiction exists, is of considerable antiquity, likely derives from equitable principles and does not appear to be necessarily conditional on prima facie proof of wrongdoing. For example, in the submissions made to the House of Lords in the Norwich Pharmacal case, recorded in the law report, counsel referred to US law, relying inter alia on the decision of Judge Learned Hand in Pressed Steel Car Company v. Union Pacific Railway Co(1917) 240 F 135 where he held at p.136:
“ the jurisdiction of this court to entertain a bill in equity for discovery… will still be exercised even in aid of an action at law, if the plaintiff cannot without it find out whom he should sue … the jurisdiction will not be exercised, if the legal remedies are sufficient; like any other equitable remedy, it is exceptional, and the plaintiff must bring himself within the exception ”.
Discussing the purposes of a bill in equity for discovery and noting that in most cases the law has rendered it obsolete, Judge Learned Hand observed that “ if … the plaintiff cannot adequately present his case by subpoena and especially if he needs a preliminary inspection of documents, then there is every reason to assert so ancient a source of equitable jurisdiction ”.
49. In the textbook, Bray on Discovery (1885), referred to by a number of the Law Lords in Norwich Pharmacal, the author identifies that a party might file a bill of discovery before he commenced his action, in order inter alia to ascertain the proper person against whom to bring the action (Moodalay v. Morton(1785) 1 Bro C.C. 469) (in that case, against a company and a secretary to ascertain whether the persons who had done the act complained of were acting by the company’s authority) (see page 61 of Book 3, Chapter X).
50. Lord Kilbrandon in Norwich Pharmacal quotes the dicta in the South African case, In Colonial Government v. Tatham(1902) 23 Natal L.R. 153, where Bale C.J. and Finnemore J. observe:
“ Before granting such an application we must be satisfied that the applicant believes that he has a bona fide claim against some person or persons whose names he seeks to discover, and whose name can be supplied by the respondent, and that he has no other appropriate remedy ”.
and Beaumont A.J. in the same judgment says, at p. 158:
“ The principle which underlies the jurisdiction which the law gives to courts of equity in cases of this nature, is that where discovery is absolutely necessary in order to enable a party to proceed with a bona fide claim, it is the duty of the court to assist with the administration of justice by granting an order for discovery, unless some well-founded objection exists against the exercise of such jurisdiction .”
51. The requirement for prima facie wrongdoing, which does not feature prominently in the decision of the House of Lords in Norwich Parmacal but is writ large in Megaleasing (which was of course only concerned with sole discovery) appears to largely derive, in my view, from the fact that the action is one for sole discovery i.e. there is no independent claim of wrongdoing against the defendant. Therefore, before putting a defendant against whom no claim is made to the trouble of making discovery, a court must be satisfied inter alia that there is clear evidence of wrongdoing. (That is also why a court will not make an order for sole discovery against a defendant unless the defendant is in some way “mixed up in the wrongdoing”).
52. However, the situation is quite different where the defendant is one against whom substantive wrongdoing is alleged in the proceedings i.e. a concurrent wrongdoer, and who has not been joined simply to provide information in relation to the identity of wrongdoers. In such a case, the defendant is already enmeshed in the legal process and is likely to face discovery requests later in the proceedings. In such a situation, the rationale for the necessity for prima facie evidence of wrongdoing to justify an order for discovery of the identity of wrongdoers is less obvious. That is not to say that, in an appropriate case, a court might refuse to order disclosure of the identity of wrongdoers by a concurrent wrongdoer without prima facie evidence of wrongdoing. But in my view, it is inappropriate to treat the establishment of prima facie wrongdoing as an absolute requirement, the absence of which must operate to bar any applicant from obtaining an order, even where the interests of justice require it.
53. I should add that the necessity for prima facie wrongdoing is not without its own difficulties and there are occasions where it might not be appropriate to require it. In this respect, I note the observations of Laffoy J. in Doyle v. Commissioner of An Garda Siochana where she observed, in the context of an application for Norwich Pharmacal relief as follows: “For the Court to make a finding of very clear proof of wrongdoing by an identified alleged wrongdoer in proceedings in which the identified alleged wrongdoer is not a party would constitute a breach of one of the fundamental rules of natural justice – audi alteram partem” (p. 16).
54.</emphasis> Finally, I am aware that there is recent U.K. authority where the requirement for prima facie evidence of wrongdoing has been dispensed with when ordering a defendant to provide the names of alleged wrongdoers. However, given that same was not identified by either party, I have not considered that line of authority in this judgment.
The decisions in O’Brien v. Red Flag Consulting Ltd.
55. I turn now to consider whether the decisions of the High Court and the Court of Appeal in O’Brien v. Red Flag Consulting Ltd. mean that, despite my observations above, I am not entitled to make an order for discovery of the identity of wrongdoers absent evidence of prima facie wrongdoing, even where the defendant is itself accused of wrongdoing.
56. The first decision is an ex tempore decision of MacEochaidh J. in O’Brien v. Red Flag Consulting & Ors.[2015] IEHC 867. The plaintiff had sought an order requiring the defendants or the appropriate defendant to reveal the name of one of their clients. The plaintiff said he had become aware of a campaign against him and that he instigated an investigation to discover who might be behind the campaign. He received a memory stick from an anonymous person and launched proceedings against the defendants. Having referred to the decision in Norwich Pharmacal and more recent UK case law (Rugby Football Union v. Consolidated Information Services[2012] 1 WLR 3333), MacEochaidh J. observed as follows:
“ It is also clear from an examination of Irish jurisprudence that whereas historically such orders were made against an innocently involved defendant, it is clear that disclosure orders can be made against actual wrongdoers and whether one calls those Norwich Pharmacal orders or disclosure orders or discovery orders, such orders, are available to the High Court and have been made in the past ” (paragraph 13).
57. In response to an argument by the defendant that the orders should not be made because it would breach their duty of confidentiality to their client, the plaintiff argued that the right of the defendants to protect the confidentiality of their clients must be balanced against the degree to which wrongdoing has been established by the plaintiff. Having reviewed inter alia the Irish authorities, MacEochaidh J. observed that “ one feature stands out, and that is that in all of them … wrongdoing by unidentified persons, to a very high degree of probability, had been made out by the plaintiffs … It seems to me the law does require that a plaintiff establishes to a high degree of certainty that an unknown person has engaged in unlawful activity before disclosure orders will be made ” (paragraph 22).
58. He concluded that wrongdoing had not been made out to the degree necessary to justify the making of the orders sought and that, given the confidentiality concerns, there would have to be a very strong case indeed about the alleged wrongdoing to the point of almost certainty before a court could so order. (It should be observed that in this case, no confidentiality concerns arise for the reasons I discuss later).
59. That decision was not appealed. In 2016, an application for what might be described as “ordinary” discovery was made in the same proceedings, and the various categories sought required documents that would reveal the identity of the unnamed client i.e. the same material that had been refused in the judgment described above. The defendants agreed to make voluntary discovery save for anything that would reveal the identity of their client. Reference was made to the previous decision of MacEochaidh J. on 21 December 2015. In O’Brien v. Red Flag Consulting[2016] IEHC 719MacEochaidh J. – who was again adjudicating upon the application – observed as follows:
“ The fact that disclosure has been refused on a Norwich Pharmacal application could not prevent a party from seeking discovery in the ordinary way … Disclosure of the defendants’ client’s name to enable the plaintiff to sue him or her has been refused. That application cannot be repeated in this discovery application but that is not to say the plaintiff is prohibited from seeking the name of the defendant’s client on the basis that the information is relevant in these proceedings – as opposed to needed for intended proceedings ” (paragraph 7).
60. He concluded that knowing the defendants’ client’s identity would not advance the plaintiff’s plea and was therefore not relevant and refused discovery.
61. That decision was appealed to the Court of Appeal and judgment was delivered by Ryan P. on 13 October 2017 in O’Brien v. Red Flag Consulting[2017] IECA 258. The President agreed that material identifying the defendants’ client was not relevant. However, the plaintiff also sought discovery on the basis that there was an entitlement to same under the Norwich Pharmacal jurisdiction. The defendant noted the plaintiff had not appealed the original 2015 decision refusing disclosure of the identity of the client and could not re-visit a claim previously made and rejected by the court.
62. At paragraph 37, the President upheld the conclusions of the High Court, holding inter alia there was no new basis advanced by the plaintiff to produce a different result from the previous unsuccessful application, there was no case made out on the facts that entitled the plaintiff to the order sought, and this was a case of res judicata. At paragraph 38, the President observed that there was substance to the submission by the defendants that the previous decision was binding and that the application, insofar as it relied upon Lord Reid’s identification of an appropriate circumstance for discovery, represented a return to previously trodden territory. At paragraph 42, he concluded that the trial judge was correct to refuse the ground of application based on the Norwich Pharmacal jurisdiction, and that he “ ought indeed to have held that the matter was res judicata by reason of the previous decision of the court. But on the footing that the judge employed in considering the matter, it was also correct to rule out relief because the factual ground had advanced no further ”.
63. Finally, at paragraph 80, he notes that counsel for the plaintiff accepts that he put up the case in a quasi-Norwich Pharmacal application to MacEochaidh J. in the High Court in the previous application but that the issue was not the subject of res judicata or issue estoppel because the test the court applied on that application was different and the issue was not precisely the same, and that MacEochaidh J. in the 2016 decision was wrong to say that the Norwich Pharmacal application could not be renewed. The President rejected those arguments.
64. The above summary of the findings of the President is necessary to contextualise the observations the President made on the Norwich Pharmacal jurisdiction, summarised below, and to explain why I have reached the conclusion that his observations on that jurisdiction were obiter such that I am not bound by them in reaching my decision in this matter.
65. Turning now to those observations, the plaintiff had put forward an argument that the Norwich Pharmacal jurisdiction differs, depending on whether one is considering an innocent party (albeit one who is mixed up with the wrongdoing) or an actual defendant. In response to this argument, the President observed as follows:
“ In my judgment, the appellant plaintiff is not correct as a matter of law in proposing two separate Norwich Pharmacal jurisdictions, one for an innocent party and one for an actual defendant . There is only one, which has been exercised in cases (a) in which the requested party is a defendant or alleged wrongdoer where the applicant achieves a relatively high standard of proof on a provisional basis, that is, a strong case and (b) where the party in possession of the information is involved in the wrongful conduct in significant degree but is itself innocent of liability to the applicant seeking the disclosure, again provided the applicant makes out a strong prima facie case. The standards of evidence or proof are not different; it would make no sense to hold otherwise ” (p.28, para. 41 (x)).
66. That statement suggests that a plaintiff seeking the identity of an alleged concurrent wrongdoer must identify a prima facie case, just as it would be required to do if the action was one for sole discovery. However, I note that in a later passage the President focuses on the interests of justice rather than prescriptive requirements: at paragraph 44, he says “ Mr. O’Brien has gone no further than to make the allegations which if they were founded in fact at a sufficient level could justify the court in making the order he seeks if it was satisfied that it was in the interests of justice to do so. I should say that this last point is not to be overlooked: the fact that the jurisdiction exists for the court to make an order does not mean that it will do so; the court must be satisfied that the application is in all the circumstances a deserving one ”.
67. Despite these observations, for the reasons set out above, I have concluded there is no binding authority from the Court of Appeal to the effect that a plaintiff seeking discovery of the names of third parties from a concurrent wrongdoer is, in every case, required to demonstrate the existence of a prima facie case of wrongdoing.
68. Insofar as the 2015 decision of MacEochaidh J. is concerned, the position is different. He squarely concludes that prime facie evidence of wrongdoing is required even where the defendant is a concurrent wrongdoer, as opposed to a person mixed up in the wrongdoing in an application for sole discovery. However, applying the doctrine of stare decisis, as identified in Irish Trust Bank Ltd. v. Central Bank of Ireland[1976] ILRM 50 and Re Worldport Ireland Ltd.[2005] IEHC 189, I have concluded that I should depart from his decision and come to a different view on this question as the decision in O’Brien was not based upon a review of significant relevant authority. I am conscious that a High Court judge should be slow to depart from another decision of the High Court, bearing in mind the importance of consistency. However, for the reasons I explain below, I find it appropriate to do so in this case.
69. The decision in O’Brien was a short, ex tempore decision. Presumably because of the necessity of delivering the decision on an urgent basis, there was no detailed consideration by reference to decided case law of this discrete and novel question i.e. the necessity for proof of prima facie wrongdoing where the defendant is a concurrent wrongdoer. The majority of authorities relied upon by MacEochaidh J. were concerned with applications for sole discovery – Norwich Pharmacal, Megaleasing, and EMI Records (Ireland) Ltd. v. Eircom Ltd[2005] I.R. 148. The only one that concerned concurrent wrongdoers, Ryanair v. Unister[2011] IEHC 167 did not discuss potential differences between innocent parties mixed up in wrongdoing and concurrent wrongdoers at all. Indeed, the Supreme Court decision, Ryanair v. Unister[2013] I.E.S.C. 14, was largely concerned with jurisdictional issues. However, as I identify above, there is a line of much older U.K., U.S. and South African case law that suggests that the necessity for proof of prima facie wrongdoing is not invariably required when the defendant is a concurrent wrongdoer. That case law was not considered.
70. Equally, for understandable reasons of urgency, nor was there any consideration of the difference between sole discovery and discovery sought against concurrent wrongdoers insofar as evidence of prima facie wrongdoing is concerned. Nor was there a consideration of the potential for the inherent jurisdiction of court to accommodate such an order, even where no prima facie proof of wrongdoing was demonstrated, where the interests of justice require it.
71. In the circumstances, I have concluded that the High Court decision on O’Brien should not be considered an authoritative statement on the law on this discrete point, and it is appropriate that I should depart from it.
Backdoor/vague jurisdiction
72. Before turning to a consideration of whether, in the circumstances of this case, the jurisdiction should be exercised, I must address the defendant’s argument that the plaintiff is circumventing the requirements of a Norwich Pharmacal order and using a “backdoor” of “vague” inherent jurisdiction. For the reasons identified above, I have concluded there is a jurisdiction to make orders directing the disclosure of the identity of potential third parties against concurrent defendants. As such, the jurisdiction in question is not “backdoor” merely because it differs from the Norwich Pharmacal jurisdiction.
73. In respect of the charge of “vagueness”, this seems to be a reference to Clarke J.’s statement in Mavior as follows: “ If in a constitutionally permissible way, the Oireachtas have defined the limits of a particular jurisdiction then it is not for the courts to extend those limits by invoking a vague “inherent jurisdiction ” (paragraph 17). However, the issue he was concerned with was whether there was effectively an ouster of the inherent jurisdiction of the courts in circumstances where the area had been delineated and addressed by statute or rules of court. That is not an issue in this application.
Application of principles to instant case
74. In Barry v. Buckley, Costello J. noted that the inherent jurisdiction to stay proceedings enabled the court to avoid injustice. In Primor, Hamilton C.J. referred to the courts having an inherent jurisdiction to dismiss a claim when the interests of justice required them to do so. Finlay C.J. observed in Megaleasing that the power to order discovery in the circumstances of the case “ was a power which must be sparingly used, though where appropriate it may be of very considerable value towards the attainment of justice ”. O’Flaherty J. observed in the same case that the action for discovery might prove to be a valuable instrument in the search for justice.
75. Having regard to the above, it seems to me that the paramount consideration that should guide my decision is whether making the order sought serves the interests of justice. I am conscious that the jurisdiction I propose to exercise is similar in nature to that exercised in the context of a Norwich Pharmacal order and I adopt the approach of Finlay C.J. that the jurisdiction is one that must be exercised sparingly. Equally, I have followed the approach identified by Dunne J. in Nolan to the effect that: “ This exceptional jurisdiction [to set aside an appeal pursuant to the inherent jurisdiction of the court] is not to be exercised in circumstances where there is another remedy available such as an appeal ”.
76. Having applied these principles, I am satisfied that plaintiff’s application should be granted for the following reasons:
– The plaintiff requires the information sought to prosecute his claim
77. As identified above, Dunne J. in Nolan has indicated that inherent jurisdiction should only be relied upon where there is no alternative. Here, it flows from the decision of Hickey v. McGowan and Cosgrove[2017] 2 I.R. 196, described below, that the plaintiff cannot sue the Christian Brothers as they are an unincorporated body and that individually, the members of the Congregation are capable of vicarious liability for any wrongdoing of another member of the Congregation, if they were members during the relevant period. One or more Brothers could act as representatives for the Congregation in these proceedings but have declined to do so. In those circumstances, if the plaintiff wishes to sue the Congregation for the wrongs he claims to have suffered, the only way he can do so is to sue the Brothers individually under the doctrine of vicarious liability. To do so he must have their names and addresses.
78. In Hickey, the plaintiff alleged that he been sexually abused by the second defendant, a teacher in a national school run by the Marist Order. The first defendant was the head of the Marist Order and was sued as being vicariously liable for the acts of the second defendant. The defence of the first defendant was straightforward. It was that members of an unincorporated association, such as the Marist Order, were not vicariously liable for the acts of another member.
79. The Supreme Court found that a party running a school could be vicariously liable for a teacher who sexually assaulted a child if there was sufficient evidence that such a party was in control of the activities of such a teacher; that religious orders were unincorporated associations, lacking in legal personality and therefore not capable of suing or being sued; that the members of an order could be vicariously liable for acts of abuse that were sufficiently closely connected to the object and mission of the order; that members of unincorporated associations who were members at the time of the tortious acts being committed by another member could be liable for such tortious acts but members who joined afterwards could not; and that as the first defendant did not plead or adduce any evidence that he was not a member of the religious order at the time of occurrence of the abuse of the plaintiff, the imposition of vicarious liability on him for the acts of the second defendant was justified. Hickey makes it clear that if a plaintiff seeks to impose vicarious liability on a religious order for the acts of a member of the order, he or she must sue the members of the order individually unless there is a representative defendant.
80. Further, for the reasons identified at the start of this judgment, I accept the submissions of the plaintiff that he has no other way of identifying the relevant persons who were Brothers at the relevant time – now some 40 years ago – except than by seeking them from the second named defendant who is the Province leader.
– Prejudice to the plaintiff absent the Order sought
81. The plaintiff has identified one member of the Congregation against whom he can allege vicarious liability – the second named defendant – but wishes to obtain the identities of the remainder of the Congregation at the relevant time. However, without identifying all or at least the majority of the Congregation at the relevant time, the plaintiff may be disadvantaged in realising any judgment he may obtain for the following reasons.
82. First, as discussed in some detail in Hickey, the question of recovery of any award of damages is a complex one, particularly where the alleged actions may have taken place many years before. In the present case, the abuse is alleged to have taken place over 40 years ago. As O’Donnell J. observed, in the context of a discussion about O.15 r.9:
“The appropriate course in such a case is to write to the order or provincial threatening to sue all individual members of the order unless a defendant is nominated. If that course is not taken, then all members who can be identified can be joined as defendants. If however any judgment is obtained against those defendants, the judgments are individual and whether or not such judgments will be met by insurance, or from assets which may be held for the benefit of the order more generally, may depend upon the terms of the insurance, and indeed the terms upon which such assets are held, and perhaps the willingness and ability of the order to make funds available to satisfy any judgment against an individual ”.
83. In my view, it is probable that the plaintiff will have improved prospects of recovery if he obtains judgment against multiple members of the Congregation rather than one or two.
84. There is another, more technical reason, why the plaintiff may be seriously disadvantaged if he is ultimately successful but only as against the existing two defendants. This arises out s.35(1) of the Civil Liability Act 1961 (as amended). This provides: —
35.(1) for the purpose of determining contributory negligence —…
(i) where the plaintiff’s damage was caused by concurrent wrongdoers and the plaintiff’s claim against one wrongdoer has become barred by the Statute of Limitations or any other limitation enactment, the plaintiff shall be deemed to be responsible for the acts of such wrongdoer…
85. As identified in Hickey, the reason for this section is to incentivise plaintiffs to sue all potential concurrent wrongdoers as otherwise, a plaintiff may simply throw all the loss upon one defendant. O’Donnell J. observes that the section has the capacity to operate harshly in certain circumstances, including where there are a large number of defendants who may be concurrent wrongdoers on the grounds of vicarious liability but whom it may be very difficult to identify and whom the plaintiff may not have the capacity to identify. In such a situation he notes it may be unfair to reduce the plaintiff’s award for failure to join all potential parties (paragraph 67). O’Donnell J. notes that s.35(1)(i) might benefit from further detailed scrutiny and observes that it might be inappropriate to permit a defendant to rely on the failure of the plaintiff to sue other members of the religious order when knowledge as to the identity of such members was more clearly within the power and control of the defendant. However, that issue was not raised in Hickey and therefore not decided.
86. That discussion serves to show that any reliance upon s. 35(1)(i) by the second named defendant to reduce any award the plaintiff might obtain could be problematic. But the position would not necessarily be the same if the first named defendant sought to rely on s. 35(1)(i) given that no request has been made to him for the requisite information. Moreover, it is not possible to be sure as to how any such argument would ultimately be resolved. The plaintiff is in my view potentially at a significant disadvantage in knowing that there are (on his case) concurrent wrongdoers whom he would like to sue but cannot because of the refusal of the second named defendant to provide the names of same.
– No reason given for decision to withhold names
87. The second named defendant has failed to give any reason for his refusal to provide the names of his fellow Congregation members. The second named defendant has been identified by the plaintiff’s solicitor in the affidavit grounding this motion as the Province leader of the Congregation of Christian Brothers, European Province and it is averred that he is uniquely positioned as the person with knowledge of the membership of the Congregation of Christian Brothers in Ireland (paragraph 5). This averment has not been denied. The second named defendant is entitled to stand on his rights and is not obliged to facilitate the plaintiff by providing the names of his fellow Brothers during the relevant years; however, his decision not to engage substantively with the request means that I must proceed on the basis that he is in a position to provide the relevant information. Moreover, it means that I cannot consider any matters that he might have put forward mitigating against the information being provided.
88. I recited at the start of this judgment the letter of 8 June 2019, where the second named defendant’s solicitors confirmed they were instructed by Mr. Garvey in his personal capacity only. Submissions were also made to this effect by counsel on his behalf. As identified above, the second named defendant is entitled to decline to act in a representative capacity. However, he cannot distance himself from his identity and/or occupation in this way. He does not deny that he is the Province leader of the Congregation or that he is a Christian Brother. He does not deny he has access to the information sought. In those circumstances, this curious submission cannot provide a basis for declining to provide the relief sought.
– Interests of the Brothers whose names are sought
89. As identified by McCarthy J. in Megaleasing, a Norwich Pharmacal order “ requires a balancing of the requirements of justice and the requirements of privacy ” [para. 58]. Although this is not a Norwich Pharmacal order as such, a similar approach is apposite here.
90. In considering the requirements of privacy, it is undisputed that there were a significant number of Christian Brothers who were members of the Congregation in Ireland at the relevant time. Moreover, the identity of the Brothers now sought to be identified was known at the relevant time. In other words, the order sought will not make known anything that was unknown during the time period at issue. The collective nature of the Christian Brothers is relevant here. As observed in Hickey, the court is:
“ entitled to take cognisance of the fact that members of religious orders at that time normally wore habits of standard design, identifying them as members of orders, and indeed correspondingly reducing their individuality, while emphasising their part in a collective ” [para. 37].
It is not as if the Brothers were part of some secret society, whose members never expected to have their identity disclosed. On the contrary, at the relevant time, it would have been clear to all who interacted with members of the Congregation that they were Christian Brothers. Accordingly, the order will not impact upon the Brothers’ right to privacy since their identity as Brothers was not a private matter.
91. Moreover, the interests of the Brothers are protected in that the information obtained by this order can only be used by the plaintiff for the purposes of issuing proceedings against them and for no other purpose and this will be a condition of the order when drawn up.
Conclusion
92. In the circumstances, I have no doubt in concluding that the order sought here may, in the words of Finlay C.J., “ be of very considerable value towards the attainment of justice ”. Conversely, it seems to me that to allow the second named defendant, who has the relevant information in his possession, to withhold it with the possible effect of stymying the plaintiff in his ability to recover (if he succeeds), without providing any reason for such withholding, would be contrary to the interests of justice. The Supreme Court held in Hickey that individual members of a congregation may be vicariously liable for sexual abuse carried out by one of their members: to permit religious orders to withhold the names of their congregations without justification would allow them to subvert the reasoning in Hickey and would be unfair on a plaintiff who has no other means of recourse against a congregation.
93. As I observe above, the thrust of the case law appears to be that inherent jurisdiction, certainly in the context of discovery, should be used sparingly but not necessarily exclusively on “extreme” or “rare” occasions. Adopting a parsimonious stance towards the grant of this type of relief, the circumstances of this case appear to me to warrant the relief sought for the reasons set out above i.e. the plaintiff requires the information sought to prosecute his claim, he is likely to be prejudiced absent the information, no argument is made that the information is not within the procurement of the second named defendant, no reason has been given to justify a withholding of the information and the interests of the Brothers whose names are sought will not be adversely affected.
94. Equally, I see no alternative to making the Order sought as the plaintiff has no other way of obtaining the names and addresses of the members of the Congregation at the relevant time.
95. If I am wrong about this and the jurisdiction to direct a concurrent wrongdoer to disclose the names and addresses of other potential wrongdoers should only be exercised in extreme or rare circumstances, it seems to me that a situation such as that of the present, where the Province leader of the Congregation of Christian Brothers in Ireland is refusing to identify his fellow members of the Congregation during a particular time period, despite the fact that during that period they were clearly identifiable as Christian Brothers, is rare indeed. Thus, it remains an appropriate case in which to exercise the jurisdiction.
96. Accordingly, I order that the second named defendant be ordered to disclose the full names and addresses of the persons who were members of the Congregation of Christian Brothers in Ireland from 1 August 1979 to 31 December 1984 and are currently members of the Congregation of Christian Brothers.
Costs
97. I propose that the costs of the motion should be borne by the second named defendant given that he has been unsuccessful, with a stay upon same pending the determination of these proceedings.
98. If either of the parties wish to argue for a different decision on costs, submissions of no more than 1,000 words should be filed within one week of the date of delivery of this judgment identifying the reasons for same. If no submissions are received I will make an order in the terms proposed.