Public Authorities II
Cases
Burgess v Mulholland
[2012] IEHC 566, Irvine J. JUDGMENT of Ms. Justice Irvine delivered on the 21st day of December, 2012
1. The plaintiff in these proceeding is a young man who was born on 3rd August, 1985 and resides with his parents and siblings at Ard More Court, Brookville, Tallaght.
2. The within proceedings arise out of a road traffic accident which occurred at approximately midday on Saturday, 8th November, 2008, on the Tallaght Bypass at its junction with Killinarden Way, a junction controlled by traffic lights.
3. The plaintiff, who had just turned 13 years of age at the time and was well familiar with this very major junction, had being staying with his grandmother in Killinarden the previous evening. He was making his way home to his own house on the far side of the N81 and was crossing at the aforementioned junction when he was struck by a vehicle driven by Mr. Mulholland, the first named defendant, which at the time of the impact, was travelling in what is commonly described as the overtaking lane of the highway travelling in the direction of Blessington. It is not disputed that before he was struck by Mr. Mulholland’s vehicle the plaintiff had made his way across two of the three traffic lanes which are present at that junction.
4. It is not really in dispute that what probably happened on this occasion was that the road traffic lights were red for traffic coming out of Dublin and going in the Blessington direction. While the lights were red, the plaintiff left the footpath and when he was approximately half way across the roadway the lights changed to green and he, recognising this fact, picked up speed and was struck by the front passenger wing of Mr. Mulholland’s car as he emerged from behind the front of the vehicle which had been in the centre lane of traffic.
5. In the days leading up to 8th November, 2008, the second named defendant (“the local authority”) had been carrying out substantial road works at the junction and these appear to have been for the purposes of renewing and upgrading the pedestrian crossing. From the photographs produced in evidence, it is clear that significant works were taking place on what was the original footpath and roadway at the corner of the junction from whence the plaintiff commenced his journey prior to his accident.
6. The plaintiff maintains that he was injured due to the negligence of the local authority in the manner in which it failed to make proper and safe provision for him to cross this national route during the construction works. He emphasised the fact that the junction is located in a densely populated residential area where it is used by all sectors of the community, both young and old. Further, having moved the pedestrian crossing area forward in the Blessington direction by approximately 8ft, it allegedly failed to adequately position the temporary traffic light and its pedestrian signal box so as to enable him, as he had always done before, make his way across this wide and dangerous roadway.
7. The plaintiff also maintains that the local authority failed to provide adequate road signage to warn vehicles approaching this junction of the altered layout so as to ensure that all drivers would adjust their speed to take into account any additional risks that might arise by virtue of such road works.
8. Further allegations of negligence were maintained by the plaintiff against the local authority relating to the manner in which one of its employees, a Mr. Sutcliffe, now deceased, and for whose actions it is vicariously liable, drove and or managed one of its trucks on the day in question. It is maintained that Mr. Sutcliffe brought a local authority truck to a standstill approximately 25ft beyond the demarcated stop line for the junction as a result of which he not only interfered with the Plaintiff’s ability to cross at the designated temporary crossing with a full view of the traffic to his right but also obscured his view of the pedestrian red/green man signal which he ought, in normal circumstances, have been able to see on the traffic signal on the central traffic island.
9. The final assertion of negligence against the local authority relates to the condition of the horn on the local authority vehicle being driven by Mr. Sutcliffe. It is maintained that the horn on that vehicle was defective. Accordingly, when Mr. Sutcliffe became aware of the change in the lights from red to green and of the plaintiff’s presence on the crossing and Mr. Mulholland’s approach in the overtaking lane he was unable to sound his horn to warn the plaintiff of his approach.
10. As against Mr. Mulholland, it is maintained that while he was driving within the speed limit, he was, nonetheless, travelling too fast on his approach to the junction, having regard to the nature of the area through which he was travelling. It is alleged that he was not keeping a proper lookout and that he ought to have noticed the plaintiff approaching the junction from Killinarden Way and proceeding across the first lane of the highway before he became obscured behind Mr. Sutcliffe’s vehicle. Finally, it is alleged that Mr. Mulholland negligently failed to notice the lights change from red to green in his favour as he approached the junction and in particular failed to notice that the other vehicle or vehicles in the centre lane had not moved in response to the signal change, thus alerting him to the possibility that there might be a pedestrian on the junction who had not completed their crossing.
11. The local authority maintains that it was not negligent in relation to the management of the roadworks and claims that the plaintiff’s injuries do not arise as a result of any negligence or breach of duty on its part. It maintains that the plaintiff had access to the signal box controlling this junction and that he ought, regardless of which way it was facing, to have deployed it. The local authority contended that the plaintiff ought to have known, regardless of his ability to see the pedestrian crossing signal on the central island, that he could not have had the benefit of a green man traffic signal if he had not deployed the controls on the signal box as it was what is described an “on demand” sequence. It contended that the plaintiff should have sought to deploy the signal and then have waited until he actually had sight of a green pedestrian signal before commencing to cross the junction. It was also alleged that when the lights changed as he proceeded across the roadway, he should have known better than to pick up speed when he could not see beyond the driver’s wing of Mr. Sutcliffe’s vehicle. Accordingly, it submitted any liability for the plaintiff’s injuries must rest either with Mr. Mulholland or the plaintiff.
12. Mr. Mulholland maintained that he was not negligent in respect of the plaintiff’s injuries and that these were caused either by his own negligence or by the negligence of the local authority by reason of its failure to ensure that there was a safe temporary crossing place for pedestrians while they were carrying out roadworks at the locus in quo.
13. Because the plaintiff sustained a head injury in the course of the collision he was not in a position to give much evidence as to what precisely occurred on the day in question. However, the court had significant assistance in this case due to the fact that the plaintiff’s collision was witnessed by a number of motorists who were stationary and observing the junction at the time. I do not intend to recite in this judgment all of the evidence given by each of these witnesses. It is sufficient to say that the court heard evidence from a significant number of witnesses. It heard evidence from Mr. John Lowe and Mr. John Farrell, both of whom were stationary in their vehicles facing the city centre, but in the right-hand lane, intending to make a right turn up into Killinarden Way at the time of the collision. The court also had the benefit of evidence from Mr. Frank Judge, who was stationary in his vehicle on the speed ramp in Killinarden Way. He was a number of cars back from the junction and because of some delay at the junction he also witnessed the collision. Apart from these witnesses, the court heard from Sergeant Lawlor who had carried out an investigation into this accident, from Garda O’Connell who interviewed Mr. Mulholland after the accident and also from three consulting engineers retained by the respective parties. In addition, the court had the benefit of a number of statements including two made by Mr. Sutcliffe prior to his death, albeit that his evidence, as set out in these statements, could not be challenged by any of the parties.
14. Having considered all of the evidence, it appears to me that the liability decision in this case very much depends upon the conclusion I reached in relation to a number of disputed facts, the most important of which are:-
(i) the likely stationary position of the local authority truck driven by Mr. Sutcliffe;
(ii) the likely location and positioning of the temporary road traffic light holding the signal box governing the pedestrian crossing;
(iii) the extent of the traffic in the centre lane behind Mr. Sutcliffe’s vehicle at the time of Mr. Mulholland’s approach to the junction; and
(iv) whether there was any stationary traffic in the inner lane of the three lanes as the Plaintiff sought to commence his passage across the roadway.
15. I now propose to set out my findings of fact and the more significant aspects of the evidence which have informed each decision.
(i) I am satisfied that the plaintiff had satisfactorily traversed this junction, often several times a day, in the year or two leading up to 8th November, 2008 and that it was his normal practice to do so with the assistance of the pedestrian crossing signal. I accept his evidence and that of his mother in this regard.
(ii) From the plaintiff’s own evidence and that of Mr. Farrell, Mr. Lowe, Mr. Judge and the written statement of Mr. Sutcliffe, I am satisfied that on the day of this accident, the plaintiff did not seek to deploy the pedestrian signal which controls the pedestrian crossing to which I have earlier referred.
(iii) I am satisfied that the position of the temporary traffic light which is seen in the photographs suspended in a concrete block was, on the day of the plaintiff’s accident, in the same position as that depicted in photograph No. 6, taken by Rowen Engineering Consultants on Monday, 10th November, 2008. In reaching this conclusion, I have compared this photograph with the photographs taken on the day of the accident. These show the pedestrian entry from the footpath onto the roadway to be in precisely the same position as that which is depicted in the photograph of 10th November. I therefore think it is highly likely that the road traffic signal was in the same position on both dates. Further, the uncontested evidence was that there were no roadworks carried on over the weekend. Hence, there would have been no reason for the layout of the crossing to be changed between Saturday, the day of the accident and the following Monday.
(iv) Given that the traffic light was in the position just mentioned on the day of the accident and in circumstances where the signal box is fixed to the upright of the traffic light, I am satisfied that the signal box was, on the day of the accident, facing towards the Dublin traffic rather than either facing the pedestrian that might be approaching the crossing or turned such that it would readily present to a pedestrian actually standing preparing to cross.
(v) I am satisfied that the only access the plaintiff had to the crossing on the day of his collision was from the left hand side of the traffic signal shown in photograph No. 6, taken by Rowen Engineer Consultants on 10th November, 2008. The plaintiff was not able to cross at the normal crossing point which is demarcated by the white lines to the immediate right of the traffic signal shown in the photograph of the 5th November, 2008 and which is to be found at photograph No. 2, divider 1.
(vi) I am satisfied on the balance of probabilities that Mr. Sutcliffe brought his truck to a standstill in the centre of the three lanes of traffic and that when he did so the front of his vehicle was about one foot back from the broken white line shown in photograph no 6 divider 3 dated the 10th Nov 2008. This is borne out by the evidence of Mr. Farrell and Mr. Lowe and is in some respects corroborated by the statement of Mr. Sutcliffe. I think it is much less likely that the truck was in the inner lane or stopped in the position identified by Mr. Judge in evidence. Even though he may have been closer to the locus than Mr. Farrell or Mr. Lowe, I think they were at a better angle to judge Mr Sutcliffe’s position, apart from the fact that this is the lane in which Mr. Sutcliffe himself stated he stopped his truck.
(vii) I am satisfied that there was probably a line of traffic stopped behind Mr. Sutcliffe’s vehicle at the time when Mr. Mulholland was making his approach to the junction. This is the account that Mr. Mulholland gave to Garda O’Connell on 1st January, 2009. I tend to prefer this evidence to the oral evidence given by Mr. Farrell in the course of the proceedings to the effect that he believed that Mr. Sutcliffe’s vehicle may have been the only vehicle in the centre lane. I believe that Mr. Mulholland’s evidence is somewhat supported by the statement that Mr. Farrell made to An Garda Síochána on 21st November, 2008, when he stated that the Council truck was “first in queue at the lights” and Mr. Sutcliffe’s statement that he was “the first in line in my lane” heading straight for Blessington. Further, Mr. Sutcliffe in his statement to An Garda Síochána made it clear that he had been stopped at this light for about 30 seconds prior to it changing to green. I think it is highly likely that over that period of time on a Saturday other vehicles would have reached the junction and formed a line in the central lane. I think it would be highly unlikely, having regard to the lengthy traffic sequences which have been outlined to the court in the course of evidence to believe that only two vehicles came to a standstill at this junction while each of the other two traffic sequences were completed.
(viii) I am satisfied that prior to the collision, there was also a vehicle stopped in the first of the three lanes of traffic i.e. the lane designated for traffic intending to turn left into Killinarden. I make this conclusion from the statement of Mr. Sutcliffe.
(ix) I am satisfied that at the point of impact Mr. Mulholland was travelling well within the speed limit and at a maximum speed of 29 Km per hour.
Decision on the Liability Issue
16. Of importance to the liability issue in these proceedings is the fact that the plaintiff’s accident occurred at a road traffic junction in a built up area. The junction where the plaintiff was crossing at the time he was knocked down by the first named defendant’s vehicle is a crossing situated in the middle of two residential communities. This fact would be obvious to anybody driving through the area without any prior knowledge and would have been particularly known to the local authority which, at the time of the plaintiff’s accident, was reconfiguring the traffic lights at the junction. As can be seen from the photographs, the new configuration of the crossing has introduced a range of barriers at the edge of the pavement and on the central island indicative of the fact that it was well understood that this crossing is used to join these residential communities to each other and as such was likely to be used by young children trying to cross two sections of roadway, each spanning three full lanes of traffic on a national route in an 80km speed limit zone.
17. In these circumstances, it was incumbent upon the local authority when planning to redevelop this junction to make a traffic plan to ensure that all motorists approaching this junction would be doing so with particular care having regard to road works and any confusion that might be generated by them. It was also mandatory for the local authority to have a plan to ensure that a pedestrian crossing of the same standard as would be expected in the absence of road works was available to all pedestrians potentially using the crossing in the course of these road works.
18. It goes without saying that regardless of the speed limit on a road such as this, there is a duty of care on every motorist driving through a built up area to keep a vigilant eye out for any pedestrians that might emerge onto the road way so as to create a hazard and to drive in a manner sensitive to the actions of other drivers in and about an area which incorporates a pedestrian crossing. It is also obvious that regardless of the presence or absence of any road works, a motorist must not bring their vehicle to a stop on a junction or a pedestrian crossing where it is likely to cause a hazard for a pedestrian. The motorist’s obligation is to bring their vehicle to a stop behind the white line which designates the stop line at any such crossing so as to afford both the motorist and the pedestrian a clear view of each other’s movements.
19. I am satisfied that the local authority was grossly negligent in a number of respects in relation to its management of this dangerous junction as of the date of the plaintiff’s accident. Firstly, in setting up an alterative pedestrian crossing, it did so in circumstances where it made it extremely difficult for a pedestrian to access the pedestrian signal box to avail of what is commonly described as the “green man” phase provided for within the traffic light sequence. The pole upon which that signal was mounted was located amongst road traffic cones and other debris on an area of broken ground adjacent to the roadway. The location of the traffic light pole on which the pedestrian signal box was mounted was so positioned that any pedestrian trying to access it would have to try to reach their hand around in a blind type of fashion in order to try to depress the signal by exerting pressure on the glass plate to the front of the signal box.
20. I am satisfied that it was reasonably foreseeable that a pedestrian of thirteen years of age approaching this junction and seeing the location of the signal box might reasonably have concluded that it was not operational or that he might not be able to deploy it and might instead favour crossing the junction at a time when the traffic appeared to him to be stopped, albeit that he did not have the benefit of a green pedestrian signal showing in his favour. It was vital, according to Mr. Wood, Consulting Engineer, that the pedestrian signal box should stand out and present favourably to the pedestrian as they approach or arrive at the crossing.
21. The local authority’s negligence in respect of the configuration of the temporary pedestrian crossing was further severely compounded by the negligence of its servant or agent, Mr. Sutcliffe, in his driving the local authority truck. He drove this vehicle which has a cab that is 83 inches high almost 25ft beyond the stop line which can be seen clearly in Photograph C11 of 10th November, 2008, and almost up to the dotted white line which is apparent in that photograph. The effect of his breach of duty in this regard was that the plaintiff’s intended path of travel across the temporary crossing was impeded, but more significantly, the positioning of his vehicle made it impossible for a pedestrian of the plaintiff’s height to see clearly the pedestrian red/green man signal on the traffic light on the central island to which he had intended travelling. In this regard, I think it was more than reasonably foreseeable that a young man such as the plaintiff this junction in circumstances where his line of sight to the red/green man signal is impeded and where he did not have ready access to the signal box controlling the pedestrian crossing and when traffic was stationary in his favour would decide to cross the roadway without seeking to deploy the pedestrian signal.
22. I reject the submissions made by counsel on behalf of the local authority to the effect that it was legitimate to expect that the plaintiff in such circumstances would seek to deploy the pedestrian signal and wait for the stationary traffic which was then present on the junction to clear such that he could see that signal and ultimately wait until the signal turned green in his favour. This is a submission that might have carried more weight in the absence of the stationary traffic of Mr. Sutcliffe which was occluding his view of the pedestrian signal on the traffic island. I believe that the scenario contended for by the local authority is one which involves a counsel of perfection on the part of a thirteen year old boy faced with a very unusual situation.
23. Insofar as Mr. Mulholland is concerned, I have to concern myself with the extent to which he, if keeping an adequate lookout and driving at an appropriate speed, might have seen the plaintiff such that he could have taken evasive action. In this regard, it is relevant to note that a motorist travelling in the overtaking lane who is 100m from this junction should have relatively unimpeded view of the junction and should have a sight line that will allow him see a pedestrian walk across approximately 18ft of margin or footpath as they approach the crossing from Killinarden Way. The first of the traffic lanes at the stopping line is 9.6ft wide according to Mr. O’Keeffe and the centre lane which includes the cycle lane is a further 11.3ft wide. These are probably the relevant widths when coming to consider Mr. Mulholland’s potential line of vision. A pedestrian of the plaintiff’s age walking at a normal pace should cover a distance of 5ft per second.
24. I believe it would be an exceptionally hard finding in the present case if I was to find any liability on the part of Mr. Mulholland, having regard to the findings of fact which I have made. I am satisfied that the reality of the situation from Mr. Mulholland’s perspective is that even keeping a proper lookout towards the footpath that he probably had no realistic prospect of spotting the plaintiff either on the footpath or on the roadway before this impact. Firstly, there was the parked car in the first lane, then there was possibly six or seven vehicles in the centre lane which would have interfered with his line of sight as he approached the junction. Further, he was driving a Toyota Carina which is an exceptionally small car which, depending upon the traffic around him, might further inhibit his visibility.
25. It is not in dispute that having regard to the width of the roadway where the point of impact occurred, it would have taken the plaintiff at least five seconds at a normal walking pace to make his way across the first two lanes of traffic and it is during this period that Mr. Mulholland was making his way cautiously towards the junction. I believe that his view of the plaintiff, once he had commenced crossing the roadway would have been almost completely obscured by a combination of the vehicle which Mr. Sutcliffe states was in the innermost lane and the truck and six or seven other vehicles which would have taken up the first 60 or so feet of the centre lane. Consequently, I believe that the only possibility Mr. Mulholland had of noting the plaintiff’s intention to cross was when he was more than perhaps 100m from the junction and whether he would have any sight of the plaintiff on the footpath would have been entirely dependent upon whether or not there was any traffic moving to his left. I believe it would be a very harsh judgment on Mr. Mulholland, having regard to his speed of approach to this junction which was modest in the extreme to find him culpable or blameworthy in respect of the plaintiff’s injuries.
26. My only real difficulty with Mr. Mulholland’s evidence is that he does not recollect the traffic lights turning from red to green but this is no reason to find liability against him. It may be the case that the lights changed almost immediately the plaintiff stepped onto the roadway and that the rest of the traffic, noting the plaintiff’s presence, stayed put for several seconds to allow him complete his journey. In that scenario the lights would have turned green three or four seconds prior to Mr. Mulholland’s arrival at the junction.
27. I also believe it would be to impose a false duty of care upon Mr. Mulholland to suggest that having approached this junction with a green light showing in his favour and driving at approximately 29km an hour, that he ought to have brought his car to a standstill as a result of seeing traffic in the central lane in a stationary position. Whatever about this argument being sustainable had Mr. Sutcliffe’s vehicle been stopped at the pedestrian crossing, his vehicle was in fact almost 25 ft. past the stop line and Mr. Mulholland felt that as he approached, the traffic was moving slowly. Bar stopping his vehicle, no other action on Mr. Mulholland’s part would have avoided this collision and I believe it is too onerous an obligation to suggest that Mr. Mulholland ought to have stopped in the circumstances that pertained. Looking at the concept of blameworthiness, I do not believe that Mr. Mulholland is blameworthy in respect of the plaintiff’s injuries.
28. I have considered the submissions made by counsel on behalf of both defendants in relation to whether or not and if so the extent to which I should find the plaintiff to be guilty of contributory negligence. Mr. Keane, S.C., on behalf of the local authority has relied upon the plaintiff’s prior knowledge of the junction to the effect that the pedestrian sequence is only available on demand. He submits that he ought to have sought to deploy the signal on the traffic light standard regardless of the position in which it was located or the direction in which it was turned. He submitted that at thirteen years of age, he should have waited for Mr. Sutcliffe’s vehicle to clear the junction and to have ensured that he had a green pedestrian light in his favour before he moved off. Further, the lights having changed against him he should have stopped and looked beyond Mr. Sutcliffe’s vehicle before proceeding across the overtaking lane. Mr. Reidy on behalf of Mr. Mulholland made similar submissions.
29. Having considered the evidence and the submissions made on the part of the defendants, I do not believe that I should find any contributory negligence on the part of the plaintiff who was thirteen years of age at the time and found himself faced with a relatively inaccessible signal, an invisible pedestrian light and a grossly impeded crossing. I do not believe that he took an unreasonable decision, when the traffic appeared to be stopped at the junction to proceed to walk across the roadway. Further, when the lights changed against him I accept the submission made by counsel on behalf of the plaintiff that he then had a Hobson’s choice. He was at risk if he move. He was at risk if he turned back or moved forward. According, having concluded that it was not unreasonable for him to move from the footpath, I do not believe that I can hold him contributorily negligent for anything he did thereafter.
30. In the aforegoing circumstances, I would apportion liability 100% as against the local authority.
Injuries
31. As a result of the impact, the plaintiff sustained multiple injuries. He was taken by ambulance to Tallaght hospital where his initial Glasgow Coma Scale was twelve. His condition deteriorated and he became unconscious. Examination disclosed the following injuries:-
(i) a fracture to the right tibia and fibula;
(ii) a fracture to the right humorous;
(iii) numerous soft tissue injuries to the head and scalp;
(iv) frontal contusions to the right occipital region with a fracture extending to the petrous templar bone; and
(v) compound fractures to the facial bones.
32. The plaintiff was admitted to the neurosurgical intensive care unit for intercranial pressure monitoring in Beaumont Hospital. Because of a rise in pressure he subsequently underwent bilateral decompressive craniectomies. His tibia and fibula fractures were also aligned using an external fixation device and his left arm fracture was treated conservatively.
33. The plaintiff remained intubated until 22nd November, 2008. In early 2009, he was admitted to Crumlin Hospital for the fitting of a tailor special frame to the fractured right leg and was subsequently discharged and returned to Tallaght Hospital in April 2009.
34. As a result of all of the aforementioned injuries, the plaintiff was out of school for approximately a year following his accident. He has made a very good recovery in respect of the orthopaedic injuries to which I have just referred, but it is the medical opinion of Mr. Keever, consultant in Accident & Emergency medicine, that he might nonetheless be at risk of developing arthritis as a result of some of the fractures. The plaintiff also experiences pain in his right arm occasionally and he has been left with a significant scar to his head which is not apparent at the present time due to the fact that it is covered by his hair. However, should his hair recede in the future this scarring is likely to cause him substantial disfigurement. He also has scarring to his right leg at the sites where the external fixating device used to realign his tibial fracture.
35. I am satisfied from the evidence of Mr. Pidgeon, Consultant Neurosurgeon, that the behavioural problems which the plaintiff has experienced since his accident which include mood swings, difficulty with temper control, lack of concentration, disinterest as to what the future holds for him and some degree of depressive symptoms are as a result of the brain damage which he sustained in this road traffic accident. This is a case in which the CT scan carried out in Beaumont Hospital has demonstrated encephalomalacic changes i.e. loss of brain substance, in both frontal lobes and that the plaintiff’s behaviour since this accident is typical of that type of injury. Mr. Pidgeon stated that he would be surprised that any child who had sustained this type of injury would not have the type of symptoms which were well described by the plaintiff’s mother and seen in the plaintiff’s own evidence. Mr. Pidgeon advised me that the plaintiff should not participate in any contact sports, and in this regard, I note that he was an enthusiastic participant in Tai Kwando and in soccer prior to this collision.
36. I am satisfied that the plaintiff will have a completely different type of future as a result of the head injury sustained in this accident than he would have enjoyed had he not been involved in the same. I believe it will impact upon him in terms of his social and vocational future and will substantially reduce his enjoyment of life.
37. From a vocational prospective, I accept the evidence of Ms. Coughlin that the effect of this accident on the plaintiff is that he left school without completing his Leaving Certificate as he would otherwise have done. He is a boy who apparently has an overall profile on a neuropsychological basis that is within the high to average range of ability. Notwithstanding efforts on the part of the defendants to suggest that the plaintiff had difficulties at school prior to this incident, I am entirely satisfied from his school records that he was an able, affable and enthusiastic student, well capable of achieving a good Leaving Certificate had he not been involved in this collision. He was a good student in the years leading up to this accident, albeit that he had some difficulties in the course of his early schooling. However, these were limited and appear to have been largely overcome by repeating a year and some additional tutoring.
38. I am satisfied that but for the collision the subject matter of these proceedings that the plaintiff would certainly have successfully completed his Leaving Certificate and may have gone on to third level education. However, in the current economic climate I tend to believe that on the balance of probabilities he would not have gone on to third level education but would have taken up employment probably as a skilled worker and might have hoped to have earned something in the region of €30,000 per annum or thereabouts.
39. I am satisfied from the evidence of Ms. Coughlin that the plaintiff now suffers from a number of very significant problems. Firstly, he has left school without the benefit of a Leaving Certificate and is uncompetitive within the present work market, having regard to his lack of any specific qualifications or training. He is also lacking in motivation and despite his parents best efforts they have found it impossible over the years to get him to attend school. Further, regardless of their engagement with a number of Social Services and vocational agencies, the plaintiff has not been agreeable to participation in any type of course that might improve his prospects of obtaining work. Most importantly, even if the plaintiff manages to obtain some type of qualification or training and then is successful in obtaining employment, his psychological problems are such that he may find it difficult to hold down employment. Accordingly, at the moment, he is in, what Ms. Coughlin describes as a no-man’s land and the longer this goes on, the more difficult the plaintiff will find it to get into the work market.
40. In coming to my conclusions in relation to the plaintiff’s vocational prospects, I have taken into account Mr. Pidgeon’s evidence that all of the recovery following traumatic brain injury takes place within the first eighteen months. The residual psychological problems are permanent.
41. I am going to assume that but for the accident the subject matter of these proceedings that plaintiff would have worked until he was 68 years of age. I believe that he would have been within the category of worker that could be described as skilled or semi-skilled and that he would earn on average €30,000 per annum. I am also going to assume that the plaintiff would have required some degree of training to obtain employment at this rate of pay and that his earnings would have started when he was nineteen years of age. Accordingly, but for this collision, I am satisfied that the plaintiff potential total earnings to age 68 may be calculated by multiplying his net weekly loss i.e. €478 by a multiplier of 1339 giving a total sum of €640,042.
42. Having regard to the injuries which he has sustained in the present collision I believe that the plaintiff will only now work on an intermittent basis for the rest of his working life. The defendants did not call any evidence to gain say, Ms. Coughlin’s view that the plaintiff will have real difficulty in sustaining employment because of his psychological injuries and her views in this regard appear to be well supported by Mr. Pidgeon’s medical evidence. Accordingly, I am going to assume, for the purposes of assessing the plaintiff’s future loss of earnings that he will now only work for approximately 25% of the time between now and when he is 68 years of age. I am also of the view that because he is now unlikely to obtain any further training that his likely net weekly income, during the periods when he does work, will be something approaching €400 per week. Accordingly, in trying to assess the capitalised value of those sums that will be earned by the plaintiff between now and 68 years of age, I have taken a net weekly loss as advised by Mr. Tennant, Actuary, of €100 per week and multiplied that by the multiplier which is appropriate to a period commencing now and ending when the plaintiff is 68 i.e. 1440. On that basis, the plaintiff’s future income generating capacity is capped at €144,000. Subtracting this €144,000 from the plaintiff’s potential total losses gives a figure of €496,042. I then must take into account those exigencies which are referred to in the court’s decision in Ready v. Bates. Taking these into account, particularly having regard to the nature of the employment which the plaintiff would have had but for this accident and which I think will be reasonably precarious for many years into the future, I feel that I should allow a total sum of €375,000 in respect of loss of earnings.
43. To the aforementioned figures must be added the agreed special damages of €176,818.86. For pain and suffering to date I will award a sum of €150,000 and I will award a further sum of €125,000 for pain and suffering into the future making a total award of €275,000 in respect of general damages. This should make the total award a sum of €826,818.86.
Bates v Minister for Agriculture, Fisheries and Food
[2018] IESC 5
Judgment of Mr Justice Peter Charleton, delivered on Wednesday, February 7th, 2018
1. The main point argued on this appeal is the liability of the State defendants for economic loss resulting from negligent advice given to the plaintiffs which caused their arrest by the Marine Nationale, and consequent fine by a magistrate in Brest, on 19 August 2003, while engaged in commercial scallop fishing just outside the territorial waters of France in the Bay of Biscay.
2. As to the source of the error which resulted in damages being awarded to the plaintiffs, primary facts were found by Laffoy J, the trial judge, in her judgment of 15 November 2011. These were not demonstrated on this appeal to be incorrect. In addition, an inference from the primary facts as to the ultimate cause of the misinformation given to the plaintiffs was made by the trial judge. This was not a conclusion based on circumstantial evidence. This inference came within the principles enunciated by McCarthy J in Hay v O’Grady [1992] 1 IR 210 at page 217: thus it is not the case that “an appellate court is in as good a position as the trial judge to draw inferences of fact.” He cited the judgment of Holmes LJ in Gairloch The SS, Aberdeen Glenline Steamship Co v Macken [1899] 2 IR 1, in turn cited by O’Higgins CJ in The People (Director of Public Prosecutions) v Madden [1977] IR 336 at p 339. Thus, an appellate court will:
…be slow to substitute its own inference of fact where such depends upon oral evidence or a recollection of fact and a different inference has been drawn by the trial judge. In the drawing of inferences from circumstantial evidence, an appellate tribunal is in as good a position as the trial judge.
3. That finding by inference, furthermore, was, in addition to fact, based on the pleadings. Whereas an explanation has now been offered in argument on this appeal as to an alternative source of the conclusion deduced from the evidence by the trial judge, this Court remains unconvinced that this has been demonstrated to have been an error by the trial judge. Hence, the inference must stand. This appeal is one of several originally sent to the Court of Appeal consequent upon the coming into force of Article 34.5 of the Constitution but taken up for hearing by this Court subsequently for administrative reasons.
Background
4. For decades, the species of fish that may be taken in European Union waters, the quantities thereof and the places that may be fished have been regulated. While it may seem that every kind of commercial fishing is subject to quotas set on an annual basis, it emerged on appeal that a few species remain that may be taken without limit. Scallops are not one of these. To fish for scallops, fishermen need a licence and this specifies the species to be taken, the tonnage and, often, the areas that may be fished.
5. The plaintiffs, Eugene Bates and Brendan Moore, are commercial fishermen and business partners who in 1999 saw a potential benefit in moving from general trawling to fishing for scallops. Fishing is a dangerous vocation and, for safety reasons, it is better that two boats operate together, especially where waters are stormy, as in the Bay of Biscay; a good area for taking scallops. Here the relevant craft are the motor fishing vessel William Joseph and the motor fishing vessel Alicia. The licence of 27 June 2000 for the William Joseph, granted under s 222B of the Fisheries (Consolidation) Act 1959, as amended, covered the period 21 May 1999 to 30 June 2002 and was subject to a condition that it should “fish solely for aquaculture purposes and for bivalve shellfish species.” This licence was later renewed. It was subject to the same procedure as followed in respect of the Alicia.
6. The plaintiffs applied to license the Alicia on 29 November 2001, informing the defendant Minister that they sought an aquaculture licence. To their application, a map was attached indicating various areas in which they proposed to fish, which did not include the relevant area of the Bay of Biscay. The southernmost boundary was at latitude 48A, N. This therefore excluded the area relevant to this appeal, which in the relevant European Union legislation is called VIIIa and extends from the coast of France outwards for some 200 km in the northern area of the bay. Also accompanying the map was an economic questionnaire and a fishing plan. These documents enable the relevant Minister, acting through his officials under s 2 of the Ministers and Secretaries Act 1924, to formulate conditions for the licence pursuant to the relevant legislation. Whereas the economic questionnaire did not mention where the plaintiffs proposed to fish, the fishing plan clearly stated that the place in which the plaintiffs intended to fish for scallops included area VIIIa and other areas in the months of May and June, June and July, and September and October.
7. The licence for the Alicia was issued on 2 May 2002, to commence on that date and to continue up to 30 June 2004, and specifically it was a condition that the boat should fish solely in a specified segment for aquaculture purposes and bivalve shellfish. The relevant licences for the William Joseph and the Alicia were later extended. Some conversion was necessary of the boats in order to render them fit for the challenging waters of the Bay of Biscay.
8. Over some 22 days, in September 2002, May 2003, July 2003 and August 2003, area VIIIa was fished by the plaintiffs for scallops. On 18 August 2003, when both vessels were fishing just outside the territorial 12 mile limit of French waters, a French fishery patrol aircraft made contact with them and informed them that they were fishing illegally for scallops in that area. They were therefore ordered to proceed northwards above latitude 48A, N. They acted accordingly but decided to check on the information which they had received from the defendants: essentially, their query was whether it was lawful for them to fish where they had been fishing. The plaintiff Eugene Bates was ashore and thus in a position to contact the defendant Department when he received the query from the vessels. The information which he received from the Department was that the plaintiffs were entitled to fish legally in area VIIIa up to the limit of French territorial waters. This information, given orally by the defendant Department, was confirmed by fax to him later that day. He thus told the skippers of the two boats to continue fishing in that area. Later that night, however, in the early hours of 19 August 2003, the Maritime Nationale arrested the boats, conveying them to Brest that afternoon.
9. On the morning of 20 August 2003, the skippers attended a court hearing at which the vessels were released on lodging bonds aggregating €27,000. Later, answering to bail on 7 November 2003, Eugene Bates and the skipper of the Alicia pleaded guilty to charges of illegal fishing at a Magistrate’s Court hearing. Fines of €18,000 were imposed on them and in addition there were civil charges of €48,000 and costs in the sum of €1,500.
The High Court judgment
10. In her judgment, the trial judge held that the background to the arrest of the vessels in August 2003 included assurances from the Department that they could fish in areas VIIIa/b/c, the issuance of licences based upon the fishing plan, and following a ban on scallop fishing by the British authorities in that area, a further specific assurance was given that this applied only to British-registered vessels and was not in consequence of any European Union legislative action. Preparatory to the trial, and presumably for a plea in mitigation, in a letter dated 5 January 2011 to the plaintiffs’ solicitor, the defendant had accepted that these assurances had been given. In fact, the mistake was only discovered within the Department when, following on the arrest on 19 August 2003, an official contacted their French counterpart in the Direction des pêches maritimes et de l’aquaculture and was informed that the version in the French language of the relevant European Regulation gave a quota for scallop fishing exclusively to French vessels in area VIIIa and excluded vessels registered in any other Member State.
11. The trial judge explained the origin of the mistake in her judgment at paragraph 15 thus:
Council Regulation (E.C.) No. 2027/95 of the 15th June, 1995, establishing a system for the management of fishing effort relating to certain Community fishing areas and resources, provided in article 2 that the maximum annual fishing effort for each member state and for each fishery should be as indicated in the annex. In the English language version, as published in the Official Journal of the European Communities on the 24th August, 1995, one page of the annex dealt with scallop fishing, from which it was clear that Ireland had zero fishing effort in area VIIIa/b/d. Unfortunately, the officials in the department were working from an English translation of another version thereof, which was defective in that it omitted the line in the annex relating to area VIIIa/b/d. Accordingly, it was not obvious to the officials that Ireland had zero fishing effort in relation to those areas under the Regulation of 1995. On the basis of what is pleaded in the defence, it would appear that the officials in the department were working from a translation of the consolidated version of the Regulation of 1995, which was published on the 30th January, 1999.
12. Later in her judgment, at paragraphs 57 and 58, the trial judge drew on the plea in the defence referring to the “English translation” version of the Regulation to find that the defendant Department had negligently given out information which resulted in a loss to the plaintiffs:
Given the context in which the plaintiffs sought information from the officials of the department in relation to their entitlement to fish for scallops in area VIIIa, in my view, the proximity test is met and a duty of care was owed to the plaintiffs, as persons who were applicants for, and the holders of, sea-fishing boat licences to enable them to fish for scallops, and who were relying on special knowledge and expertise of the officials of the department in connection with the complexities of Community law on fishing. The duty of care required the officials, when furnishing the information sought by the plaintiffs to them, to conform to a standard which would not expose the plaintiffs to unreasonable risks. The official who gave the admitted assurances to the plaintiffs prior to August, 2003, Mr. O’Driscoll, did not testify. However, in my view, that does not hamper the court in coming to a conclusion as to what gave rise to that official giving wrong information to the plaintiffs. The official who was in contact with Direction des Peches Maritimes et de L’Aquaculture on the 19th August, 2003, Mr. Andrew Kinneen, sea fisheries control manager, did testify. His explanation for his misunderstanding of the legal position was, as I have outlined earlier, that the file copy of the English translation of the Regulation of 1995, which was available to him, which was in the normal format of the Official Journal, differed from the French language version. In my view, it is reasonable to infer that that was also the source of confusion which led to Mr. O’Driscoll giving the plaintiffs the wrong information. … While it would be unfair to ascribe negligence to either of the two officials who communicated with the plaintiffs, I have come to the conclusion that some official of the department for whom the defendants are vicariously liable must have been negligent in failing to ensure that the version of the translation of the Regulation of 1995 which was available to be consulted by officials who had to deal with queries in relation to the fishing effort available to Ireland, in the context of applications for sea-fishing boat licences, correctly reflected the Regulation of 1995 as implemented. Therefore, I am satisfied that the plaintiffs have established an entitlement to damages to compensate them for the economic loss which they incurred as a result of acting on the incorrect information given by officials of the department as regards the entitlement of a sea-fishing boat licensed in this jurisdiction to fish for scallops in area VIIIa.
13. While the plaintiffs claimed that the earlier advice from the Department, preceding the arrest of 19 August 2003, caused economic loss in the form of the claimed wastage in the conversion of the Alicia for sea fishing in the Bay of Biscay and a substantial loss on sale, the trial judge awarded only the damages immediately consequent upon the advice given by the Department when the vessels were on the high seas in the Bay of Biscay which resulted in them staying within area VIIIa; the advice which directly caused their arrest. Hence, the sum awarded was the sum paid to the French courts and the few days’ loss of fishing which this unfortunate experience entailed. Hence there was judgment only for the sums resulting from the arrest and the immediate loss of fishing days. Quantification of those damages has not been challenged on this appeal.
Basis for liability
14. The relevant law on economic loss resulting from negligent misinformation was most recently analysed in the majority judgments in Cromane Seafoods Limited and O’Sullivan McCarthy Mussel Development Limited v The Minister for Agriculture, Fisheries and Food, Ireland and the Attorney General [2016] IESC 6. In the instant case, damages had originally been claimed by the plaintiffs on the basis of a legitimate expectation which, it was pleaded, enabled them to lawfully fish for scallops in the relevant area of the Bay of Biscay. The trial judge rightly dismissed this head of liability, ruling that since European legislation enabled only French vessels to take a particular quota of scallops in that area, there could be no expectation legitimately held by the plaintiffs, since that would be contrary to law; see Wiley v The Revenue Commissioners [1994] 2 IR 160. Such an expectation she held, if proved, must be legitimate in law; applying Daly v Minister for the Marine [2001] 3 IR 513. Further, since there was no right to fish in area VIIIa that inured to the benefit of the plaintiffs, there could be no infringement by the defendant Minister of any entitlement under European law; applying Emerald Meats Ltd v Minister for Agriculture (No 2) [1997] 1 IR 1.
15. The trial judge held, however, that since there was a relationship of proximity between the Department officials and the plaintiffs, that since carelessness could within the reasonable contemplation of those officials cause harm to the plaintiffs, and that there were no considerations which ought to negative, reduce or limit the scope of such a duty or care, the particular circumstances had established liability but only in respect of the last action in advising an entitlement to fish, set as it was as against the background of prior advice. Applying the test, in that context, of whether it would be just and reasonable not merely as between the parties, but also asking what would be just and reasonable from the point of view of the public interest, to fix liability on the Department, the trial judge found for the plaintiffs as regards the damage flowing immediately from the arrest of the two fishing vessels.
16. Two issues would arise in this context. Firstly, whether an office of Government, in giving information to interested parties looking to them for assistance, on matters within their administrative remit, is subject to the law of negligence or is, instead, capable of being made liable only through the application of the tort of abuse of public office. The second issue is as to the circumstances in which liability for incorrect advice arises.
17. As to the first issue, this has been discussed by this Court’s decision in Cromane Seafoods. It is unnecessary to go beyond the analysis in the judgments of MacMenamin J and Charleton J, especially as this decision was founded on established authority. As put in McMahon and Binchy, Law of Torts, 4th Ed, (Dublin, 2013) at paragraph 6.78, the functions of public authorities:
… require them to have regard to a host of policies, interests and rights that potentially pull in different ways. If a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity. Courts are conscious of this reality when addressing the duty of care.
18. The ruling of Laffoy J in this case is not one which overturns existing law. Rather, it applies it. What was sought from the Department by the plaintiffs was advice in a particular context: that of an imminent arrest. Had it been the case that the function being exercised on behalf of the defendant Minister was an administrative task conducted pursuant to a statutory remit, then, the question of whether any duty of care was owed, the proper starting point for any negligence analysis, would be answered negatively. Beatty v Rent Tribunal [2006] 2 IR 191 concerned a statutory body established by the Housing (Private Rented Dwellings) Act 1982. The issue was whether that entity could be liable in negligence to landlords in relation to the manner in which the review of the rent payable was conducted. This was a statutory function. The majority in the Supreme Court (Denham, Hardiman and Geoghegan JJ) decided that it could not. Geoghegan J stated at page 195:
There is a single and simple reason why I believe that the appeal should be allowed and the claim for damages dismissed. Even though the respondent is a tribunal which essentially determines rent disputes as between private parties, it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that, provided it is purporting to act bona fide within its jurisdiction, it enjoys an immunity from an action in ordinary negligence.
19. At page 219, McCracken J, speaking about the imposition of liability on a public body charged with statutory responsibility stated:
What can be gleaned from the various decisions is that there are circumstances in which, for reasons of public policy, it would not be just and reasonable to impose a duty of care. What is to be considered as just and reasonable is not merely what would be just and reasonable as between the parties, but also what would be just and reasonable in the public interest. Where a public body, such as the respondent, performs a function which is in the public interest, then in many cases and I believe this to be one of them, that body ought not to owe a duty of care to the individuals with whom it is dealing. It is in the public interest that it should perform its functions without the fear or threat of action by individuals. The fact that it is performing a function which is in the public interest may outweigh any duty of care to private individuals. Whether it does or not, of course, is a matter for decision based on consideration of the position of any particular public body.
20. As was stated in the Cromane Seafoods case, the judgment of Charleton J at paragraph 29, where a wrong is alleged against a public body in the exercise of a duty, then the remedy is not negligence, but misfeasance in public office:
Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation. If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries.
21. While a duty of care may not be owed due to the existence of a wider statutory duty conferred by legislation, that does not mean that a public body is, simply by reason of its status, immune from the commission of torts. This is the second issue. The law remains as stated in Pine Valley Developments v The Minister for the Environment [1987] IR 23. Thus, while no duty of care may be owed in the exercise of public functions by a public body, nonetheless, there is not immunity from tort outside misfeasance in public office. The law as applied by Laffoy J in her judgment was that stated by Finlay CJ from page 36 of that decision:
The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:-
1.If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2.If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons.
3.If the authority knows that it does not possess the power which it purports to exercise.
22. Hence, absent any desire to injure the plaintiffs in their vocation as fishermen, or the exercise of authority knowingly outside the bounds of statutory power, both of which would fit the elements of the tort of misfeasance in public office, and both of which clearly did not happen, the question resolves as to whether any other tort was committed. In terms of the issuing of licences, there is no question but that this was done by the Department in good faith and within the limits of the jurisdiction it was exercising. There, there can be no liability. On appeal, however, the defendants argued this as a case which shattered the borders of public liability. A floodgates argument has been advanced; being that the decision of the High Court opens the way to liability for every Department of State in the casual discussion of the business of those who interact with them, or as the Revenue Commissioners now call them, their customers. That is not so. Every correct analysis begins, as did that of Laffoy J, with the determination of whether a duty of care was owed or not. That question received a negative answer in Beatty. The principle therein stated is of wider application. But, on the analysis by the trial judge, the imposition of liability for negligent information did not extend to the imposition of a duty of care in issuing licences based upon any supposed duty to examine documentation supporting such an application to ensure that advice was spontaneously proffered to the plaintiffs warning them off any anticipated danger; here, that area VIIIa was off limits for scallop fishing except for French vessels.
23. Any such wide imposition of liability would undermine the purpose for which the statutory regime was set up. The duty of the defendant Department, in the context of the statutory and European conservation regime, was owed to the community as a whole. That duty was not one specifically directed towards the protection of those in the fishing industry from error. Regulation of fishing, mandated by European law, is there to ensure that fishing was, and is, regulated in accordance with the statutory scheme, that the vessels licensed were of a kind appropriate to the task proposed and that whatever technical requirements accompanied the licence conformed to the basis upon which a positive permission might be granted. Such administrative duties are for the benefit of the proper regulation of fisheries and for the conservation of wild ocean stocks. There would not be a duty of care towards licence applicants to properly advise them of the areas in which they would be within the supra-national legislation for fishing. Rather, any duty that was owed went the other way. The duty was on the fishermen to carefully, correctly and honestly complete the application. This involved an undertaking by them to only fish within areas designated for the taking of the kinds of catch which they proposed. On this they could get their own advice.
Liability for negligent advice
24. In looking to the claim that the arrest of the vessels by the French Navy would not have taken place but for the assurance immediately given, it has been impossible to identify a statutory basis upon which the Department was charged with that task. Any issue, therefore, as to the law of negligence swamping the appropriate recognised tort of misfeasance in public office does not arise. Nor can it be said that in that particular context any wider duty was owed by the Department which excluded a duty of care to the plaintiff fishermen. Since the test for the imposition of liability for negligence depends on whether it was fair and reasonable in the circumstances to establish a duty of care, it should also be noted that this consideration is key to precedent decisions on negligent misinformation. The law has always taken the view that “[w]ords are more volatile than deeds. They travel fast and far afield. They are used without being expended”; per Lord Pearce in Hedley Byrne v Heller [1964] AC 465 at page 534. There is a difference in law between what is solid and what is ephemeral. A defective ladder may lead to a single accident, a chocolate bar infested with worms will cause all others but the person taking the first putrid bite to shun it, but advice travels through word of mouth or in print much more widely. Indeed, were liability for advice to be imposed on the basis of self-help books or child-rearing manuals, an entirely new and thriving industry in litigation would be opened up. That is not how the law approaches matters.
25. Rather, experience dictates that what is fair and reasonable in the imposition of liability for negligent advice is circumscribed by an analysis of the nature of the reliance placed on the party giving advice by the person claiming harm, the status of the advisor as professional or equivalent or merely casual, the circumstances in which the advice was given and the extent to which the advisor should properly contemplate reliance by that person or by others directly connected by the situation; see the analysis in C Sappideen and P Vines (Eds), Fleming’s Law of Torts, 10th Ed, (Sydney, 2011) from paragraph 8.240. In this way, the flight of ostensibly wise counsel as feathers in the wind is weighted down with the lead of legal experience. In the multitude of decided cases, there are instances where a solicitor fulfilling a contractual duty in drawing up a will, and thus liable to the client in contract, can reasonably be held liable to beneficiaries, who are not privy to the contract but who are cheated by the solicitor’s negligence of an inheritance, of situations where a reference as to honesty turned out to be misplaced and of professional situations such as incorrect legal advice; see Fleming as cited. All of these are principled decisions based on specific facts. Professor Heuston, in the classic 17th edition of Salmond on the Law of Torts (London, 1977) at page 207, proposes that the boundary be set thus:
The solution is to limit liability to cases where the information or advice is given in response to an inquiry for the guidance of the very person in the very transaction in question, or perhaps the very class of whom the plaintiff is known to be one.
26. Mere reliance cannot be enough and nor is the knowledge that the person seeking the advice is likely to rely on it. That is to equate foreseeability of risk with the imposition of a duty of care. Since the primary question is whether there is a duty of care in the particular circumstances, the nature of what information is sought, the party from whom it is sought and the relationship between them are the points of focus. This was a classic case of the voluntary assumption of responsibility by the defendant Department in circumstances where it was likely that fishermen would rely on it. Here, the information sought by the plaintiff was in a situation of peril, that of imminent arrest. The guidance given was particular to that situation. It involved the consultation of documents that reposed within the expertise of the Department. While the relationship between the parties was not a professional one, or, to use the language from some of the older cases, one that would be regarded as equivalent to contract, in the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, this was what is now more commonly referred to as a special relationship giving rise to liability for negligent advice.
27. In the result, the reasoning of the trial judge must be upheld.
Defective advice on a reliable foundation
28. One final matter remains. Traditionally, a defence can be raised in product liability where a product is defective by reason of a particular component, such as the product having been purchased from a reputable supplier. A classic case would be illness caused by mouldy flour where that ingredient in a cake was bought from a universally respected source. Considerations aside from product liability as it now exists, and the incorporation by legislation of terms as to fitness, it was argued on behalf of the Department that the source of the error in this case was within the European Commission; that they had done a bad English translation of the text which the French had correctly. Hence, the absence of the box in the schedule giving fishing rights in the area of arrest for scallops to only French boats in the English language version of the Regulation, was said to appear in the Greek, French, German and Italian versions of the Regulation. That, however, was not demonstrated to the trial judge. On appeal, as found by the trial judge, that version was internal to the Department and that finding is not to be displaced as it fits within her competence as to the finding of primary fact and of inferences therefrom.
Result
29. Consequently, the reasoning and order of the trial judge should be upheld on appeal by this Court. Her calculation of damages also remains undisturbed.
Coras Iompair Eireann v Michael Carroll and Wexford County Council
1982 No. 172
Supreme Court
28 June 1985
[1986] I.L.R.M. 312
(Finlay CJ, Hederman and McCarthy JJ)
28 June 1985
Subject: Negligence
Keywords: Bridge
FINLAY CJ
(Hederman and McCarthy JJ concurring) delivered his judgment on 28 June 1985 saying: This is an appeal brought by the second-named defendant, the Wexford County Council (the County Council) against the decision of Gannon J in the High Court [1983] ILRM 173 whereby he found (1) that both the defendants were negligent, (2) that there was neither negligence nor breach of any statutory duty on the part of the plaintiff and whereby he apportioned the degrees of fault between the defendants: as to the first-named defendant, 90 per cent and to the second-named defendant, 10 per cent. By the same order the learned trial judge adjourned the question of damages.
The plaintiff’s claim was in respect of an accident which occurred on 31 December 1975 when the defendant Michael Carroll, driving a low-loader transporting an excavator whilst passing under a bridge carrying the railway over the road at Cain or Clough near Enniscorthy in the County of Wexford, struck the arch of the bridge with the top of the excavator and in effect, tore open the bridge and made a gap in the railway track. Unfortunately, this impact occurred only minutes before the arrival of a train the driver of which could not be warned, and a major derailment then took place. The plaintiff sued the two defendants, alleging against Michael Carroll negligence and breach of statutory duty in the driving, management, care and control of the tractor, low-loader and excavator and alleging against the County Council nuisance, negligence and breach of statutory duty in and about the maintenance and repair of the surface of the road, and the provision of warnings for traffic using the same.
It was apparently agreed by the parties that the issue of liability should be tried by the learned trial judge sitting without a jury and that the assessment of damages should be postponed until after the determination of that issue.
The appellants, the County Council, appealed both against the finding of negligence against them and of the refusal by the learned trial judge to make a finding of contributory negligence against the plaintiff.
The defendant, Michael Carroll, did not appeal against any part of the order of the High Court and was not represented and did not appear on the hearing of the appeal by the County Council, though he was a party thereto.
The action was heard on oral evidence on 6, 7, 11 and 12 May 1982. Judgment was reserved and the learned trial judge stated the reasons for his decision on 14 June 1982 in a careful and comprehensive judgment. It was agreed by parties represented at the hearing of the appeal that the first issue to be determined was whether there was evidence which would support the finding of the learned trial judge of negligence against the County Council and that in the event of it being found that there was no evidence to support such finding that the question of the contributory negligence of the plaintiff did not arise since the defendant Carroll, had entered no appeal against the order of the High Court.
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The facts
The facts surrounding both the construction of the bridge; the work carried out by the County Council in road surfacing and the happening of the accident itself are set out in full in the judgment in the High Court. Those relevant to the issues raised on this appeal may thus be summarised.
1. The bridge was originally constructed pursuant to the provisions of the Dublin, Wicklow and Wexford (Enniscorthy Extension) Act 1860 which incorporated the Railway Clauses (Consolidation) Act 1845.
2. It crossed a county road and by virtue of the provisions of s. 49 of the 1845 Act by law had to be constructed so as to maintain the minimum clearance of 15 feet. It was in fact constructed with a minimum clearance of just over 15 feet.
3. After the construction of the bridge, successive highway authorities maintained the road underneath it and by an increase in the level of the road surface the minimum clearance gradually decreased. The last increase probably occurred in 1958 or 1959 when road surface dressing was carried out by the County Council, underneath the bridge, adding at that time approximately seven inches to the surface of the roadway.
4. At the time of the accident the minimum clearance on the bridge was 13 feet and 10 inches.
5. The defendant, Michael Carroll, was an agricultural contractor using mechanical excavators and owning a tractor and low-loader, and lived and carried on business about four miles from the bridge.
6. On the morning of the accident he was transporting on his low-loader a mechanical excavator known as an H.44. He had not previous to that day attempted to bring that particular vehicle under the bridge, though he had brought it under other bridges in the neighbouring roads and he had brought under this bridge all of three other mechanical excavators which he owned.
7. He gave evidence that the excavator which he was driving on this occasion looked the same as the others and that he assumed it was the same height.
8. He did not measure the excavator when loaded on to the low-loader and he did not measure the bridge.
9. He further gave evidence that he usually, when bringing a high load under these bridges, looked carefully back and up to make sure it was gaining clearance, but that on this occasion he did not do so as it was raining very heavily.
10. Mr Carroll said that he was travelling at only six miles per hour, but the learned trial judge found that, having regard to the detailed evidence of the extent of damage to the bridge, that he must have been travelling at a significantly greater speed, a finding which was well supported on the evidence.
11. The asctual height of the highest part of the excavator, when loaded on the low-loader, was found after the accident to be 14 feet 8 inches.
12. There was evidence on examination of the bridge, after the accident, that there had been a prior impact, presumably between some vehicle and a girder supporting the bridge, but there was no evidence of any pre-accident damage to the bridge or any pre-accident subsidence of it or of the columns supporting it.
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13. There was no evidence of any knowledge on the part of the County Council of any previous accident to or at the bridge, though it was suggested that some servant of the plaintiff may have been aware of the existence of the mark on the bridge.
14. There was evidence of discussions between the plaintiff, the Ministers for Transport and Environment and the County Council about the necessity, having regard to the nature and height of modern road traffic, of marking the height of bridges carrying the railway over roads and of, in some instances, putting up advance warning signs for them. The project proposed at these discussions was to start with national and primary routes and steps had been taken prior to the happening of the accident to put that in train.
15. There was no evidence that the plaintiff sought, in relation to this bridge, any particular notice or warning sign from the County Council, nor was there evidence, although they were aware of the reduction of the clearance below the bridge from the legal minimum of 15 feet that they made any representation, prior to the accident, to the County Council concerning that fact.
16. In the course of his evidence, when dealing with his experience with this particular excavator prior to the day of the accident and stating that he had driven it under other railway bridges, Mr Carroll said that he thought all these railway bridges were the same height.
17. In the course of the evidence an engineer employed by the plaintiff stated, when asked about this particular bridge, and as to whether it represented a special danger or hazard, that it was the last bridge at which he would have expected an accident.
Findings of negligence against the County Council
The learned trial judge summarised the reasons for his finding of negligence against the County Council as follows:
At all events the reduction in the clearance between the bridge and the road surface was caused by the second defendants in the performance of their statutory responsibilities for road maintenance but, as the evidence showed, without having had any particular regard for the nature of traffic which might use this road. They were undoubtedly well informed of the development of traffic patterns on their major roads and primary routes which made necessary the consideration of suitable clearances under over-road bridges and the giving of advance warning of clearances to traffic using such roads. Although the driver undertaking a journey with a high load should plan his route and acquaint himself of clearance difficulties which he might encounter I do not think the second defendant may assume that all such drivers will do so, or that such drivers will drive only on major roads and primary routes. Although not under statutory obligation to maintain the 15 foot clearance under the bridge, by reducing the clearance the second defendants increased the risk of damage to the plaintiffs’ bridge from traffic using their road. This was a risk which they could and should have foreseen in the course of the normal discharge of their functions as a road authority conversant with the development of traffic. Their failure to provide advance warning, having themselves reduced the clearance, was a breach of duty which contributed in some measure to creating the circumstances of the risk of damage of which the plaintiffs complain [1983] ILRM 184.
Although it is possible to construe this portion of the judgment as indicating a finding only against the County Council of negligence by failure to provide advance warning signs, other portions of the judgment make it, I am satisfied, *316 clear that the learned trial judge was finding negligence against them both on the basis of a failure to provide the signs and on the basis of the reduction of the clearance. To some extent his finding with regard to the failure to provide signs may have been influenced by a conclusion stated by him where he stated as follows:
As the statutory duties and functions of the second defendant were not opened or discussed in argument I do not propose to refer to them other than to recall that it was accepted throughout the hearing and the evidence was that the nature and situation of the bridge was such as to require some form of advance warning to road users of the limited clearance and that the second defendants had the responsibility of giving such warning (at p. 182).
Counsel for the parties represented before this Court stated that they were satisfied that no agreement as to that fact was submitted before the learned trial judge and I am satisfied on consideration of the transcript that there was no evidence of any acceptance either by the plaintiff or by the County Council of the necessity for advance warning signs at this particular bridge. To some extent this misapprehension of the attitude of the parties which is understandable in what was a long and complicated case may have contributed to the finding of negligence in failing to provide advance warning signs made by the learned trial judge.
Having regard to the fact that the defendant Michael Carroll who caused the accident by colliding with the bridge, lived only four miles away from it and regularly drove high vehicles underneath it; having regard to the fact that he drove on this occasion entirely on the assumption that his load was no higher than the loads previously brought beneath the bridge by him, an assumption which was clearly proved in the event to be false, and having regard to his admitted ignorance of the height of the load which he was driving on this occasion, I am satisfied that there was no evidence upon which it was possible to reach a conclusion that the absence of warning signs either of the fact that it was a low bridge or of the fact that its minimum clearance was 13 feet 10 inches, contributed to the happening of this accident. I am, therefore, satisfied that in so far as the finding by the learned trial judge of negligence against the County Council constituted a finding arising from their failure to erect advance warning signs it is not a finding which can be upheld.
With regard to the finding of negligence by decreasing the clearance to 13 feet 10 inches the position appears to me to be as follows. The fact that this decrease brought the minimum clearance below the statutory limit provided in the Act of 1845 would only be material if there was evidence that drivers and users of the road were aware of the requirement that a railway bridge over a county road required, in ordinary circumstances, and apart from special provisions of the special Act, a minimum clearance of 15 feet and relied upon that fact in approaching such bridges with a high load. It is probable, though it is not necessary to decide the matter, that the evidence would really require to be not a general knowledge or impression of users of the road but knowledge on the part of Mr Carroll involved in the actual accident. There was no evidence either in general or in particular of any reliance placed by users of the road on any *317 knowledge of the minimum clearance provided by the Act of 1845 in respect of railway bridges over county roads.
The remaining issue, therefore, is as to whether to create or leave a situation as the County Council did, in which a railway bridge over a County road had a minimum clearance of 13 feet 10 inches only, was, as of 1975, an act wanting reasonable care.
To establish that proposition it seems to me that evidence of some or possibly several of the following matters would have had to be adduced. They are:
(1) Evidence of prior accidents or incidents involving ordinary high loads under this bridge or under another or other bridges measuring only 13 feet 10 inches.
(2) Evidence of a particular usual type of high load to be anticipated, using County roads, which would clear a bridge with a minimum clearance of 15 feet and would impact a bridge with a minimum clearance of 13 feet 10 inches only.
(3) Evidence that this was, in a sense, a uniquely low bridge and was significantly lower than bridges of a similar nature covering other county roads.
No evidence on these topics was adduced by the plaintiff and in fact evidence was given which was not contradicted, that over not only county roads but, more importantly, graded roads, there were throughout the country a significant number of railway bridges measuring less than 13 feet 10 inches in height. Furthermore the concession made by an engineer on behalf of the plaintiff that this was the last bridge at which he would have expected an accident, is inconsistent with an imputed knowledge on the part of the servants of the County Council that an accident at this bridge was a foreseeable risk if they reduced the clearance under it from 15 feet to 13 feet 10 inches.
I have carefully considered as to whether the evidence given in a somewhat unsatisfactory and brief way by the defendant Carroll that he had driven this particular excavator under other railway bridges on adjoining roads and that he thought all these bridges were of the same height, constituted evidence that the reduction of the bridge from 15 feet to 13 feet 10 inches constituted a trap for him. It seems to me, however, that in the absence of evidence which was not adduced, that the other bridges to which he referred were of a clearance of 15 feet only and that the difference between that and the 13 feet 10 inches was the cause of his mistake, that such evidence could not support a finding of negligence against the County Council. On the state of the evidence it could be that the other bridges to which he was referring were significantly greater than 15 feet in height and that, accordingly, his idea of thought that all bridges were of the same height did not, by reason of the County Council’s activity, constitute a contributory cause to the accident. Evidence of the general height of bridges on various roads throughout the country would indicate that such a belief was quite unwarranted.
In these circumstances I have come to the conclusion that there was not evidence to support the finding of negligence against the Wexford County Council.
Notwithstanding a careful argument submitted by both parties to this Court *318 on the alternative and consequential issue which would arise if the County Council were guilty of negligence, namely, the statutory duty and right of the plaintiff to maintain this bridge, to maintain the clearance under it and, possibly, to maintain the road surface under it, and notwithstanding careful findings by the learned trial judge on these issues, I am satisfied that it would not be appropriate for this Court to express a decision on that issue when it clearly does not, having regard to the primary view which I take, arise for determination in the case. I would, therefore, allow the appeal and vary the order of the High Court so as to dismiss the plaintiff’s claim against the County Council.
Notwithstanding the fact that the defendant Carroll was not an appellant and notwithstanding the fact that although properly and necessarily served with the County Council’s notice of appeal, he did not appear before this Court, it seems necessary as well that the order of the High Court should be varied by excluding from it the findings of proportion of fault between the two defendants which only arise in the event of both having been found negligent. The order of the High Court should, therefore, be varied to a simple finding of negligence against the defendant Carroll.
Joseph Muldoon v Ireland and the Attorney General
High Court
27 May 1987
[1988] I.L.R.M. 367
(ex tempore) (Hamilton P)
27 May 1987
S
HAMILTON P
delivered his ruling on 27 May 1987 saying: The standard of care required of the prison authorities in this case is to take all reasonable steps and reasonable care not to expose any of the prisoners to a risk of damage or injury. The law does not require them to guarantee that an incident like this could not occur or to guarantee that prisoners do not suffer injury during the course of their imprisonment. But the law requires the defendants, in this case Ireland and the Attorney General, to take reasonable care, and the two allegations made against the prison authorities in this case are: (1) that they did not have enough staff on duty in the recreation yard to exercise proper supervision; and (2) that they were wanting in care in permitting a prisoner to get on to the recreation yard with some sharp instrument, be it a blade or knife or some other instrument of that kind.
It is quite clear that the incident happened suddenly, was unprovoked and there was no prior warning, so that even if there were 50 prison officers in the recreation yard on the occasion in question, this incident could not have been prevented. Consequently, I will hold that the prison authorities were not negligent in not having enough prison officers in the yard to effect reasonable supervision and reasonable control.
That leaves then the other question of the instrument in the possession of a prisoner. The plaintiff was attacked from behind and had no opportunity of seeing what instrument was used, and he suggested either a knife that was taken from the kitchens or workshops in the prison, or a blade such as has been described by Mr Scannell the chief officer.
The onus, as I say, on the prison authorities is to take reasonable care. They cannot guarantee, and cannot be expected to guarantee, than an incident like this cannot occur. The only way such an incident could be prevented is by searching every prisoner every time he moves from one area to another. We have evidence from Mr Scannell about the searches that are conducted, and the care that is taken to prevent prisoners from having in their possession weapons or instruments that could be used for offensive purposes. It is realistic, in spite of all these steps, that occasionally an incident like this can happen, but I cannot see what more could have been done by the authorities by way of searching. More and more frequent searches would undoubtedly be regarded as excessive and could be argued to amount to inflicting harrassment on the prisoners.
I think in all the circumstances that, as a matter of law, it would not be open to the jury to find that the authorities were in any way negligent on *370 this occasion, and I take the responsibility of withdrawing the case from the jury. Consequently, the plaintiff’s claim is dismissed.
Monica McMahon, Otherwise Paschal
McMahon v Ireland, The Attorney General and The Registrar of Friendly Societies
1987 No 191 SS
High Court
4 November 1987
[1988] I.L.R.M. 610
(Blayney J)
4 November 1987
BLAYNEY J
delivered his judgment on 4 November 1987 saying: The facts of this appeal by way of case stated are as follows.
The plaintiff, who is a member of a religious order, on 19 October 1983, deposited with the Private Motorists Protection Society (hereinafter referred to as P.M.P.S.) the sum of £400, the proceeds of a bring-and-buy sale organised to raise money for the charitable work of her order.
On the same day, 19 October 1983, the Insurance (No. 2) Act 1983 was passed, under which an administrator was appointed to manage the Private Motorists Protection Assocation Insurance Company Ltd. The plaintiff sought to withdraw the £400 from the P.M.P.S. on the following day but her request was refused. Part of the £400 lodged had been in the form of a cheque for £100; the plaintiff was able to have this cheque stopped, thus reducing the amount deposited to £300. The P.M.P.S. was put into liquidation on 19 December 1983 and the plaintiff received a dividend of £92.88 in the winding up, so the actual amount she lost as a result of making the deposit was £207.12. On 27 January 1986 she instituted these proceedings against the defendants claiming damages for negligence, breach of duty and breach of statutory duty.
The action was four days at hearing and judgment was reserved. In a very careful and thorough judgment delivered on 8 October 1986 the learned District Justice dismissed the claim but on the application of the plaintiff stated a case for the opinion of this Court.
Four separate questions are set out at the end of the case:
(a) Was I correct in dismissing the action on the grounds set out in the said judgment?
(b) Was I correct in holding that there was no mandatory duty imposed on the Minister for Industry and Commerce to appoint a full-time Registrar of Friendly Societies following the passing of the Industrial and Provident Societies (Amendment) Act 1978?
(c) Was I correct in holding that there was insufficient proximity of relationship between the plaintiff and the Minister for Industry and Commerce for a duty of care and negligence to arise?
(d) Was I correct in dismissing the said proceedings notwithstanding the circumstances of the plaintiff as a member of the general public who would not have the commercial awareness of banking institutions in relation to making deposits?
The last three questions raise issues which are subsidiary to the main issue which was contained in the first question, and I propose initially to confine my attention to that.
*612
Two separate causes of action were relied upon before the learned District Justice—negligence and breach of statutory duty—but the latter was abandoned in the argument before me. Mr O’Reilly BL, appearing for the plaintiff, conceded that he would not rely on it in view of the decision of the Supreme Court in Pine Valley Developments Ltd v The Minister for the Environment [1987] ILRM 747. The only case I have to consider accordingly is whether the learned District Justice was correct in dismissing the plaintiff’s claim insofar as it was based on negligence.
The first and second defendants, Ireland and the Attorney General, are sued as being the parties responsible for the acts of the Minister for Industry, Trade, Commerce and Tourism and the Minister for Finance who are the real defendants. I shall refer to the former as ‘The Minister’, and the latter by his full title ‘The Minister for Finance’.
Mr O’Reilly’s submissions on his case against the two Ministers might be summarized as follows. S. 7(4) of the Central Bank Act 1971 exempted industrial and provident societies from the prohibition in subsection (1) of the same section against carrying on banking business without holding a banking licence. This exemption enabled industrial and provident societies to take deposits and so in effect to carry on a banking business without being under the control of the Central Bank. The P.M.P.S. took advantage of this exemption and became one of the largest of the industrial provident societies carrying on this type of business, holding approximately fifty per cent of all the moneys then on deposit with such societies. Reports prepared by the Central Bank at the request of the Department of Industry and Commerce, in August 1976 and April and May 1978, showed that these societies were not carrying on their business in accordance with good banking practice. They were undercapitalized, had very low liquidity levels and their profitability was poor. There was also a doubt about the solvency of the P.M.P.S as, while it appeared from its balance sheet to be solvent, little or no allowance was made by way of provision for bad debts. The Minister for Finance had a duty to remedy this situation. It was his delay in taking any action which was the cause of the plaintiff’s loss. And it was the delay of the Minister in appointing a full-time Registrar of Friendly Societies after the Industrial and Provident Societies (Amendment) Act 1978 (the 1978 Act) had been passed that also contributed to it. While the Act was passed on 15 November 1978 a full-time Registrar was not appointed until 1980. Action should have been taken earlier by the Minister.
In my opinion when this submission is examined it does not disclose any case against either Minister. Neither was responsible for the initial exemption of which the plaintiff complains. It was contained in a statute enacted by the Oireachtas. And it could not be contended that either Minister owed the plaintiff a duty of care to have the Central Bank Act amended so as to prevent industrial provident societies from taking deposits. Even if it could be, the situation was remedied by the 1978 Act which provided by s. 5(2) that a Society should not accept or hold deposits after a period of five years *613 commencing at the passing of the Act, and which gave immediate wide powers to the Registrar of Friendly Societies to investigate and control industrial and provident societies, including the power to direct a society to suspend the taking of deposits for a period not exceeding two months. Once a full-time Registrar had been appointed by the Minister in 1980, I consider that it could not be argued that the Minister had any duty of care towards persons depositing moneys with industrial and provident societies. The legislature had entrusted the supervision of such societies to the Registrar of Friendly Societies, so that when the Minister had appointed a full time Registrar he ceased to have any function in the matter. So, irrespective of whether either Minister ever owed any duty of care to the plaintiff, I am satisfied that her loss could not be attributed to any act or omission on their part.
I now consider the claim against the Registrar. The case made by the plaintiff is that a duty of care was owed by the Registrar to her as a prospective depositor with the P.M.P.S., and that he failed in his duty by not taking action sooner against the Society. If he had taken action, as he might have done by exercising his power under s. 16 of the 1978 Act to give a direction to suspend the acceptance of deposits, the plaintiff’s loss would have been avoided.
It seems to me that the first issue that has to be considered is whether the Registrar owed any duty of care to the plaintiff as, in the absence of such a duty, he could not have any liability in negligence. And this involves considering whether there was a sufficient relationship of proximity or neighbourhood between the Registrar and prospective depositors as to place the Registrar under a duty of care towards persons who came within that class, as did the plaintiff. It is clear that there was nothing the Registrar could have done to save the plaintiff from loss after she had deposited the money. So the inquiry is limited to the question of whether the Registrar owed her a duty when she was still a prospective or would-be depositor.
An issue very similar to this arose in a recent case decided by the Privy Council: Yuen Kun Yeu and Others v Attorney General of Hong Kong [1987] 3 WLR 776. The plaintiffs were four residents of Hong Kong who between August and December 1982 made substantial deposits with a registered deposit-taking company called America and Panama Finance Company Ltd. The company went into liquidation on 25 February 1983 and as a result the plaintiffs sued the Attorney General as representing the commissioner of deposit-taking companies. The claim was for damages for negligence in the discharge of the Commissioner’s functions under a deposit-taking Companies Ordinance enacted in 1976. Under s. 10 of that ordinance, the commissioner, who had the duty of registering companies as registered deposit-taking companies on receipt of an application in accordance with s. 9, was obliged to refuse to register a company if it appeared to him ‘that by reason of any circumstances whatsoever the company is not a fit and proper body to be registered’. And under s. 14 the commissioner *614 had power to revoke the registration of any company if it appeared to him ‘that the company is not a fit and proper body to be registered’.
The allegations against the commissioner were that he knew or ought to have known that the affairs of the company were being conducted fraudulently; speculatively and to the detriment of its depositors; that he failed to exercise his powers under the Ordinance so as to secure that the company complied with the obligations and restrictions thereby imposed upon it; and that he should either never have registered the company as a deposit-taking company or should have revoked its registration before the plaintiffs made their respective deposits with it.
On the application of the Attorney General, the High Court in Hong Kong made an order striking out the statement of claim as disclosing no reasonable cause of action. Its decision was affirmed by the Court of Appeal in Hong Kong, and on appeal from that court, by the Privy Council. The judgment of the Privy Council was delivered by Lord Keith of Kinkel. Having summarized the powers and functions of the Commissioner, which are very similar to those of the Registrar under Part II of the 1978 Act, he defined at page 781G the question which arose for consideration in the case:
The foremost question of principle is whether in the present case the commissioner owed to members of the public who might be minded to deposit their money with deposit-taking companies in Hong Kong a duty, in the discharge of his supervisory powers under the Ordinance, to exercise reasonable care to see that such members of the public did not suffer loss through the affairs of such companies being carried on by their managers in fraudulent or improvident fashion. That question is one of law, which is capable of being answered upon the averments assumed to be true, contained in the plaintiffs’ pleadings. If it is answered in the negative, the plaintiffs have no reasonable cause of action, and their statement of claim was rightly struck out.
He then went on to consider the authorities, starting with Donoghue v Stevenson [1932] AC 562 and in the light of them he came to the following conclusion as to the relevant issue in the case:
The primary and all-important matter for consideration, then, is whether in all the circumstances of this case there existed between the commissioner and would-be depositors with the company such close and direct relations as to place the commissioner, in the exercise of his functions under the Ordinance, under a duty of care towards would-be depositors. (at p. 785)
In my opinion precisely the same question is the primary matter for consideration here—whether in all the circumstances of this case there existed between the Registrar and would-be depositors with the P.M.P.S. such close and direct relations as to place the Registrar, in the exercise of his functions under Part II of the 1978 Act, under a duty of care towards such depositors.
Lord Keith then referred to what the court considered to be the relevant circumstances of the case. These were:
*615
(1) One of the purposes of the ordinance was to make provision for the protection of persons who deposit money; such protection was in part afforded by the restrictions and obligations placed on registered companies for the breach of which there were criminal sanctions, but the discretion given to the commissioner to register or deregister a company was also an important part of the protection.
(2) Would-be depositors were not the only persons the Commissioner should properly have in contemplation; in considering the question of removal from the Register, the immediate and probably disastrous effect on existing depositors would be a very relevant factor.
(3) The power to refuse or revoke registration was semi-judicial in character, there being an appeal from the Commissioner’s decision to the Governor in Council.
(4) The Commissioner did not have power to control the day-to-day management of the company; his power was limited to putting it out of business or allowing it to continue.
Lord Keith then went on:
In these circumstances their Lordships are unable to discern any intention on the part of the legislature that in considering whether to register or deregister a company the commissioner should owe any statutory duty to potential depositors. It would be strange that a common law duty of care should be superimposed upon such a statutory framework. (at p. 786E)
What the court was considering there was the commissioner’s possible statutory duty or common law duty of care to potential depositors in the light of all the circumstances but in particular in the light of the commissioner’s discretionary power to register or deregister a company, and it held that he had no such duty. It seems to me that it must follow that in the present case the Registrar had no such duty either because while his position was little different from that of the commissioner in respect of the other circumstances, namely, having to have other persons in his contemplation when considering the exercise of his powers and in not being able to control the day-to-day management of the societies, since basically all he could do was give directions in writing for the regulation of their business (Section 10 of the 1978 Act) his powers ultimately were less than those of the Commissioner since he could not remove a society from the Register. Mr O’Reilly BL submitted that Yuen Kun Yeu and Others v Attorney General Of Hong Kong was distinguishable on the grounds that the powers given to the Registrar would appear to go further than the powers of the commissioner. It seems to me that the opposite is the case: that the commissioner ultimately had greater power in that he was entitled to remove a company from the Register, a power that the Registrar does not possess. In my opinion the case is not distinguishable in any respect which would convince me that it should not be followed. If the Commissioner, who had greater powers over the registered companies than the Registrar has, had no duty of care to would-be depositors, I consider that the Registrar could not have had any such duty either.
*616
Lord Keith then went on to consider whether the Commissioner could have had any duty of care towards would-be depositors on foot of the principle in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, i.e., on the basis that the Commissioner had control of the registered companies and so could be made liable for losses caused by them. It was held that the principle did not apply. Lord Keith said:
In contradistinction to the position in the Dorset Yacht case, the commissioner had no power to control the day-to-day activities of those who caused the loss and damage. As has been mentioned, the commissioner had power only to stop the company carrying on business, and the decision whether or not to do so was clearly well within the discretionary sphere of his functions. In their Lordships’ opinion the circumstances that the commissioner had, on the plaintiffs’ averments, cogent reason to suspect that the company’s business was being carried on fraudulently and improvidently did not create a special relationship between the commissioner and the company of the nature described in the authorities. They are also of opinion that no special relationship existed between the commissioner and those unascertained members of the public who might in future become exposed to the risk of financial loss through depositing money with the company. Accordingly their Lordships do not consider that the commissioner owed to the plaintiffs any duty of care on the principle which formed the ratio of the Dorset Yacht case. To hark back to Lord Atkin’s words in Donoghue v Stevenson [1932] AC 562, 581, there were not such close and direct relations between the commissioner and the plaintiffs as to give rise to the duty of care desiderated. (at p. 787B)
Being satisfied that the Privy Council case is not distinguishable in any significant respect from the present case, I propose to follow the decision reached there and accordingly I hold that in the circumstances of this case there was not such close and direct relations between the Registrar and the plaintiff as to give rise to any duty of care on the part of the Registrar towards the plaintiff.
I consider that there is a further ground also upon which the decision of the learned District Justice to dismiss the action may be supported but as the conclusion I have reached on the negligent issue disposes of the case I do not propose to consider it at length. In my opinion the following passage from the judgment of Moulton LJ in Everitt v Griffiths [1921] 1 AC 631, which was cited with approval by Finlay CJ in Pine Valley Developments Ltd v The Minister for the Environment [1987] ILRM 747 is applicable to the position of the Registrar:
If a man is required in the discharge of a public duty to make a decision which affects, by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of his duty to the public, and then to leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision.
The Registrar’s honesty and good faith have not been and could not be, questioned and accordingly in exercising his functions under Part II of the 1978 Act he was entitled to the protection of the principle referred to in *617 this passage. It follows that he is entitled to immunity from the type of claim being made by the plaintiff.
I would therefore answer the first question by saying that the learned District Justice was correct in dismissing the plaintiff’s claim on the grounds set out in his judgment. As this disposes of the case, it is not necessary to answer the other subsidiary questions and I do not propose to do so.
Barlow v Minister for Communications, Marine and Natural Resources,
Paul Barlow, Woodstown Bay Shellfish Limited, Michael Crowley, Riverbank Mussels Limited, Gerard Kelly, Fresco Seafoods Limited, Tardrum Fisheries Limited, Alex McCarthy and Halcome Merchants (Ireland) Limited Trading as Alex McCarthy Shellfish v Minister for Communications, Marine and Natural Resources, Registrar General of Fishing Boats, Ireland and Attorney General
2006 2687 P (WLIE 1)
High Court
22 March 2019
unreported
[2019] IEHC 416/1
Mr. Justice Meenan
March 22, 2019
JUDGMENT
Introduction
1. The individual plaintiffs and their associated companies were involved in fishing, harvesting and sale of mussels. In these proceedings the plaintiffs are seeking compensation for financial losses which they allege was caused or contributed to by the defendants. The plaintiffs’ claims arise under a number of headings. These headings are breach of constitutional duty/rights; negligence and breach of duty (including negligent misstatement); breach of legitimate expectation; breach of statutory duty and unlawful delegation. The plaintiffs further seek to rely upon a breach of the provisions of the European Convention on Human Rights (ECHR) and refer to a recent decision of the European Court of Human Rights (ECtHR) in O’Sullivan McCarthy Mussel Development Limited v. Ireland (App No. 44460/16).
2. These proceedings commenced in 2006, some thirteen years ago. There have been a number of earlier hearings, in particular, a decision of the Supreme Court, dated 27 October 2016, in related proceedings (Barlow v Minister for Agriculture, Food and the Marine [2017] 2 IR 440) (the Barlow II proceedings). The statement of claim, first delivered on 10 July 2006, has undergone numerous amendments and the final amended statement of claim was delivered on 6 October 2017. The claims being made by the plaintiffs have evolved and developed over a long period of time.
Mussel fishing
3. There are only certain times of the year when the plaintiffs fish for mussel seed. Mussel fishing is not fishing in the normal sense in that what is involved is a dredging type operation whereby quantities of mussel seed are retrieved from the sea by vessels specifically designed for that purpose. Once retrieved, the mussel seed is transported to aquaculture sites where it is re-laid. Over a period of time the mussel seed matures into fully grown mussels which are then harvested and sold for commercial gain. The mussel industry is regulated by domestic legislation. These Regulations unsurprisingly cover a wide range of areas, for example the type of vessels that can be used, the locations that can be fished for mussel seed and, importantly for the instant proceedings, the amount of mussel seed that can be fished for.
4. Central to the Barlow II proceedings was the “Voisinage Agreement” of 1965, set out correspondence between officials in the Ministry of Agriculture in Belfast and the Department of Agriculture and Fisheries in Dublin. This agreement provided for cross-border cooperation in the area of fisheries. The practical effect of this was that vessels registered in Northern Ireland were permitted to fish for mussel seed in the State’s territorial waters (the territorial waters). The Voisinage Agreement proved to be very contentious.
5. In the Barlow II proceedings the legality of Northern Ireland registered vessels fishing in territorial waters was successfully challenged by the plaintiffs. In giving the judgment of Supreme Court, O’Donnell J. stated at p. 445:
“[3] At first sight, the issues for resolution in this case are of much more recent origin. For the last 50 years and, it seems likely, since the foundation of the State, fishermen resident in Northern Ireland have fished waters which, from time to time, have been designated as the territorial waters of the State. This fishing has been carried out with the knowledge and approval of the authorities here and, it appears, in circumstances where reciprocal facilities were afforded to Irish fishermen in the waters adjoining the coastal area of Northern Ireland. This case raises the question of the legality of the practice of what may be described in general terms at this stage, as Northern Ireland fishermen fishing in Irish territorial waters. This question arises in the context of mussel harvesting, which for a number of reasons has become much more commercially significant in recent times. For reasons which it will be necessary to set out at some length, I have concluded that the current practice of fishing or harvesting of mussel seed by Northern Ireland registered boats in the territorial waters of this State is not lawful, as it constitutes the exploitation of a natural resource which must by Article 10 of the Constitution be provided for by a law enacted by the Oireachtas. I conclude that there is no such law at present. It follows from this conclusion however that there is no insuperable constitutional objection to making provision by law for such fishing. This is the narrow conclusion of the large issue in this case.”
6. Article 10 of the Constitution provides:
“All natural resources, including the air and all forms of potential energy, within the jurisdiction of the Parliament and Government established by this Constitution and all royalties and franchises within that jurisdiction belong to the State subject to all estates and interests therein for the time being lawfully vested in any person or body.”
7. Therefore, two matters arise from the decision of the Supreme Court. Firstly, mussel seed, being a natural resource, is the property of the State. Secondly, in the absence of law enacted by the Oireachtas, fishing for mussel seed by Northern Ireland registered vessels in the territorial waters is not lawful.
8. For many years the mussel industry was undeveloped with those involved using methods and vessels that had not changed for generations. However, this was all to change in the latter years of the 1990s when the economic potential of mussel harvesting became apparent. This resulted in new vessels being purchased with mussel seed being fished and harvested at an industrial level. At the same time vessels registered in Northern Ireland were fishing for mussel seed in the territorial waters. This, together with allegations of the mismanagement of the mussel seed resource and the allocations of mussel seed, is central to the plaintiffs’ claim.
The plaintiffs
9. Each of the individual plaintiffs gave evidence before the Court. Though the particular situation of each of the plaintiffs differed there are a number of matters common to all of them. Each of the plaintiffs recognised mussel seed as being an untapped resource with enormous commercial potential. Each of the plaintiffs invested in their own businesses by building and operating new and modern vessels, the older vessels had limited capacity and not purpose built for the task. This required the plaintiffs to obtain grants and loans and thereby incur financial liabilities. The plaintiffs were encouraged in their efforts by the defendant State agencies, in particular Bord Iascaigh Mhara (BIM). All this was reflected in the National Development Plan. Initially there were no significant problems, however, in or about the middle of the first decade of this century it became clear that commercial gains were not going to be achieved and the plaintiffs thereby incurred financial loss. These losses were attributed to the mismanagement of the mussel seed resource by the first named defendant’s allocations and, importantly, to fishing vessels registered in Northern Ireland being given access to mussel seed in the territorial waters to the detriment of the plaintiffs.
10. The first named plaintiff, Mr. Paul Barlow, has been working in the fishing industry for most of his life. He established the second named defendant, Woodstown Bay Shellfish Limited, a company which is also involved in the harvesting of oysters. In the mid-1990s the first named plaintiff became involved in the mussel industry. He entered the industry by securing a lease from the Duke of Devonshire who held a private foreshore that had a fishery located in Youghal, County Cork which consisted of 440 hectares of mussel or oyster and fishing grounds.
11. Subsequently, the first named plaintiff signed a contract with a Dutch company to construct a new vessel, the “Creadan Lady”, at a cost of some €3.45million. This sum was obtained by grant aid and personal borrowings secured on his family home and business. The “Creadan Lady” was the first vessel purposely built for mussel fishing in Ireland and was delivered in November 2004. In order for his business to be viable an allocation of some 3,000 to 4,000 tonnes of mussel seed was required.
12. Initially the first named plaintiff made his application for an allocation to the Seed Mussel Advisory Committee (SMAC). Upon becoming aware of the involvement of officials from Northern Ireland in SMAC, the first named plaintiff applied directly to the first named defendant for allocations of mussel seed.
13. The first named plaintiff was given allocations which he submitted fell well below what was required to make his mussel business viable. Subsequently, the “Creadan Lady” was sold to a Dutch operator and the monies received were paid in discharge of debts owed to the bank.
14. The third named plaintiff, Mr. Michael Crowley, began mussel fishing in 1999. He is the General Manager of Riverbank Mussels Limited, the fourth named defendant. The fourth named plaintiff started trading in Ireland in 2003 by acquiring a vessel and a number of aquaculture sites for the relaying of mussel seed. The third and fourth named defendants made applications for allocations for mussel seed to SMAC but subsequently applied directly to the first named defendant. The third named plaintiff, and through him the fourth named plaintiff, claimed that the allocations they received were less than what was required and that they, like the other plaintiffs, had been lead to believe that they would be given allocations of mussel seed which would make their businesses viable.
15. The fifth named plaintiff, Mr. Gerard Kelly, is a lifelong fisherman and moved into mussel fishing in 1997. He is involved with the sixth and seventh named plaintiffs, Fresco Seafoods Limited and Tardrum Fisheries Limited.
16. In 1998 the fifth named plaintiff bought a vessel. To finance this he sold his family home where he lived with his young family. Subsequently he bought a purpose built vessel called the “Joanna Elida” which was approximately 20 years old at the time. This vessel was purchased from personal funds and was neither the subject of a loan or a grant. In 2003 the fifth named plaintiff applied to BIM for grant aid to finance a new vessel he named the “Deirdre K”. This vessel arrived in July 2005.
17. In common with the other plaintiffs, the fifth named plaintiff applied directly to the first named defendant for an allocation of mussel seed. Again, like the other plaintiffs, the fifth named plaintiff claims that the allocations given fell below that which was required to keep his business viable.
18. The eighth named plaintiff, Mr. Alex McCarthy, is the Managing Director and principal shareholder of the ninth named plaintiff. The eighth named plaintiff is a qualified civil engineer and while involved in a project at Aughanish Alumina in County Limerick developed an interest in the mussel industry. In 1983/84 he obtained a licence from Aughanish Alumina to move mussel seed which had attached itself to a pier to an aquaculture site which was further down the River Shannon.
19. The eighth named plaintiff developed his business by arranging to supply mussels to the UK market, in particular by supplying ready-made meals for Marks and Spencer. The plaintiff’s business developed and he acquired aquaculture sites in Carlingford Lough and Wexford Harbour. In common with the other plaintiffs, the eighth named plaintiff had a purpose built vessel constructed in Holland, the “Cornelius Geritt”. In 2003 an application was submitted to BIM for a grant to build a new mussel dredger. This new vessel, the “Wings of the Morning”, was delivered in April 2005. In addition to the grant aid, purchase of this vessel was funded from borrowings from a bank.
20. The eighth named plaintiff applied directly to the first named defendant for an allocation of mussel seed thereby bypassing SMAC for the same reasons as those of the other plaintiffs, namely, the involvement of officials from agencies in Northern Ireland. The eighth named plaintiff also complained that the allocations given were less than what was required to make his business viable. This, he claimed, resulted in serious financial loss both for himself personally and for his company, the ninth named plaintiff.
21. It can be seen from the foregoing paragraphs that the plaintiffs have a number of matters in common. Each of them recognised the enormous commercial potential of the mussel industry. This required investment in new vessels and aquaculture sites for the relaying of mussel seed. In doing so each of the plaintiffs incurred significant financial liabilities which, unfortunately, resulted in financial losses.
22. Each of the plaintiffs gave evidence of the difficulties which they said they encountered in obtaining an allocation of mussel seed sufficient to make their businesses viable. The plaintiffs were especially critical of vessels registered in Northern Ireland fishing in the territorial waters and also the “aggressive” fishing practices adopted by them. This, the plaintiffs’ claim, resulted in over fishing of the available mussel seed with dire consequences for the industry. In response to this a number of the plaintiffs took part in “protest fishing” in the waters of Northern Ireland. They claim that this highlighted another aspect of unfairness with the arrangements under the Voisiange Agreement in that vessels registered in this State could not fish in the waters of Northern Ireland.
Regulations
23. The mussel industry is subject to a number of Regulations. For the purposes of this action following are the relevant Regulations:
(i) The Sea Fisheries and Maritime Jurisdiction Act 2006 (the Act of 2006) provides:
10.—(1) A person on board a foreign sea-fishing boat shall not fish or attempt to fish while the boat is within the exclusive fishery limits unless he or she is authorised by law to do so.
13.—(1) The Minister may, for the proper and effective management and conservation and rational exploitation of fishing opportunities and fishing effort for Irish sea-fishing boats under the common fisheries policy, at his or her discretion—
(a) …
(b) …
grant to the person an authorisation (“authorisation”) in respect of the boat, authorising, subject to this section, the utilisation of the boat’s fishing effort for the capture and retention on board of a specified fish stock (“stock”)…”
(ii) The Molluscan Shellfish (Conservation of Stocks) Order 1987 (S.I. No. 118 of 1987) provides:
“4. A specified vessel or a person on board a specified vessel shall not, except under and in accordance with a license under this Order engage in dredging for, fishing for or taking molluscan shellfish within the exclusive fishery limits of the State…”
“6. The master of a specified vessel shall not, except under and in accordance with a licence under this Order, cause or permit the boat to be used within the exclusive fishery limits of the State for the transhipment of molluscan shellfish from a specified vessel.”
(iii) The Mussel Seed (Conservation and Rational Exploitation) Order 2003 (S.I. No. 241 of 2003) provides:
“5.(1) The Minister may, subject to the provisions of this Article, issue a mussel seed licence authorising, during such period as may be specified in the licence, any or all of the following activities:
(a) the fishing for mussel seed from a specified vessel in the specified area or such part thereof as may be identified in the licence, and
(b) the landing or transhipment of mussel seed taken in the specified area or such part thereof as may be identified in the licence.
(2) An application for a mussel seed licence shall be in such form as may be specified by the Minister.
…
(8) In considering an application for a licence under this Order the Minister shall have regard to such matters as appear likely to him or her to assist in the rational exploitation of mussel seed in the specified area or any part of that area, including —
(a) the experience of the applicant in relation to mussel seed fishing,
(b) the proportion of permitted tonnages licensed to the applicant previously which was harvested,
(c) the distance from the harvesting zone to the area where the mussel seed are to be relayed…”
(iv) The Mussel Seed (Fishing) Regulations 2006 (S.I. No. 311 of 2006) provides:
“6. The master of an authorised boat shall keep a record of the transplantation on to a place or waters specified in an aquaculture licence of mussel seed fished under an authorisation, which shall include the following information:
(a) …
(b) the amount of mussel seed so transplanted…”
Proceedings
24. These proceedings were commenced in June 2006 and the statement of claim has been amended on three separate occasions. Initially, the objection to the Voisinage Agreement was that there was a failure to enforce it on a reciprocal basis rather than that it was unlawfully operated. The statement of claim which concerns the action before this Court was delivered in October 2017. I can see little merit in detailing how various claims were developed or were not proceeded with over the years. I propose instead to concentrate on the claim as it is formulated in the statement of claim of October 2017.
25. Paragraph 20 of the statement of claim alleges that “the first named defendant has acted in breach of duty, including constitutional and statutory duty and/or has acted negligently.”
Particulars of breach:
“(a) Pursuant to Article 10 of the Constitution the first named defendant was precluded from allowing Northern Ireland registered vessels to fish for mussel seed in the State’s territorial waters save in accordance with provision made by law.
(b) In the absence of such provision being made by law, the first named defendant permitted Northern Ireland registered fishing vessels to fish for mussel seed in Irish territorial waters allocated mussel seed to the said fishing vessels, permitted the said fishing vessels to remove mussel seed from the territory of the State and/or engaged in management and control of alienation of a natural resource without provision made by law, contrary to Article 10 of the Constitution”
The plaintiffs claim breach of their constitutional rights under Arts. 40.3.1; 40.3.2; and 43.2.1.
26. Paragraph 18 alleges that “the first named defendant acted ultra vires when delegating his allocation functions to SMAC and/or permitting SMAC to make recommendations and/or making decisions in respect of mussel seed allocation on an all-Ireland basis.”
27. Paragraph 19 claims the purported transfer of these powers is “improper, in breach of statutory duty and constitutes an improper failure to exercise discretionary powers and is null and void and of no force or effect.”
Under the heading “particulars of breach” the following is alleged:
“(b) the purported transfer of his assessment function to SMAC is in breach of the principle of delegatus non potest delegare …
(f) the first named defendant has breached his duty by failing to ensure appropriate assessments of the seed industry are carried out on an ongoing basis.
(g) the first named defendant has breached its duty by failing to set adequate conservation objectives and management plans providing for sustainable exploitation of the mussel seed resource.”
28. Paragraph 21 alleges that “at all material times the plaintiff had a legitimate expectation that the defendants would act in accordance with, and enforce, the procedural and substantive terms of international agreements, including the Voisinage Agreement.”
29. The plaintiffs seek a number of declarations in respect of the claims made and damages. The defendants have delivered a full defence.
30. Therefore, the issues which have to be determined by the Court are:
(i) Breach of constitutional duties/rights;
(ii) Breach of statutory duty;
(iii) Negligence and breach of duty;
(iv) Wrongful delegation;
(v) Legitimate expectation
31. Further, the Court was referred to a judgment of the ECHR in O’Sullivan McCarthy Mussel Development Limited v. Ireland, delivered 7 June 2018. This judgment arose from an application made by the unsuccessful plaintiffs in Cronane Seafoods Limited v. the Minister for Agriculture, Fisheries and Food [2017] 1 I.R. 119. The Court will consider this decision in the context of the claim being made in these proceedings.
Evidence on issues
32. I have already referred to the evidence given by each of the individual plaintiffs. Though there are claims concerning mis-management of the mussel seed resource by the first named defendant, it seems to me that central to the claims being made by the plaintiffs was the presence and fishing activities of vessels registered in Northern Ireland in the territorial waters and an allegation that same caused them loss and damage. The presence of these Northern Ireland registered vessels was as a result of the implementation of mussel seed fishing on a cross-border basis under the Voisinage Agreement. This gave rise to SMAC which had representatives of the relevant agencies both North and South of the border. All this was taking place against a background of an official recognition by the State of the need to exploit the commercial potential of the mussel industry. The situation was well summarised in the following passage from a report prepared in 2008 entitled “ Rising Tide – A Review of the Bottom Grown (BW) Mussel Sector on the Island of Ireland ”:
Paragraph 1.1
“Large areas of seabed have been granted aquaculture licences in both jurisdictions, and significant investment has been made in the acquisition of vessels and other facilities to fish for seed mussel and to relay and harvest. These factors are driving a heavy demand – far in excess of available supply for seed mussels which are a naturally occurring resource shared by both jurisdictions. In these circumstances a ‘bonanza’ type mentality has crept into the sector, making it very difficult to achieve consensus amongst the competing operators. Thus the regulatory authorities are in a no-win situation being subject to sharp criticism from completing interests within the sector seeking access to the seed mussel fisheries.”
33. Whatever about the presence of Northern Ireland registered vessels in the territorial waters, mussel seed is a finite resource and so requires good management. This is probably best encapsulated by what is described as the “precautionary principle”, a principle which recognises that the amount of mussel seed is limited and is subject to a number of factors both man-made and natural. Amongst the natural factors are the weather and the presence of starfish who appear to have a voracious appetite for consuming mussel seed. Indeed, the Court heard evidence that the mussel industry in Holland, which is considered to be the world leader, was almost destroyed not by human activity but rather by ducks. An application of the “precautionary principle” could have resulted in access to mussel seed areas being limited for specified time periods or, in some cases, being completely denied for significant lengths of time.
34. The Court heard evidence from experts in this area. Firstly, on behalf of the plaintiffs, Dr. Julie Maguire gave evidence. Dr. Maguire is highly qualified, has a doctorate in the area of shellfish, has considerable research experience and has published wildly. The report which Dr. Maguire furnished to the Court sets out, in detail, the amounts of mussel seed fished in the Irish Sea by both vessels registered in Northern Ireland and vessels registered in the State. It is clear from her data that there was some 35,000 tonnes of mussel seed fished in 2003, reducing to a figure below 25,000 in 2004 and 15,000 in 2005. The year 2006 appears to have been a disaster in respect of fishing for mussel seed. The years from 2007 – 2016 did show some recovery, in particular 2010, however they came nowhere near to what was achieved in 2003/2004. Dr. Maguire provided figures for the amount of mussel seed fished by Northern Irish registered vessels in territorial waters. This appears to have amounted to some 10,000 tonnes in 2003, a figure which dropped significantly in 2004. In these years there were a significant number of Northern Irish registered vessels operating in the Irish Sea, the main mussel seed grounds. Dr. Maguire states:
“The Supreme Court delivered a unanimous judgment in October, 2016 stating that Northern Irish fishing vessels cannot legally fish or harvest mussel seed in the Republic of Ireland’s territorial’s waters. In my opinion, the granting of the licences to these vessels in the past directly impacted on the amount of seed available to Republic of Ireland vessels. Before the Northern Ireland vessels had entered fishery, the mussel seed fishery was sustainable with some good practices employed e.g. fishing seed later in the season to minimise mortality and allow the seed itself to recruit to the fishery. However, by 2003/2004 these practices could no longer exist, due to the expansion of the fleet to include UK vessels, which lead to fierce competition and some inexperienced fishermen who often took seed that was too small to survive and thrive. The result was two year masses of seed fished in these years.
The amount of seed that was directly re-laid from ROI sea beds to Northern Ireland is easy to measure, however, the amount of seed lost due to bad management to the fishery is more difficult to ascertain. However, management practices employed during the 80s and 90s have proven that the fishery was sustainable. Even though SMAC only existed for a short time it set the tone for subsequent years whereby allocation to the ROI vessels was significantly curtailed by the allocation to the UK vessels. In my opinion this is the primary reason why the ROI mussel seed stock collapsed in recent years.”
35. Dr. Maguire also analysed the allocations of mussel seed that were made in the years 2004 to 2016. Her report shows that in each year the uptake of mussel seed in the Irish Sea fell short of the amount that was actually allocated, dramatically so in some years. She was also very critical of the basis upon which allocations were given. Allocations were not based on scientific evidence and according to Dr. Maguire:
“Allocations were not based on information provided through annual surveying for mussel seed. In general terms, both the industry and agency survey effort covered a geographical broad area with the aim of finding new seed in previously unsettled areas or new settlement in traditional seed bed areas. Once a bed was located the agency survey effort, should have focussed more on characterising the seed beds in terms of size and limits of the bed seed biomass, size and quality of the seed itself. However, this was not always done. Allocations were awarded before the amount of seed was known and in recent years’ allocations are just rolled over from the previous years.
This was one of the main deficiencies of the Seed Mussel Allocation Committee (SMAC) in making recommendations for seed allocations, the shortfall in good real time survey data. SMAC allocated seed tonnage in the absence of scientific evidence that this tonnage was available or not.”
36. Dr. Maguire was also strongly of the view that the “precautionary principle” ought to apply, that is, one should be conservative in allocating a finite resource, all the more so when there is no scientific data available. Dr. Maguire also gave evidence as to whether or not mussel seed “over wintered”. Clearly, if mussels over winter this increases the amount available the following year.
37. Dr. Terence O’Carroll gave evidence on behalf of the defendants. Dr. O’Carroll has a doctorate in Marine Biology from UCD and has been employed by BIM since October 1988. He has been involved with the mussel industry since starting with BIM and has been involved in trials designed to improve the mussel industry, was a member of SMAC between 2003 and 2006. Though he agreed with Dr. Maguire on a number of points there were areas of disagreement. In particular, on the issue of over wintering, Dr. O’Carroll was of the view that there was considerably more evidence to suggest that over wintering occurs more frequently than that accepted by Dr. Maguire. Further, Dr. O’Carroll placed considerably more emphasis on mussel seed being a creation of nature and thus subject to many influences over which humans have no control. Contrary to the views of Dr. Maguire, Dr. O’Carroll was not convinced that restricting fishing for mussel seed areas to specific periods of time would be beneficial.
38. I have already referred to SMAC and will return to it again later in this judgment in the context of the plaintiffs claim of unlawful delegation. The plaintiffs had a number of criticisms of SMAC. Firstly, a number of the plaintiffs gave evidence that they were not initially aware of the involvement of authorities from Northern Ireland in SMAC. When they did become aware of their involvement, the plaintiffs made their applications for allocations of mussel seed directly to the first named defendant. Secondly, there was criticism of both the allocations of the mussel seed and how they were arrived at.
39. As to the first criticism, it would seem that the plaintiffs were aware of the make-up of SMAC from the circulation of minutes from meetings held from 2002 onwards. I am not convinced that this controversy is directly relevant to the claims being made by the plaintiffs. While it may be argued that, as a result of the Supreme Court decision in the Barlow II proceedings, the involvement of officials from Northern Ireland in allocating a natural resource of this State was unlawful it seems to me that the central issue is the amount that was allocated to each of the plaintiffs and how this was calculated.
40. On the evidence it seems that the allocations from the early years were simply “rolled over” from year to year. In Dr. Maguire’s report there is an analysis for the years 2004 to 2016 of the total allocation of mussel seed in the territorial waters and the amount actually fished. In each year, save for 2004, the amount of mussel seed actually fished does not come close to the amount that was allocated (exhibited in figure 5 of report of Dr. Maguire dated 14 May 2018). This finding by Dr. Maguire is entirely consistent with a schedule for each of the plaintiffs, which was referred to in the course of the hearing, setting out the allocation of mussel seed sought by each plaintiff, the amount of the allocation that was given and, significantly, the amount of mussel seed that was actually fished. Thus the problem facing the plaintiffs was not the allocation but rather the availability of mussel seed. This leads back to the issue concerning the management of the mussel seed resource and the fishing activities of Northern Ireland registered vessels in the territorial waters.
41. As to the management issue, as I have referred to, Dr. Maguire supported a greater application of the “precautionary principle”. For this to be done, however, it would seem that it would have led to the closure of some mussel seed areas which otherwise would have been fished. This, in the short term at least, would have led to an impact on the fishing activities of the plaintiffs. There was no evidence to quantify what this would have been. Indeed, it should be pointed out, as Dr. Maguire stated in her report that:
“[T]he amount of seed lost due to bad management of the fishery is more difficult to ascertain”.
42. It seems to me that at that heart of the plaintiffs’ claim is the fact that for a number of years fishing vessels registered in Northern Ireland were unlawfully fishing for mussel seed in the territorial waters. The effect of this was compounded by the aggressive fishing methods and activities of these vessels which, the plaintiffs gave evidence of, included fishing for mussel seed which was too small. This, it was submitted, lead to over fishing of mussel seed and the consequent collapse in 2006. The plaintiffs claim that all of this inevitably led to less mussel seed being available to the plaintiffs. By contrast, the plaintiffs argued that the more traditional methods of fishing followed by themselves and their colleagues would have resulted in a preservation of the mussel seed.
43. Though the evidence of the activities of the Northern Ireland registered vessels was clear, evidence of its actual effect on the livelihoods of each of the plaintiffs was less so. In her reports, Dr. Maguire presented statistics on the amount of mussel seed fished by Northern Ireland registered vessels and re-laid to aquaculture sites in Northern Ireland. However, though this to my mind establishes a generalised loss for the mussel industry of this State, it does not establish any particular losses in respect of the individual plaintiffs. I do not think that it would be permissible for me to arrive at a figure representing the loss to each of the plaintiffs by simply apportioning amongst them the amount of mussel seed fished by Northern Ireland registered vessels. Though the plaintiffs may well have had the capacity in their aquaculture sites to re-lay the additional mussel seed which would have been made available had the Northern Ireland vessels not been fishing, it can be reasonably anticipated that other mussel fishermen in the State would also have increased their catch. Indeed, an additional supply of mussel seed may well have attracted other entrants into the market.
44. Mr. Martin Hill, chartered accountant, gave evidence on the losses being claimed by the plaintiffs. For each of the plaintiffs, the figures arrived at by Mr. Hill were based on each plaintiffs assertion that the aquaculture grant application detailing the expected allocation of mussel seed should have been the amount allocated by the first named defendant. For the reasons stated later in this judgment the plaintiffs are not legally entitled to make such an assertion. In any event, there was no specific evidence for each of the plaintiffs establishing that the difference between the allocation of mussel seed set out in the grant application and the amount actually allocated (or fished) was the result of the fishing of Northern Ireland registered boats and/or mismanagement of the mussel seed resource. In my view, in the absence of such evidence, a court could not be in a position to assess damages were such to arise.
45. The plaintiffs submitted that in assessing damages, the Court should adopt the approach taken in Lett and Co. Limited v. The Wexford Borough Council [2012] 2 I.R. 198. In this case the plaintiff was involved in mussel farming in Wexford for many years. A plan to upgrade local sewage facilities was adopted which included the construction of a waste treatment plant which would involve an exclusion zone encompassing the plaintiffs’ mussel beds. The plaintiff brought proceedings claiming damages arising from a breach of legitimate expectation that he would receive compensation due to the imposition of the exclusion zone. In assessing the damages to which the plaintiff was entitled the High Court, and on appeal to the Supreme Court, had available basic figures of profit and loss both before and after the imposition of the exclusion zone. It also had figures based on increased income due to an increased density of mussel harvesting. There are no comparable figures in the instant case.
46. By reason of the foregoing, I make the following findings:
(a) Had vessels registered in Northern Ireland not been fishing for mussel seed in the territorial waters, there would have been additional mussel seed available for the plaintiffs and other vessels licensed by the State.
(b) There was insufficient evidence to quantify how much of the mussel seed made available by the absence of Northern Ireland registered vessels would have been fished by the plaintiffs. Further, account would have to be taken of the extra amount that could be fished by vessels other than the plaintiffs registered in the State and new entrants into mussel seed fishing.
(c) Though the manner in which the allocations of mussel seed to the various plaintiffs were made may be open to criticism, the evidence shows that, for the most part, the amount of mussel seed fished by each of the plaintiffs fell short of their respective allocations.
(d) Even if it were established that the first named defendant failed to manage the mussel seed resource appropriately, there was no evidence to quantify this. Indeed, an aspect of good management as proposed by the plaintiffs would have led to a closure of areas for mussel seed fishing which would have led to a reduction in the amount fished.
Applicable legal principles
47. In previous paragraphs I have identified what I believe to be serious deficiencies in the evidence given by the plaintiffs. It is necessary for me to examine the legal principles as apply to each of the heads under which the plaintiffs make their claim.
Breach of constitutional duties/rights
48. The plaintiffs successful appeal to the Supreme Court in the Barlow II proceedings established that under Article 10 of the Constitution mussel seed, being a natural resource, is the property of the State. Mussel seed therefore is not the property of the plaintiffs and this has legal consequences. I refer to Casey v. Minister for Arts [2004] 1 IR 402 a case concerning Skellig Michael, a national monument under the National Monuments Acts 1930 – 1994. As part of a programme for the conservation and restoration of the island a review of access, safety and control of visitors on the island was carried out in 1994. This review identified that the increasing number of visitors was causing damage and deterioration. Following consultation and discussions with boat operators, it was decided that landing permits would be granted to existing boat operators and operators who had invested in boats for operation during the particular season. The applicant sought an order of certiorari quashing the respondent’s refusal to grant him a landing permit. In giving the decision of the Supreme Court, Murray J. (as he then was) stated:
“[51] What is clear is that the appellant wishes to carry on a quite legitimate business of using his boat for tourist or commercial pleasure purposes. There is no complaint that he is restricted in carrying on such a business other than that he has not been given permission by the respondent to land his customers at Skellig Michael. Skellig Michael belongs to the State not to the applicant. In complaining that his constitutional rights have been breached he is in effect saying that he has a constitutional right to land his customers on Skellig Michael as part of his pleasure or tourist business.
[52] I think one only has to state this proposition to see that it cannot be right. It seems to me that the applicant has misconceived the nature and ambit of the right to earn a livelihood. To engage in such a lawful business activity for the purpose of earning a livelihood is something which a citizen is entitled to do as of right. It is self-evident that the right to carry on such a business does not entitle the citizen to have access, as of right, to the property of third parties and use it for business purposes. It does not matter whether the property, in this case a national monument, is privately owned or owned by the State”
Adopting the authority of this decision, though the plaintiffs have a personal right to earn a livelihood this does not extend to them having a right to mussel seed which is the property of the State. Although it has been established by the Supreme Court that there has been a breach of Article 10 in permitting Northern Ireland registered vessels to fish for mussel seed in the territorial waters this, in my view, was not a breach of a personal constitutional right so as to entitle the plaintiffs to damages (see Greene v. Minister for Agriculture [1990] 2 IR 17).
49. The plaintiffs sought to rely upon An Blascaod Mór Teoranta v. Commissioners of Public Works (No.4) [2000] 3 IR 565. In this case, the relevant issue was whether a claim for damages could arise against the State for passing through the Oireachtas an Act that was unconstitutional. Though in the instant case the issue is the lack of legal authority for mussel seed fishing rather the passing of an unconstitutional Act, the decision of Budd J. is, nonetheless, instructive. At p. 590, Budd J. stated:
“There is no case in point to give a guideline where damage is alleged to flow from the actual invalid enactment. It seems to me that the appropriate redress in this type of case is a declaration of invalidity. In the circumstances of this case redress should not extend to damages. Having heard cursory evidence, I have concluded that there are a number of imponderables in respect of the heads of damage and that there is a lack of the type of direct causal link necessary. The plaintiffs have never been dispossessed of their property on the island and indeed the publicity arising from the litigation may well have made the culture of the Great Blasket even more well known.”
And at p. 591:
“My conclusion is therefore that under Articles 15.4.2° and 34.3.2° of the Constitution the court has jurisdiction to declare an Act invalid and to give necessary and appropriate redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.”
In my view, the plaintiffs have failed to establish that the damage which they claim to have suffered flowed directly from the unlawfulness ultimately found by the Supreme Court. The plaintiffs contend that the damage which they have suffered is a breach of their right to earn a livelihood. This right however is based on a right to mussel seed which the Supreme Court has found is the property of the State and in respect of which the plaintiffs do not have a right.
50. The further hurdle that confronts the plaintiffs are the principles set out in Glencar Exploration PLC v. Mayo County Council [2002] 1 IR 84. In that case, the applicants were involved in the exploration, prospecting and mining of ores and minerals. They had secured a number of prospecting licenses from the State in respect of certain lands in County Mayo. On foot of these licenses, the applicants carried out extensive prospecting and had achieved encouraging results. Unfortunately for the applicants the respondent County Council, despite advices to the contrary, ratified a development plan which incorporated a mining ban. The applicants successfully challenged this mining ban and the development plan was held to be ultra vires the respondent and was null and void. The applicants then claimed damages from the respondent for, inter alia, interference with the constitutional rights, breach of statutory duty, negligence, and breach of legitimate expectation. At p. 128, Keane C.J. stated:
“As for the damages allegedly sustained by the applicants as a result of the breach of their constitutional rights, a similar claim was made in Pine Valley Developments v. The Minister for Environment [1987] IR 23, but was also rejected. In that case, the ultra vires decision by the Minister for Local Government, to grant permission for the development of the plaintiff’s lands was treated by Finlay C.J. in the course of his judgment, as having probably contributed towards a diminution in the value of the land in the plaintiff’s hands. Similarly, it could no doubt be said in the present case that the imposition of the mining ban contributed to a reduction in value of the property right represented by the prospecting licences which was vested in the applicants. Finlay C.J., however, said at p. 38 that:-
‘I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims or compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.’
I am satisfied that those considerations apply to the present case. The remedy available to person affected by the commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned decision and not an action for damages, to allow which, in the case of public officials, would be contrary to public policy for the reasons set out by Finlay C.J. in passage just cited.”
Earlier in his judgment, Keane C.J. at p. 127 stated:
“This view of the law is authoritatively confirmed by the judgment of Finlay C.J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23 where he cited with approval the following statement of the law in Wade on Administrative Law (5th Ed.) at p. 673:-
‘The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:
1. If it involved the commission of a recognised tort, such as trespass, false imprisonment or negligence.
2. If it is actuated by malice, e.g. a personal spite or a desire to injure for improper reasons.
3. If the authority knows that it does not possess the power which it purports to exercise.’”
51. Glencar Exploration was considered in Cromane Seafoods Ltd v. Minister for Agriculture [2017] 1 IR 119, a case which also concerned mussels where one of the plaintiffs was involved in the production of mussels in Castlemaine Harbour. This harbour had been designated as a special protection area under the relevant EU legislation by the first named defendant. When announcing the intention to designate the area as being a special protection area, the defendant stated that it was not envisaged that the designation would restrict the then current usage of the area. However, the European Commission took a contrary position and brought proceedings against the State in the Court of Justice of the European Union (CJEU). The CJEU found in favour of the Commission and, as a result, Castlemaine Harbour was closed to the plaintiff’s mussel seed harvesting activities. Thought the harbour subsequently reopened it was not until after the end of the harvesting season. As a result, the plaintiff was unable to harvest mussel seed for a further year and thereby sustained loss and damage. I think it is important to note that in Cromane Seafoods Ltd what was involved was aquaculture sites in respect of which the plaintiffs had a proprietary right. In the instant case, however, what is involved is mussel seed which is the property of the State and in respect of which, as I have found, the plaintiffs do not have a right. The Supreme Court in Cromane Seafoods Ltd, as per MacMenamin J. at p. 181, again referred to the earlier decision of Pine Valley:
“[166] The first of these, Pine Valley Developments v. Minister for Environment [1987] IR 23, this court, held, unanimously, that where a Minister is exercising a public statutory duty, he or she will not be liable in damages, even for an ultra vires action, unless the exercise of the power involves the commission of a tort, or is actuated by malice, or unless the authority knew that it did not possess the power which it purported to exercise. A Minister, in reaching his or her decision to grant a licence, and acting bona fide, in pursuance of advice which they had been given by a departmental senior legal advisor, could not be guilty of negligence or negligent misrepresentation”
I will return to Cromane Seafoods Ltd later when dealing with the issue of negligence.
52. On an application of Glencar Exploration and Cromane Seafoods Ltd, I am satisfied that the plaintiffs cannot succeed in their action for damages in respect of the unlawfulness of the State in allowing vessels registered in Northern Ireland to fish for mussel seed in the territorial waters. I am not satisfied that such involved the commission of a tort nor was there any evidence of malice or evidence that the first named defendant was aware that he did not have the legal power to permit vessels registered in Northern Ireland to fish for mussel seed in the territorial waters.
53. The plaintiff sought to rely on a number of decisions involving taxi licenses. These decisions were Muldoon v Minister for Environment and Local Government [2015] IEHC 649 and Gorman v Minister for Environment and Local Government [2001] 2 IR 414. I am satisfied that the principles set out in those decisions are not applicable in the instant case. I reach this conclusion on the basis that though a person may have a proprietary interest in a taxi license that he/she has purchased, the plaintiffs herein do not have a proprietary interest, for the reasons stated, in mussel seed.
Negligence/Negligent Misstatement
54. Again, the starting point is the decision of the Supreme Court in the Barlow II proceedings wherein it was decided that under Article 10 of the Constitution mussel seed is the property of the State. The plaintiffs relied on the alleged negligence of the defendant in the management of this resource.
55. A number of issues arise from this claim. Though there are recognised torts that make it unlawful to manage or use property in such a manner that injures others, I do not see that the tort of negligence arises in the instant case. As mussel seed is the property of the State, I cannot see that the State is under a duty of care to manage the mussel seed in such a way that protects the commercial interest of the plaintiffs. In the same way the owner of a gravel quarry is not under a duty to manage the gravel in order to protect the commercial interest of persons engaged in road building. Though it is clearly desirable to manage mussel seed appropriately, I cannot see that failing to do so amounts to negligence.
56. In taking this restrictive view of negligence, I believe I am in accordance with the decision in Cromane Seafoods wherein MacMenamin J. at p. 191 stated:
“[198] I do not believe a duty of care existed between the appellants and these respondents in 2008. The Department was undoubtedly aware of the Castlemaine situation, but it was also in the context of an awareness regarding all the other operations of a similar nature within the State. In the years 2008 to 2010 some 150 Natura 2000 surveys had to be carried out by the State. The question of where national priorities lay, or who should receive resources, or where surveys should be carried out first; all were preeminently questions for the executive, even accepting meetings actually took place between representatives of the respondents and the Department between 2008 and 2010. But it is difficult to find that anywhere in the relationship there could be said to be a ‘duty of care’ or ‘proximity’, even if loss might have been foreseeable”
57. Further, if there is a duty of care on the first named defendant concerning the management of mussel seed, the appropriate standard has to be identified. Is the standard of care similar to that which applies to professionals, i.e. that the professional in question by act or omission has acted in a way which no other similarly qualified professional would have done if taking reasonable care? I refer again to Cromane Seafoods Limited where, at p. 192, MacMenamin J. stated:
“[199] In fact, the closely connected issue of standard of care presents as great a challenge as that of duty of care. It impacts on the entire timespan encompassed. First, it is questionable whether the law can comfortably accommodate a situation where operational negligence would involve a Donoghue v. Stevenson [1932] A.C. 562 test. That threshold is a low one based, as Lord Atkins put it, on knowledge of the effect of actions or omissions on one’s neighbour. But, to cite inaction between 2000 and 2008 raises an entire range of issues already touched on in this judgment, again including proximity and whether there was a duty of care at all. It is unclear if the actions of a Minister in an area of discretion are to be considered on the basis of the standards applicable in a professional negligence action, or, alternatively perhaps, on The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 standards. All of these questions seem to me to present insuperable difficulties, at least in the instant case. As to a ‘professional negligence’ standard, there was no concrete evidence about what would have been the normally accepted procedure by a person in the position of the Minister. Were a The State (Keegan) v. Stardust Compensation Tribunal test adopted, a court would have to hold that a Minister acted, or omitted to act, in a way no Minister could reasonably act. In short, applying a higher standard implies evidential deficits, and a misapplication of the law; applying a lower standard far too easily places a court in a position of being a surrogate decision maker in this area, an issue further explored below, especially bearing in mind the fact that, prima facie, the Minister was acting ultra vires.”
58. In the instant case, there was a dispute between two qualified and experienced experts, Dr. Julie Maguire and Dr. Terence O’Carroll, as to the appropriate way for the first named defendant to manage the mussel seed resource. In my view, were there to be a duty of care on the first named defendant, the appropriate standard would be that which applies in professional negligence actions. I say this as it is clear from the evidence that managing a natural resource like mussel seed involves exercising judgment in areas such as natural science, biology and economics. I would characterise the differences between the experts in the instant case as being an honest difference of opinion which, of itself, does not amount to negligence.
59. Insofar as the plaintiffs are making a claim for negligent misstatement, the findings set out in the previous paragraphs also apply.
Breach of statutory duty
60. The plaintiffs have identified a number of statutes and statutory instruments, which I have set out at para. 23 above, which they claim the defendants have been in breach of:
(i) Section 10 of the Act of 2006;
(ii) Section 13 of the Act of 2006;
(iii) Molluscan Shellfish (Conservation of Stock) Order 1987 (S.I. No. 118 of 1987);
(iv) Mussel seed (Conservation and Rational Exploitation) Order 2003 (S.I. No. 241 of 2003);
(v) Mussel seed (Fishing) Regulations 2006 (S.I. No. 311 of 2006)
61. As a general principle, if the statutory duty in question is owed to the public at large then no action for damages for breach of statutory duty arises (see Glencar Exploration). An application of this principle was seen in Atlantic Marine Supplies Limited v. Minister for Transport [2016] 1 I.R. 605. In this case the plaintiff was a company specialising in the supply of safety equipment for fishing boats. It was alleged that the first named defendant had failed to enforce requirements contained in a code of practice in respect of specifications for life rafts which vessels of a particular length were required to carry. The plaintiffs alleged that, as a result of this, a large number of such vessels did not have the appropriate life rafts and the plaintiffs thereby lost business. In the High Court, Clarke J. (as he then was) held at p. 625:
“[52] In relation to statutory duty per se it is clear from cases such as Moyne v. Londonderry Port and Harbour Commissioners [1986] I.R. 299 and Sweeney v. Duggan [1991] 2 I.R. 274 that the question of whether a plaintiff is entitled to claim damages for breach of statutory duty must start with the consideration of whether, taking the relevant statutory regime as a whole, it can be said that it was ‘intended by the legislature that an aggrieved plaintiff would be entitled to damages’”.
and,
“[55] … I am prepared to accept, for the purposes of argument, that there may be circumstances in which a failure of regulation can give rise to a breach of statutory duty. However, for such to be the case, it seems to me that the relevant legislation would need to provide in express or necessarily implied terms for a specific duty of a particular type on the relevant regulator, from which the court might conclude that the proper construction of the relevant statute was such as imposed a statutory duty on the regulator concerned to act in a particular way or to refrain from acting in a particular way.”
62. In this case the High Court refused to award damages, a decision which was ultimately upheld by the Supreme Court.
63. The wording of s. 10 of the Act of 2006 (see para. 23 above), in my view, does not establish that the plaintiffs, while clearly aggrieved that persons on board vessels registered in Northern Ireland fished in the territorial waters, would be entitled to damages when this occurred. The wording of s. 13 is couched in discretionary terms so it is difficult to see how an aggrieved plaintiff would be entitled to claim damages.
64. Turning to the statutory instruments, S.I. No. 241/2003 concerns, inter alia, allocation of mussel seed by the first named defendant. It seems to me that any remedy for a breach would lie in an application for judicial review rather than in a claim for damages. The other statutory instruments relied upon by the plaintiff concern the conservation of shellfish, including mussel seed, and could not be said, in my view, to confer on the plaintiffs an entitlement to damages in the event of the relevant provisions not being applied by the first named defendant.
Legitimate expectation
65. Once again, I refer to Glencar Exploration where Fennelly J. at p. 162 stated:
“In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.”
66. In Atlantic Marine Supplies Limited, O’Donnell J., in the Supreme Court, stated at p. 653:
“… The obligation on the executive to enforce the law enacted by the Oireachtas is derived from the Constitution, and is not dependent on any concept of legitimate expectation which could be relied upon by a more limited group of citizens, to found a claim for damages. I also agree that it is, at a minimum, unlikely that the enactment of legislation which itself does not give rise to a right to sue for breach of statutory duty, could nevertheless give rise to a legitimate expectation sounding in damages in the same group. On similar reasoning it might indeed be said that if this is possible then at the level of principle, it would follow that all legislation was capable of giving rise to some such legitimate expectation on the part of interested parties, or indeed quite possibly any citizen, with a corresponding right to enforce such an expectation and to claim damages if it is possible to advance a claim in relation to them. It is not necessary to analyse the matter further: it is sufficient to conclude that the finding of legitimate expectation in this case cannot be upheld.”
67. The plaintiffs’ claim that they had a legitimate expectation that the defendants would act in accordance with the law and, in particular, concerning the allocation of mussel seed in that the mussel seed would be allocated taking into account the various significant financial investments which they had made. It should be noted, however, that in respect of grant aid for new fishing vessels the following was stated:
“the offer of grant aid, if accepted, does not imply any right whatsoever to future allocation of mussel seed. The seed mussel allocation procedure is separate and distinct from the process of approval for grant aid.”
One of the conditions of the fishing boat licences which the plaintiffs held was:
“Aquaculture mussel seed restriction: this licence does not confer any entitlement in relation to the allocation of mussel seed by the Department. Approval of proposed aquaculture activities specified in an aquaculture plan and/or on the basis of other information provided, solely relates to sea fishing boat licencing and should not be construed as conferring in anyway, entitlement to mussel seed in any allocations made by the Department.”.
68. It seems to me that the statements made in respect of grant aid and the fishing boat licence could not amount to a promise or representation required for the first of the tests identified by Fennelly J. as necessary to succeed in a claim for legitimate expectation. I have already reached the conclusion that the statutory provisions that provide for the allocation of mussel seed do not confer on the plaintiffs a right to claim damages. So, as per O’Donnell J., at para. 66 above, this cannot support a claim for legitimate expectation. Further, I adopt the restriction referred to by Clarke J. in Lett & Co. Limited v. the Wexford Borough Council, in the High Court, of the need to preserve the discretion of the first named defendant in making allocations of mussel seed. In Lett, Clarke J. stated at p. 212:
“[29] In the light of those authorities it seems to me that, on the current state of the development of the doctrine of legitimate expectation, it is reasonable to state that there are both positive and negative factors which must be found to be present or absent, as the case may be, in order that a party can rely upon the doctrine. The positive elements are to be found in the three tests set out by Fennelly J. in the passage from Glencar Exploration p.l.c. v. Mayo County Council (No. 2) [2002] 1 I.R. 84, to which I have referred. The negative factors are issues which may either prevent those three tests from being met (for example the fact that, as in Wiley v. The Revenue Commissioners [1994] 2 I.R. 160, it may not be legitimate to entertain an expectation that a past error will be continued in the future) or may exclude the existence of a legitimate expectation by virtue of the need to preserve the entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in the statute concerned”
69. Finally, the plaintiffs made numerous references to the National Development Plan which set out ambitious targets for the mussel industry. These targets were never reached. A National Development Plan is, by its nature, ambitious and aspirational. I do not think it could be seriously contended that a target or aim set out in a National Development Plan would amount to a promise or representation to act in a particular way.
Unlawful delegation
70. The plaintiffs allege that the discretion provided for in s. 13 of the Act of 2006 (and related statutory instruments) was unlawfully delegated to SMAC. They allege that it was SMAC which evaluated the applications for mussel seed and determined the amount to be allocated.
71. It was the case that in a number of years after 2000 allocations for mussel seed were simply rolled over from year to year. This would indicate that the various criteria were not being applied. However, any remedy in respect of this would lie in judicial review proceedings. In any event, as has been referred to earlier, for the most part, the amount of mussel seed fished by the plaintiffs fell short of the amount that was allocated.
72. In my view, the first named defendant was entitled to delegate to SMAC an advisory role in the allocation of mussel seed. It could hardly be suggested that the Minister himself was legally obliged to consider, determine and award allocations of mussel seed without the involvement of officials with more professional knowledge (see Tang v. the Minister for Justice, Equality & Law Reform [1996] 2 IRLM 46).
73. The Minister still retained legal responsibility for the allocations and had there been judicial review proceedings initiated by the plaintiffs in respect of the allocations then the Minister would have been the respondent.
European Convention on Human Rights
74. The ECtHR, on 7 June 2018, delivered judgment in O’Sullivan McCarthy Mussel Development Limited v. Ireland. This judgment arose from an application to the ECtHR by the unsuccessful plaintiffs in Cronane Seafoods Ltd. This case was based on established property rights in the aquaculture business, property rights which would engage the provisions of Article 1 of Protocol 1 of the ECHR. As I have referred to earlier in this judgment, however, the instant case does not concern the plaintiffs’ property rights in their own aquaculture business but rather they are seeking to establish property rights in mussel seed. The decision of the Supreme Court in the Barlow II proceedings established that mussel seed is the property of the State and thus it cannot be the property of the plaintiffs. I have also rejected the contention that the plaintiffs constitutional right to earn a livelihood extends to a property right over mussel seed. Thus, in my view, this decision of the ECtHR is of no assistance to the plaintiffs.
Conclusion
75. As is clear from the foregoing, I have rejected the various claims made by the plaintiffs so the Court must dismiss the action. In reaching this conclusion, however, it would be wrong for the Court not to recognise the energy, application and dedication which the plaintiffs have brought to their respective businesses. Though, in my view, the law prevents any remedy for the plaintiffs, the fact remains that for many years the State permitted vessels registered in Northern Ireland unlawfully to fish for mussel seed to the detriment of the mussel industry. Thus it cannot be said that the plaintiffs were well served by the State.
Weir v Corporation of Dun Laoghaire
1982 No. 15
Supreme Court
20 December 1982
[1984] I.L.R.M. 113
(O’Higgins CJ, Griffin and Hederman JJ)
20 December 1982
O’HIGGINS CJ
(Hederman J concurring) delivered his judgment on 20 December 1982 saying: This is an appeal against a jury’s verdict awarding damages to the plaintiff. The appeal rests on two submissions made by the defendants. In the first place they contend that the trial judge ought to have withdrawn the case from the jury because there was no evidence that the interference with the roadway which caused or contributed to the plaintiff’s injuries was either authorised or permitted by them. Secondly, they claim as an alternative, that the case ought to have been withdrawn from the jury because there was no evidence of negligence.
I propose to deal in the first instance with the second ground of appeal. The evidence establishes that on the Sunday morning of the accident the plaintiff who was an elderly lady was, in the company of her husband, crossing the road at Royal Marine Road, Dun Laoghaire. She was proceeding from Dun Laoghaire Church towards a new shopping centre on the far side of the road. As she neared the side to which she was proceeding she tripped, fell and suffered injuries. There was evidence that the cause of her fall was a difference in road levels of two inches or more along a line where a new layby for buses *115 was been constructed. No warning of this difference in level was given and the entire roadway which was tarmacadam, appeared uniform. I am quite satisfied that on these facts it was proper that the case should have gone to the jury on the issue of negligence. The jury having found negligence I do not think that such finding can be disturbed.
As to the first ground it appears that the difference in road levels which caused or contributed to the plaintiff’s fall and injuries came about in the following circumstances. A company called MEPC (Ireland) Ltd sought planning permission from the defendants as the planning authority under the Local Government (Planning and Development) Act 1963 for the development of a site along Marine Road as a shopping centre. Permission was obtained from the defendants as the planning authority on 12 December 1973 but an appeal was logded by an objector. The appeal was decided and final planning permission granted by the Minister for Local Government on 21 August 1973. A condition of this permission was that a bus layby be provided by the developers, if required by the planning authority, on Marine Road. When the building of the shopping centre was completed a firm of contractors called John Paul & Company proceeded to erect or construct a bus layby along Marine Road. This involved considerable interference with the roadway and adjoining footpath. The layout of this bus layby was agreed with the defendants. This appears from the evidence of their assistant borough engineer. In addition, from his evidence it appears that the carrying out of the work was known to the defendants. From these facts it can fairly be inferred that the provision of the bus layby had been required by the defendants as the planning authority and that the work was carried out by John Paul & Company on behalf of the developers and with the knowledge and approval of the defendants as the planning authority.
The defendants maintain that as the highway authority under the Local Government Act of 1925 they are not to be fixed with knowledge or made liable in respect of any licence or approval which they might have or may have given as the planning authority under the Local Government (Planning and Development) Act 1963. I do not accept this submission. I am satisfied that the defendants must be held to have known and to have approved of the work undertaken by John Paul & Company. Even if the work was authorised originally by the defendants solely as the planning authority this does not mean that as the highway authority they cannot be regarded as having knowledge thereof. Whatever was done was clearly done with their knowledge and they had a responsibility to look to the safety of those using the roadway, who might thereby be exposed to danger if what was done caused risk of injury. In my view, the grounds upon which this appeal has been moved fail and this appeal should be dismissed.
GRIFFIN J:
The facts are set out in the judgment of the Chief Justice. On those facts, the plaintiff is entitled to succeed against the person who created the danger on the highway — for danger it was to pedestrians such as the plaintiff. The work in this case was, however, not carried out by nor was the danger created by the defendants.
*116
The defendants are the highway authority charged with the repair and maintenance of the roads (including footpaths) in Dun Laoghaire pursuant to Part III of the Local Government Act 1925, and they are sued as such. It is well settled that, as such authority, although they are not liable to a user of the highway for injuries suffered or caused by want of repair (non-feasance), they are liable in damages for injuries suffered by such user if they or their servants, or those for whose acts they are responsible, have been negligent in doing repairs to or in interfering with the highway (misfeasance). Where the interference with the highway is done by their servants, no difficulty arises. Where the work is carried out by an independent contractor engaged by them to do the work, although they are not responsible for the casual or collateral negligence of the contractor, they are liable if their contractor fails to take reasonable precautions to protect the users of the highway from danger which, from the nature of the work, is likely to be caused to them. The authority which has undertaken the work cannot escape responsibility by delegating the performance of the duty imposed on them to the contractor.
If, therefore, in this case the defendants had undertaken the work in question, and the two inch difference in level had been causd by their servants or by a contractor engaged by them to carry out the work, they would be clearly liable in damages to the plaintiff. That however was not the position.
In the High Court and on the hearing of this appeal the case made on behalf of the plaintiff was that because the developers of the shopping centre obtained planning permission for the development, which included the construction of a bus layby on Marine Road, the lay out of which had in advance been agreed with the defendants, and because the defendants were aware that work was being carried on by the contractors engaged by the developers, the work being carried out had been ‘authorised’ by the defendants, and that they were liable for any negligence of such contractors in carrying out the work, and in particular in failing to warn of or guard against the danger on the highway on the occasion of the accident.
The learned trial judge accepted this submission and ruled accordingly. In my opinion, his ruling was incorrect — so to extend the liability of a highway authority to include responsibility for the acts of a contractor engaged by a developer in doing work for which the latter had obtained planning permission, and equating this liability with that of the authority for acts of a contractor engaged by them, is in my view warranted neither by principle nor authority. Indeed, all the cases cited in the High Court and referred to in the ruling of the trial judge were cases in which the work had been carried out to the highway by the highway authority. In this Court, counsel were unable to refer to, nor have I been able to find, any case in which liability attached to a highway authority by reason of the granting of planning permission for the work being carried out.
Although the plaintiff is entitled to be compensated in damages for the injuries suffered to her in this accident, in my judgment she is not so entitled as against the present defendants. I would accordingly allow the appeal.
Beatty -v- The Rent Tribunal
[2005] IESC 66 (21 October 2005)
Court: Supreme Court
Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., McCracken J.
Judgment by: Fennelly J.
Status of Judgment: Approved
Judgments by
Result
Concurring
Dissenting
Geoghegan J.
Appeal allowed – set aside High Court Order
Denham J., Hardiman J.
Fennelly J.
Appeal allowed – set aside High Court Order
McCracken J.
Appeal allowed – set aside High Court Order
Outcome: Allow And Set Aside
3
THE SUPREME COURT
Record No. 290/2003
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
McCracken J.
BETWEEN
MARK BEATTY and WALTER BEATTY
Respondents/Applicants
and
THE RENT TRIBUNAL
Appellant/Respondent
and
FRANCIS McNALLY
Notice Party
JUDGMENT of Mr. Justice Geoghegan delivered 21st day of October 2005
The issue which arises in this appeal is whether a claim in damages for negligence may be made against the Rent Tribunal established under the Housing (Private Rented Dwellings) (Amendment) Act, 1983 arising out of the tribunal’s manner of determining a rent and a consequent monetary loss to the respondents on this appeal. The High Court (O’Donovan J.) made such an award and the Rent Tribunal which is the appellant on this appeal has appealed that decision.
Arising out of problems concerning the constitutionality of the Rent Restrictions Act, 1960 new statutory provisions relating to rent fixings in respect of private rented dwellings were enacted in the Housing (Private Rented Dwellings) Act, 1982. In the case of dwellings which had formerly been controlled dwellings under the Rent Restrictions Acts, the Act provided for applications to the District Court to have new rents fixed having regard to criteria set out in sections 12 and 13 of that Act. The 1983 Act cited above removed this rent fixing jurisdiction from the District Court and conferred it on a newly established statutory tribunal called “The Rent Tribunal”. This Act provided for the Tribunal to have a seal and that the relevant Minister might appoint from his staff a person or persons to assist in the performance of the tribunal’s functions and that expenses thereby incurred would be paid out of funds provided by the Oireachtas. There is no appeal from the determination of the Rent Tribunal except on a question of law which can go to the High Court.
As Fennelly J. has given a full account of the factual background to this appeal which I happily adopt, I will set it out in an abbreviated form. The respondents are the landlords and the notice party is the tenant of a controlled dwelling within the meaning of the Rent Restrictions Acts. An application had been brought to the Rent Tribunal to determine a rent in 1995 and the rent was fixed at £300 per month. Following on a new application brought in July 2000 the Rent Tribunal determined a new rent of £500 per month on the 12th December, 2000. That figure was less than had been proposed even by the tenants’ valuer and as Fennelly J. points out was, therefore, quite surprising.
The respondents took the view that in arriving at its determination the Rent Tribunal had not adopted fair procedures and accordingly, pursuant to leave applied for judicial review in the form of an order of certiorari quashing the tribunal’s determination. This application came on for hearing before Finnegan J. (as he then was) who granted the order sought on three grounds:
1. The presence of the tenant and the absence of the landlords during the tribunal’s inspection of the premises gave rise to an apparent unfairness.
2. The respondents were not given adequate time to respond to a valuation report submitted by the notice party. Time limits had been laid down for the furnishing of reports but a report from the notice party was received outside of the time limit and shortly before the date scheduled for the decision of the tribunal and in circumstances where the tribunal refused to delay its decision to enable the respondents to have a proper opportunity to respond.
3. Absence of adequate reasons for the determination.
Following on the High Court order, the learned High Court judge permitted a claim for damages to be made which in due course came on for hearing before O’Donovan J. The High Court awarded damages based only on ordinary negligence.
There is a single and simple reason why I believe that the appeal should be allowed and the claim for damages dismissed. Even though the Rent Tribunal (the appellant) is a tribunal which essentially determines rent disputes as between private parties it is a statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that provided it is purporting to act bona fide within its jurisdiction it enjoys an immunity from an action in ordinary negligence. (I will comment later on the issue of immunity in respect of misfeasance in public office). In this respect it is in no different position from a court whether such court be traditionally categorised as “superior” or “inferior”. I agree, of course, with Fennelly J. who has pointed out in his judgment that the same conclusion can be arrived at by a different route. Fennelly J. prefers to avoid the concept of “immunity” in favour of the concept that a negligence action does not lie if, in all the circumstances, it would not be just and reasonable to impose a duty of care. However, the latter seems to me to be a concept that would apply to a wide number of situations (e.g. fear of asbestos disease cases such as in Fletcher v. Commissioners of Public Works) [2003] 1 IR 465) that have nothing to do with immunity of judges or public tribunals. While there is obviously an overlap, I think that judicial immunity is a free standing independent concept and should not be swallowed up by the wider concepts of the general law of negligence.
I am unable to accept the argument that this, being a statutory tribunal, there can be no “immunity” in the absence of a section in the Act providing for it. In my view, the immunity of a statutory tribunal arises at common law and if it is to be removed, the statute has to say so. In this connection and because I agree with it, I think it appropriate to cite a passage from the speech of Lord Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as Arenson v. Arenson) [1975] 3 All ER 901 at 918. I should explain that in that case there was some difference of opinion between the Law Lords as to whether a private arbitrator should enjoy immunity. Ever since the decision of the House of Lords in Sutcliffe v. Thackrah 1 All ER 859 it was clear that as a matter of English law somebody engaged as an expert such as an architect giving a certificate or a valuer did not enjoy immunity, contrary to what had been held in some older cases. To some extent this gave rise to an issue as to whether arbitrators privately appointed should enjoy immunity unless they had contractually given themselves immunity. It had, at any rate, been conceded in argument in Arenson that arbitrators did enjoy immunity. It is not necessary for me in any way to consider that issue as it does not arise in this case. Here the court is concerned with a tribunal set up by statute. Relevant to that issue, Lord Kilbrandon had this to say at p. 918:
“If, then, arbitrators are not immune from suit, what about the judges? Here I believe one is in a different region to which different principles apply. I do not rely on considerations of public policy, although no doubt it is the general acceptance of the principles which has caused a public policy to be adopted. The whole subject has recently been reviewed in Sirros v. Moore [1974] 3 All ER 776. I am aware that in trying to formulate a principle I am straying more towards contract than towards tort, but as I explained earlier I am not distressed by that. The state – I use the word for convenience – sets up a judicial system, which includes not only the Courts of Justice but also the numerous tribunals, statutory arbitrators, commissioners and so on who give decisions, whether final or not, on matters in which the state has given them a competence. To these tribunals the citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is to the state that the superior judge at least promises that he will do justice between all parties, and behave towards them as a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms of the law of tort, litigants are not persons to whom judges owe a legal duty of care – a duty which does not exist in the abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in this context include, of course, persons forming tribunals and other bodies such as I referred to above. You do not test a claim to immunity by asking whether the claimant is bound to act judicially; such a question, as Lord Reid pointed out in Sutcliffe v. Thackrah, leads to arguing in a circle. Immunity is judged by the origin and character of the appointment, not by the duties which the appointee has to perform, or his methods of performing them. I say nothing here about the immunity of counsel and witnesses, which again raises quite different and, to this appeal, irrelevant consideration.”
I find myself in complete agreement with that passage. Those principles put into a modern form by Lord Kilbrandon have applied in the common law courts for hundreds of years. The position was neatly summarised by Lord Denning M.R. in Sirros v. Moore cited above at p. 781. The passage in question reads as follows:
“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take such step to reverse his ruling. Of course if the judge has accepted bribes or been in the least degree corrupt, or has perverted the court of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden C.J. in Garnett v. Ferrand (1827) 6 B & C 611 at 625, 626;
‘This freedom from action and question of the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independence in judgment, as all who are to administer justice ought to be’.
Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low. Lord Tenterden C.J. spoke them in relation to a coroner. They were reinforced in well chosen language in relation to a county court judge by Kelly C.J. in Scott v. Stansfield (1868) LR 3 Exch 220 at 223; and to a colonial judge by Lord Esher MR in Anderson v. Gorrie [1895] 1 Q.B. 668 at 671.”
It is necessary to make two observations about that passage. It is not dealing with judges acting outside their jurisdiction altogether. That is where in Lord Denning’s view, as pointed out by Fennelly J., the distinction is drawn between inferior courts and superior courts of record. However, even in that case the jurisprudence to a large extent related to unpaid justices of the peace and, certainly, to courts which were not courts of record. All Irish courts are courts of record. The second point to be made is that Lord Denning, although making it clear that Lord Tenterden’s remarks related to a coroner does not specifically refer to statutory tribunals but the underlying reason for the immunity quite obviously applies just as much to statutory tribunals as to courts and coroners in inquest and that is why no attempt is made by Lord Kilbrandon to make any such distinction. The following further passage from the judgment of Lord Denning in Sirros at p. 785 is also highly relevant. Under the subheading “The modern courts” he said the following:
“In the old days, as I have said, there was a sharp distinction between the inferior courts and the superior courts. Whatever may have been the reason for this distinction, it is no longer valid. There has been no case on the subject for the last hundred years at least. And during this time our judicial system has changed out of all knowledge. So great is this change that it is now appropriate for us to reconsider the principles which should be applied to judicial acts. In this new age I would take my stand on this. As a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower courts. Every judge of the courts of this land – from the highest to the lowest – should be protected to the same degree and liable to the same degree. If the reason underlying this immunity is to ensure ‘that they may be free in thought and independent in judgment’, it applies to every judge, whatever his rank. Each should be protected from liability to damages when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’ So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.”
As there are some possible ambiguities in the two passages from the judgment of Lord Denning already cited, I want to make it clear that if a judge or tribunal was to knowingly engage in behaviour that was criminal or malicious I would consider that for the reason given in the last sentence of the second passage the immunity to a claim for damages for misfeasance of public office would not apply.
Subject to that proviso I find the reasons given by the English judges for the immunity principle in relation to judges or tribunals involved in judicial acts to be wholly persuasive and I am quite satisfied that the Rent Tribunal was immune in this case to liability for damages for ordinary negligence.
The circumstances in which (if at all) a judge or tribunal may be sued for damages for misfeasance in public office as distinct from ordinary negligence need not be considered in this judgment. The learned High Court judge expressly found that there was no malice or improper intentions on the part of the Tribunal. That being so, there can be no question of liability for misfeasance in public office based on deliberate misbehaviour. It has, however, been pointed out in the supplementary written submissions lodged on behalf of the respondents/applicants and in the oral submissions of their counsel, Mr. Michael Counihan, S.C. that the House of Lords in Three Rivers District Council & Others v. Bank of England [2000] 3 All ER 1 held that deliberate misconduct is not always necessary to ground an action for misfeasance in public office. Subjective recklessness may be sufficient. To quote Lord Steyn at page 1 of the report:
“Reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its second form.”
This view of the law was approved by this court in the unreported judgment of mine delivered the 21st April, 2005 in Kennedy v. The Law Society of Ireland. I agree, however, with the views expressed by Fennelly J. in his judgment where he has pointed out that even though subjective recklessness short of deliberate misconduct may be sufficient nevertheless “bad faith in the exercise of public powers … is the essence of the tort.” I agree also with Fennelly J. that there is no evidence of that sort of recklessness in this case. By reason of the finding by O’Donovan J. of no deliberate malice or misconduct and the absence of recklessness in the sense used by Lord Steyn it is not necessary for me to express a definitive view as to whether an action for misfeasance in public office lies against a judge or tribunal relating to the manner in which such judge or tribunal carried on its business. As Lord Denning pointed out, for the most part, in such situations there are public law remedies in the form of judicial review and where there is a crime involved there may be a prosecution. I would have considerable doubt as to whether an action lies against a judge or a statutory tribunal for misfeasance in public office in circumstances where the court or tribunal was acting within jurisdiction but consideration of that matter can be postponed to a suitable case.
I would, therefore, allow the appeal but only on the basis of judicial immunity. I do not want to express any views on the principles of Irish law relating to recovery of damages for economic loss in a negligence action. I am satisfied that the law on this question has not been finally determined in Ireland notwithstanding some relevant obiter dicta of Keane C.J. in Glencar Exploration P.L.C. v. Mayo County Council (No. 2) [2002] 1 IR 84. It is unnecessary to express any views on that question in this appeal which, while no doubt important to the parties, relates to a very minor factual issue.
JUDGMENT delivered by MR JUSTICE FENNELLY on the 21st day of October, 2005.
The task of the Rent Tribunal is to fix rents. Does it owe a duty of care to landlord or tenant in doing so? The Respondents secured Judicial Review of a rent fixed by the Tribunal and the High Court gave them damages. This appeal requires the Court to examine once more the boundaries of liability in negligence.
The statutory background
This court, in Blake v Attorney General [1982] IR 117, declared the principal provisions of the Rent Restrictions Act, 1960 to be invalid having regard to the provisions of the Constitution: they so limited rents as to represent an unjust attack on the property rights of landlords.
The first legislative attempt to remedy the gap in protection for tenants of controlled dwellings resulted in failure, when this Court, in Re Article 26 of the Constitution and the Housing (Private Rented Dwellings) Bill, 1981, [1983] I.R. 181, declared also incompatible with the Constitution the central rent-fixing provisions of that Bill.
The Oireachtas then enacted the Housing (Private Rented Dwellings) Act, 1982. Section 11 of that Act provided that, in default of agreement, the rent of any dwelling to which the Act applied was to be fixed by the District Court. The Act applied generally to dwellings which had formerly been controlled dwellings under the Rent Restrictions Act. Rents were to be fixed having regard to the considerations set out in sections 12 and 13 of the Act. These were designed to approximate rents more to economic or market reality than had been the case under the former Rent Restrictions Acts. Nonetheless, landlords of controlled dwellings remain bound by statutory control.
The Housing (Private Rented Dwellings) (Amendment) Act, 1983 provided for the establishment of the Rent Tribunal, which is, of course, the Appellant in the present appeal. The Act took the rent-fixing function away from the District Court and conferred it on the Rent Tribunal. The Tribunal is “to perform the functions assigned by this Act.” (Section 2(1)). The Minister for the Environment appoints the members of the Tribunal, which is to consist of “a chairman and so many vice-chairmen and ordinary members” as the Minister “considers necessary from time to time for the performance by the Tribunal of its functions under this Act.” Under Regulations (Housing (Rent Tribunal) Regulations, 1983, S.I. 222/1983), the Tribunal sits in divisions of three to determine applications. One member of a division must have “knowledge of, or experience in, the valuation of property.”
Although, the Tribunal is to have a seal (section 4), it is not provided with any independent budget or staff, but the Minister “may from time to time appoint from among his officers so many person as he considers necessary to assist in the performance of its functions under this Act.” Section 21 of the Act provides that the “expenses incurred by the Minister in the administration of this Act shall be paid out of moneys provided by the Oireachtas.”
The Tribunal now performs the function formerly assigned to the District Court. The decision of the Tribunal is final and conclusive (section 12(3)) save that section 13(1) permits an appeal to the High Court on a question of law. The Minister may also, at the request of the Tribunal, refer a question of law to the High Court (section 13(2)).
The Facts and Judicial Review proceedings
The Respondents are the landlords and the Notice Party is the tenant of a controlled dwelling within the meaning of the Acts of 1982 and 1983. The rent had been determined by the Tribunal in 1995 at £300 per month. The Respondents applied in July 2000 to have a new rent determined by the Tribunal. The Tribunal on 12th December 2000 determined the rent at £500 per month, a figure below even the figure proposed by the tenant’s valuer. This surprising circumstance does not, however, concern the Court at this point, though it must, naturally, have had an impact on the return the Respondents obtained from the dwelling.
The Respondents had two principal complaints about the procedures followed by the Tribunal in the course of performing its task of fixing the rent and one concerning the form of the decision. The Respondents succeeded in their application for Judicial Review of the Tribunal’s decision. Finnegan J, as he then was, granted Judicial Review by way of certiorari of the decision of the Tribunal on the following grounds:
1. The Tribunal carried out an inspection of the premises in the presence of the Notice Party but in the absence the Respondents; Finnegan J found it unnecessary to decide whether the Tribunal’s indisputable failure to respect the right of the Respondents to be present (they had made their wish to be present abundantly clear) had resulted in any actual unfairness. He proceeded on the basis that justice must be seen to be done;
2. The Tribunal afforded the Respondents insufficient time to respond to the valuation report submitted by the Notice Party; in this respect, there was a clear and substantive failure to respect fair procedures; the Tribunal, having laid down a time limit for the receipt of valuation reports from both sides, with which the Respondents had complied, accepted a report from the Notice Party, which raised new issues about the condition of the premises, well outside the time; this report was received within days of the date the Tribunal had notified for the pronouncement of its decision, but the Tribunal refused the Respondents’ request for an adjournment and an opportunity to respond to the report; thus, it proceeded to determine the rent without giving the Respondents any fair opportunity to respond;
3. The Tribunal failed to give any or any adequate reasons, even when requested, for its determination; Finnegan J held that they should have specified, inter alia, their finding as to the “gross rent” and “the allowance for improvements.”
The damages claim and High Court Decision
The Respondents then sought damages suffered as a result of the invalid decision of the Tribunal. The Statement of Grounds presented at the time of the application for leave to apply for Judicial Review included as one of the reliefs sought: “damages……for breach of statutory duty, negligence and misfeasance in public office.” Finnegan J did not deal with the claim for damages, but the High Court order made on foot of his judgment gave liberty to the Respondents to apply in relation to damages. The question became whether, as a matter of law, the Tribunal is liable in damages to compensate the Respondents for the consequences of the invalidity of their decision of 12th December 2000.
The claim for damages was heard by O’Donovan J on the basis of affidavits and without oral evidence. It is his judgment of 16th May 2003 which is the subject of this appeal. Following a detailed and considered review of the principal authorities, he found in favour of the Respondents and awarded a sum of €5,817.15. His principal conclusion was:
“……when making the determination of 12th December 2000 [the Tribunal] owed to both the [Respondents] and the [Notice Party] ……… a duty to take reasonable care to insure that the said determination accorded with principles of law and that, in the event that it failed to do so and that, as a result of that failure, adverse consequences were suffered by either [party] then the [Tribunal ] is liable in damages to the injured party………………[T]he loss of rent suffered by [the Respondents] flowed directly from the [Tribunal’s] failure to comply with the principles of natural and constitutional justice and that it was foreseeable that such a loss would arise in the event of such non-compliance, and it also seems to me that the current state of the law in this country is that economic loss arising in such circumstances is recoverable by the injured party.”
The appeal
The Tribunal appealed the decision of O’Donovan J.
Counsel for the Tribunal, Mr Maurice Collins, Senior Counsel, submitted that the learned High Court judge had found in favour of the Respondents only on the basis of common law negligence. I think this is correct. Nonetheless, on the hearing of the appeal, Mr Michael Counihan, Senior Counsel for the Respondents, sought to argue a case of misfeasance in public office. He submitted that the courts have now recognised that the tort in question extends to cases of recklessness, referring to the decision of the House of Lords in Three Rivers District Council and others v Bank of England [2000] 2 AC 1. However, O’Donovan J found it “reasonable to conclude” that the Tribunal had not been “motivated by malice.” Mr Counihan was not able to put the matter beyond stating that the Tribunal had patently acted in breach of the rules of natural justice; the Tribunal was negligent in the extreme and this amounted to recklessness.
This argument misunderstands the nature of the recklessness to which, for example Lord Steyn referred in Three Rivers. Lord Steyn certainly recognised the possibility that recklessness in the exercise of public-law power might suffice to establish the tort, but he also said, at page 192, that “bad faith in the exercise of public powers … is the essence of the tort.” The sort of recklessness that will qualify as equating to malice is something much more than gross carelessness. It requires clear advertence to the risk (for example that there is no power to do the act) and not caring about the consequences. Objective recklessness is not enough. Geoghegan J, in his judgment in Kennedy v The Law Society (unreported 21st April 2005), accepted that recklessness could amount to malice but insisted that “subjective mala fides is an essential feature of” the tort. There is no evidence whatever of recklessness of that sort in the present case.
There has been no attempt to further the Respondents’ case on the basis of breach of statutory duty. Hence, the appeal is concerned with common law negligence.
Mr Collins submitted that, in order for the Tribunal to be liable in damages for negligence, it would have to be demonstrated that, over and above its public-law duties, which render the Tribunal liable to have its decisions judicially reviewed, it owed a duty of care in private law to the Respondents. In order to establish the existence of such a duty, it would be necessary for the claim to pass a three-part test: there would have to be a relationship of proximity between the parties such as the law has recognised; that it was foreseeable that damage would flow from want of care in the performance of the public duty; that it was fair and reasonable that the duty of care be imposed.
Mr Collins submitted, in effect, that the claim of the Respondents does not satisfy the test of proximity or, alternatively, that it is not fair and reasonable to impose the duty. He said that there is no decided case in which a duty has been held to be owed by a statutory body of the nature of the Tribunal. He cited very widely from the decided cases and I will refer to these in more detail. Perhaps most precisely, he submitted that the decisions of this Court in Siney v Dublin Corporation [1980] I.R. 400 and in Ward v McMaster [1988] I.R. 337 should be considered in the light of the qualifications apparent from Sunderland v Louth County Council [1990] I.L.R.M. 658. In that case a claim for damages for negligence failed. It was based on the failure of the planning authority to inspect the suitability of the ground for the development for which planning permission sought. The first two cases can be explained by the existence of a statutory scheme designed to protect the interests of particular groups of people who were unable to provide from their own resources the sort of protection the legislation was intended to provide.
Mr Collins also referred to the well-established immunity from suit of Judges (Deighan v Ireland [1995] 2 I.R. 57; O’Connor v Carroll [1999] 2 I.R. 160) and arbitrators (Sutcliffe v Thackrah [1874] A.C. 727).
Finally, and as an alternative to his main argument, Mr Collins submitted that the Respondents’ claim is for the recovery of pure economic loss, referring to the dictum of Keane C.J. on the subject in Glencar Exploration plc v Mayo County Council, at page 134. He submitted that, as a general principle, pure economic loss is not recoverable in negligence.
Mr Counihan supported the decision of O’Donovan J, stating that the Respondents were entitled to rely on the Tribunal to take reasonable care in the exercise of their statutory powers. Having regard to its history, the legislation applies to a specific and identifiable category of persons, namely both the landlords and tenants of controlled dwellings. Thus, in contradistinction with the situation in Glencar Exploration plc v Mayo County Council [2002] 1 IR 84 and Sunderland v Louth County Council, cited above, the duty of the Tribunal was not one merely owed to the public in general. In the cases of landlords, the legislation restricts constitutionally protected property rights. Thus, a failure of the Tribunal to act with due care should sound in damages in the same way as an action for damages for breach of constitutional rights. The Tribunal is sui generis and should not enjoy immunity from suit in the same way as planning authorities or other public bodies, as explained in Pine Valley Developments v Minister for the Environment [1987] I.R. 23. The parties before the Tribunal are members of a closed class of persons and are in a particularly close relationship with that body. There is no public interest in the amount of the rent fixed. It is a matter exclusively of interest to the parties.
The Respondents accept that, unlike the plaintiffs in Siney v Dublin Corporation and in Ward v McMaster, both cited above, they cannot claim to be persons unable to provide for themselves, but submit that, in the light of Blake v Attorney General, they are entitled to a measure of protection. They do not accept that the adjudicative nature of the Tribunal’s decisions is relevant: the Tribunal is bound to act fairly and with a reasonable measure of expertise. There is no justification for immunity (Desmond v Riordan [2000] 1 I.R. 505).
Finally, the Respondents support the conclusion of the learned trial judge that the fact that they seek to recover damages for pure economic loss does not prevent them from recovering. Also, towards the end of the hearing, Mr Counihan introduced a number of examples of cases where damages have been awarded for various wrongs committed. Principal among these was Philips v Medical Council [1991] 2 I.R. 115, where Costello J awarded damages for breach of statutory duty against the defendant for failure to determine within a reasonable time an application for registration as a medical doctor.
The authorities
The boundaries of the law of negligence will continue to be debated whenever the courts are asked to award damages in novel categories. The underlying principles are, nonetheless well established. They are:
· That there is a relationship of such proximity between the parties such as to call for the exercise of care by one party towards the other;
· That it is reasonably foreseeable that breach of the duty of care will occasion loss to the party to whom the duty is owed;
· That it is just and reasonable that the duty should be imposed.
In addition, as I will discuss later, the law has been slow to impose liability in negligence for damage consisting of pure economic loss. Whether there is a relationship of proximity is essentially one of fact. The court must look at the circumstances of the parties. Keane C. J., in his comprehensive treatment in Glencar, with which all members of this Court agreed, cited the memorable formulation by Lord Atkin in Donoghue v. Stevenson [1932] AC 562 at p. 580:
“The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
In all truth, it has proved very difficult to improve on Lord Atkin’s dictum. It underlies the thinking of our courts in the four leading Irish cases decided in recent years, which have been cited to us. All four cases concerned allegations of negligence in the exercise of statutory powers.
Siney v Dublin Corporation and Ward v McMaster lie on one side: they said that there was proximity and a duty of care. Sunderland v Louth County Council and, of course, Glencar fall on the other side and the plaintiffs lost.
The plaintiff in Siney became the tenant in a new block of flats built by Dublin Corporation, as it was then known, pursuant to its statutory powers as housing authority. Within two months water began to appear under the floor and fungus grew on the walls, all due to defective ventilation. This should have been discovered on inspection. The flat was unfit for human habitation. In addition to finding that there was an implied term in the letting agreement regarding the fitness of the dwelling, this Court unanimously held that the Corporation owed a duty of care at common law to the tenant. The two factors underlying this conclusion were that the flats were provided for persons of insufficient means to provide houses for themselves and that the defective ventilation was concealed, so that the incoming tenant could not have been aware of it and could not reasonably have been expected to discover it (see O’Higgins C.J. at page 415). Henchy J gave judgment to the same effect, stating at page 422 that “there was a proximity of relationship creating a general duty on one side and a justifiable reliance on the other side on the observance of that duty….”
Ward v McMaster concerned a local authority loan granted under section 39 of the Housing Act, 1966 and the regulations made thereunder. Regulations required the local authority, before making a loan, to satisfy itself as to the value of the house. The scheme it had adopted for the grant of loans was designed for persons unable to obtain loans from commercial agencies. The plaintiffs obtained a loan from the council to finance the purchase of a house, but had no professional survey carried out. The local authority engaged a valuer, who reported on the value, but they failed to engage anyone to carry out a structural survey. The house bought by the plaintiffs with the benefit of the loan turned out to be seriously structurally defective. Costello J, in the High Court, held that there was a relationship pf proximity between the plaintiffs and the local authority:
“They should have been aware that it was unlikely that the [first named] plaintiff (in view of his knowledge that they were going to value the premises and his very limited means) would not himself employ a professional person to examine it and so they should have known that if the valuation was carelessly done it might not disclose defects in the premises and as a result the plaintiff might suffer loss and damage.”
This reasoning also underlay the two judgments of Henchy J and McCarthy J on the appeal to this Court. Both held that there was a relationship of proximity. Henchy J, with whose judgment two other members of the court agreed, speaking of the regulations under which the local authority had acted, expressed the view at page 342 that a “paternalistic duty of that kind would not normally be imposed on a mortgagee in favour of a mortgagor…” He considered that the plaintiff was in a special position: “A borrower of that degree of indigency could not have been reasonably expected to incur the further expense of getting a structural survey of the house done.”
An attempt was made in Sunderland v Louth County Council [1990] I.L.R.M. 658 to apply the reasoning of these two cases to loss alleged to flow from the grant of a planning permission by a planning authority. The plaintiff purchased a house which had been built with the benefit of a planning permission granted by Louth County Council. Due to the unsuitable condition of the site, the house became uninhabitable. In an action for damages against the Council, McCarthy J, at page 663, speaking for a unanimous Supreme Court, distinguished the earlier cases, saying that they dealt with “provision in a social context for those who are unable to provide for themselves.” The role of the planning authority, on the other hand, was to act in “a watchdog role that is for the benefit of the public at large.” He concluded:
“The Act [referring to the planning acts] in conferring statutory powers on planning authorities imposed on them a duty toward the public at large. In my view, in conferring those powers, the Oireachtas did not include a purpose of protecting persons who occupy buildings in the functional area of the planning authorities from the sort of damage which the plaintiffs have suffered.”
The last case of the four is Glencar Exploration plc v Mayo County Council. That case concerned a provision included in the development plan for County Mayo prohibiting mining in a large area of the county. In earlier proceedings the High Court had held the mining ban to be invalid (Glencar Explorations plc and another v. County Council of the County of Mayo. [1993] 2 I.R. 237). The plaintiff, a mining company, had, to the undoubted knowledge of the defendant Council, spent a large amount of money prospecting for minerals in the areas affected by the mining ban pursuant to licenses granted under statutory powers. Having succeeded in having the mining ban set aside, the plaintiff sued the Council for damages. Keane C.J., speaking for a unanimous Court, held that the mining ban had been imposed for the benefit of the community as a whole. He contrasted this situation with Siney and Ward v McMaster, where each of the plaintiffs “belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them.” In the following conclusive passage, at page 141, Keane C.J. held that there was no relationship of proximity between the parties, though combining this conclusion with reference to the test of whether it was “just and reasonable” that liability should be imposed. He said:
“In considering whether such a relationship of “proximity” existed and whether it would be just and reasonable to impose a duty of care on the respondent, I think one also has to bear in mind that this was not a case in which it could reasonably be said that the applicants, in incurring the expense of their prospecting activities, could be said to have been relying on the non-negligent exercise by the respondent of its statutory powers. Their position is in contrast to that of the plaintiffs in both Siney v. Corporation of Dublin [1980] I.R. 400 and Ward v. McMaster [1985] I.R. 29; [1988] I.R. 337 where, in each case, they belonged to a category of persons for whose benefit a particular statutory framework had been created and who might reasonably be said to have relied on the local authority in each case taking reasonable care in the exercise of the statutory powers vested in them. The applicants in the present case could rely on no more than a general expectation that the respondent would act in accordance with the law which is not, in my view, sufficient to give rise to the existence of a duty of care.”
The former Chief Justice, as I have said, appears to combine his conclusion on “proximity” with the assessment of whether it would be just and reasonable to impose a duty of care. However, it is clear that he did not think that the necessary relationship of proximity existed between the plaintiffs and the planning authority. Essentially, the planning function must be exercised for the benefit of the public at large. A duty to consider the interests of a particular potential developer would potentially conflict with the duty to the public. By contrast, in both Siney and Ward v. McMaster, the performance of the duty to the plaintiffs, in each case to inspect properly, was in no sense in tension with a public duty. Rather it was consistent with and in support of the duty to look after the council’s own interests.
The learned trial judge in the present case, having noted that the damages claimed by the Respondents represented compensation for pure economic loss suffered by them stated that:
“However, while, from time to time, the courts in this country have paid lip service to the proposition that damages for an economic loss, as distinct from compensation for injury to person or damage to property, are normally not recoverable in tort, it is recognized that, in an appropriate case, damages for economic loss resulting from tort is [sic] recoverable.”
The learned judge went on to quote a passage from the judgment of Keane CJ on this question in Glencar, upon which the Tribunal relies. Having referred to the necessity, as a condition of liability to show a relationship of proximity, he spoke as follows, at page 134, on the question of economic loss:
“So too with the principle that no action for negligence lay in respect of purely economic loss. A major qualification of that principle was established in Hedley Byrne & Co. Ltd. v. Heller and Partners Ltd. [1964] AC 465 in the case of pecuniary loss caused by a negligent misstatement, but until the much discussed decision of the House of Lords in Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 AC 520 it remained the law in both England and Ireland that, negligent misstatement apart, no action in negligence lay in respect of such damage.”
Returning to this issue at page 143, the former Chief Justice said:
“I would expressly reserve for another occasion the question as to whether economic loss is recoverable in actions for negligence other than actions for negligent misstatement and those falling within the categories identified in Siney v. Dublin Corporation and Ward v. McMaster and whether the decision of the House of Lords in Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 AC 520 should be followed in this jurisdiction.”
It would be difficult to say that the Respondents in the present case do not satisfy the test of proximity taken in isolation. Both landlord and tenant come into a direct relationship with the Tribunal once the latter is asked to review and determine a rent. It has only those two parties in contemplation. I would not go so far as to accept the submissions of Mr Counihan that performance of the Tribunal’s function is exclusively of interest to the parties. There is a clear public interest in ensuring that rents generally are fairly set and that the law is properly interpreted in doing so. That is confirmed by the power of the Minister to refer a point of law to the High Court, at the request of the Tribunal. Nonetheless, in reality, the only parties with a direct and real interest in the outcome of the proceedings of the Tribunal are the landlord and the tenant respectively.
I do not find any support for the exclusion of proximity from the fact that the Tribunal performs an adjudicative function. The case law on that subject, whether in the sense of the immunity from suit of judges or arbitrators proceeds from considerations of public policy. None of those cases states that there is no sufficient proximity between a person damnified by a judicial or quasi-judicial decision and the person making it. On the contrary, it seems that historically, in English law, while judges of the superior courts were immune from suit, those of inferior courts were not. To quote Lord Denning M.R. in Sirros v Moore [1975] 1 Q.B. 118, a judge of an inferior court who went outside his jurisdiction “was liable to an action for damages, even though he made an innocent mistake of law in so doing.” More relevant for present purposes is the decision of the House of Lords in Arenson v Arenson [1977] A.C. to the effect that the immunity of judges and arbitrators was an exception to the general rule that there should be liability for negligence and that there was no reason of public policy for extending to valuers appointed by mutual agreement to value property. The immunity of judges at least flows from considerations of public policy.
Consequently, I have come to the clear conclusion that the Respondents claim cannot be defeated for lack of a relationship of proximity between the Respondent and the Tribunal.
It has not been suggested on behalf of the Tribunal that it was not foreseeable that want of care on the part of the Tribunal would cause loss to the Respondents. Accordingly, it remains to consider the third question, namely whether it is just and reasonable that liability be imposed.
There is a difference of emphasis between the respective dicta of McCarthy J in Ward v McMaster and Keane C.J. in Glencar Exploration plc v Mayo County Council. In the former case, at page 349, McCarthy J said:
“Whilst Costello J. essentially rested his conclusion on the “fair and reasonable” test, I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”
However, at the end of his judgment, McCarthy J found it possible, at page 352, to decide the case “…without entering into the question of whether or not it is “just and reasonable” to impose the duty…” Henchy J, at page 342, rather than positively stating that it would be just and reasonable that liability be imposed expressed the converse conclusion that it would be“unconscionable and unfair…” for the council to be allowed to escape.
Keane C.J. considered this issue very fully in Glencar. Having reviewed a number of authorities, some of which are expressly mentioned in the passage I am about to quote, he said:
“It seems to me that no injustice will be done if they [plaintiffs] are required to take the further step of considering whether, in all the circumstances, it is just and reasonable that the law should impose a duty of a given scope on the defendant for the benefit of the plaintiff, as held by Costello J. at first instance in Ward v. McMaster [1985] I.R. 29, by Brennan J. in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424 and by the House of Lords in Caparo plc. v. Dickman [1990] 2 AC 605. As Brennan J. pointed out, there is a significant risk that any other approach will result in what he called a “massive extension of a prima facie duty of care restrained only by undefinable considerations …”
In reaching that conclusion, Keane C.J. accorded particular weight to the approach in England as summed up by Lord Bridge in Caparo plc. v. Dickman, mentioned above, at p. 617:-
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.” (emphasis added)
There was some discussion at the hearing of the appeal as to whether the test of liability being “fair and reasonable” was the same as whether there was an immunity based on grounds of public interest. I believe that there is a difference. Immunity from suit, where it has been held to exist, normally proceeds from overriding considerations of public interest. Foreign sovereign States have been held to be immune from the jurisdiction of our courts (McElhinney v Williams [1996] ILRM 276). Witnesses in legal proceedings are absolutely immune from suit in respect of the evidence they give (see discussion in McMullen v McGinley, Supreme Court unreported, 15th March 2005 per Fennelly J). The immunity of judges is based on public policy considerations ( See Morris P in Desmond v Riordan [2000] 1 I.R. 505). Formerly, barristers enjoyed complete immunity from suit by their clients in respect of their conduct of proceedings. All of these are or were examples of general immunity granted a priori on grounds of public policy. The immunity is available even where all the elements of a tort are otherwise established.
The alternative formulation, namely whether it is just and reasonable that liability be imposed, on the other hand, asks whether the duty exists. It is a threshold question. It is also a more flexible formulation. It is more adaptable to the many circumstances presented in litigation and preferable for cases such as the present. This test has been adopted in most of the modern English cases, as it was by Costello J in his judgment in Ward v McMaster, and, finally, by Keane C.J. in Glencar. I also applied it in my judgment in Breslin v Corcoran [2003] 2 IR 203, with which Denham J and Murray J, as he then was, agreed. That decision was not, however, cited on the hearing of the present appeal. It did not concern the performance of statutory powers. I would emphasis that it is necessary to consider all the relevant circumstances of the case.
The duty of the Tribunal to determine a fair rent is owed, as a matter of public law, to both landlord and tenant. While this may not be determinative, it is an important element and distinguishes the case from Siney and Ward. In neither of those cases was the duty owed to the plaintiff in tension with a duty owed to another person or body. In both of those cases, the remedy in damages was the only possible remedy for the loss suffered. Each plaintiff relied on the defendant to perform a function which he or she was unable for financial reasons to perform for him or herself. Without the remedy in damages, each plaintiff would have been left without redress.
The landlord and the tenant before the Tribunal are in a quite different situation. Either the landlord or the tenant may, pursuant to section 13 of the Act, appeal on a point of law to the High Court within three months of the determination by the Tribunal. This remedy necessarily implies that the Tribunal should, as Finnegan J held, give a reasoned decision. That procedure will enable either party to have a review of the correctness of the legal approach adopted by the Tribunal.
Furthermore, either party may, as occurred in this case, obtain redress by way of Judicial Review. This remedy which extends to cases where the determination is unreasonable in the sense of the decisions of this Court in O’Keeffe v An Bórd Pleanála [1993] 1 I.R. 39 and Keegan v Stardust Compensation Tribunal [1986] I.R. 642. In the present case, the Respondents complained that the Tribunal fixed a rent significantly below that suggested in the valuers’ reports submitted by the parties. Although it did not ultimately become necessary to decide the issue, this might well have formed the basis of a distinct ground for Judicial Review. The Tribunal must act on the basis of the submissions of the parties. It would be difficult to defend a decision fixing a rent outside the parameters of the valuations submitted by the opposing parties.
Thus, by way of Judicial Review, either party has the right to apply to have a decision set aside and a new determination made. Finally, the tort of misfeasance in public office is available in the admittedly rare event that the decision can be shown to have been actuated by actual malice or mala fides.
There remains, admittedly, the possibility, as in the present case, that loss will be suffered by one party during the period necessary to have a first irregular decision rectified. The issue here is whether it is just and reasonable to impose liability. Damages, as is now well established, do not flow from the mere invalidity of a decision. (see, in particular, the dictum of Finlay CJ in Pine Valley Developments v Minister for the Environment [1987] I.R. 23; Glencar, already cited, per Fennelly J at page 148; Kennedy v Law Society and others, Supreme Court unreported 21st April 2005, per Geoghegan J). The gist of the claim is not, therefore, that the Tribunal has made an invalid decision. It is that it has committed a breach of a duty of care. But none of the headings under which Judicial Review was granted by the High Court have any necessary connection with the loss claimed. Both the failure to allow the Respondents a fair opportunity to be present at the inspection and the failure to adjourn the making of a decision to allow them to respond to the Notice Party’s valuation report are procedural failures, with no necessary link to the loss suffered. Finnegan J could not determine that there had been any actual unfairness. The essence of the loss alleged by the Respondents is that an unduly low rent was fixed and that the Respondent suffered loss of rent from the time of the original decision until a new decision was made. The failure to give reasons postdates the decision and is not causally linked.
Thus there is no necessary causal link between the failure to respect fair procedures and the losses claimed by the Respondents. But the Respondents say that the Tribunal was negligent insofar as it followed unfair procedures and that they suffered loss as a result.
The Respondents, in justifying the High Court award, must necessarily be driven to argue for the larger proposition that the Tribunal, when fixing a rent, owes a general duty of care exposing it potentially to liability in damages to either party, not merely for following unfair procedures, but also generally for lack of care when determining the amount of the rent —to the landlord, if the rent is too low; to the tenant if it is too high. As I have already said, either party will have a remedy of Judicial Review where the rent fixed is so unreasonable as to be irrational. The loss in a case such as the present will essentially consist of the consequences of delay. If such loss is recoverable, however, it is difficult to see why a landlord or tenant should be denied a remedy in damages for the negligent fixing of an unduly high or low rent respectively. It would require compelling reasons to impose liability for this kind of loss on a public authority such as the Tribunal. The Tribunal is necessarily required in every case to make a choice between conflicting submissions as to the amount of the rent. If a Tribunal were exposed to potential claims from either landlord or tenant where it favoured the submission of one over the other, it might tend towards compromise in every case. I believe that the independence of the Tribunal would potentially be compromised by the existence of such a remedy. As counsel for the Tribunal has pointed out, the imposition of such liability on the Rent Tribunal, would have implications for a wide range of public bodies performing adjudicative functions. For present purposes, the most closely analogous cases are of those bodies which determine, as between contending parties, amounts to be paid as purchase money or for compensation, such as the property arbitrators, the Employment Appeals Tribunal or An Bórd Pleanala.
It is not, I believe, necessary to review the law regarding the immunity of judges, though I have already mentioned the decision of the Court of Appeal in England in Sirros v Moore. This heading of immunity has been considered by the High Court in Deighan v Ireland [1995] 2 I.R. 56 and Desmond v Riordan [2000] 1 I.R. 505. A more directly relevant authority may be the English Court of Appeal decision in Jones v Department of Employment [1989] 1 Q.B. 1, where a social welfare adjudication officer was held not to be liable in negligence. Glidewell L.J. said at page 22:
“Having regard to the non-judicial nature of the adjudication officer’s responsibilities, and in particular to the fact that the statutory framework provides a right of appeal which, if a point of law arises, can eventually bring the matter to this court, it is my view that the adjudication officer is not under a common law duty of care.”
The decision in Jones v Department of Employment did not turn directly on the adjudicative character of the decision. However, arbitrators were generally considered to be immune from suit in negligence in England prior to the introduction of statutory immunity by section 29 of the Arbitration Act, 1996. The distinction made by the House of Lords in Arenson v Arenson, already cited related to a valuer engaged to fix a price to bind two parties by agreement. Such a valuer would not be immune from suit. The majority of the House of Lords accepted, by contrast, that an arbitrator would be immune. This seems implicit in the speech of Lord Simon of Glaisdale, pages 424 to 425, Lord Salmon at page 436 and Lord Fraser of Tullybelton at page 441. In giving his reasons for declining to strike out the claim against the defendants, Lord Salmon said that it would be open to the respondent at the hearing of the action “to show that their role was a judicial one……so that they were appointed arbitrators………If the respondents succeed in this, they can claim immunity.” I think the Rent Tribunal performs a role akin to an arbitrator. The fact that it was assigned a task formerly performed by the District Court tends to confirm the judicial character of its decisions.
Whether it would be just and reasonable to impose a duty of care sounding in damages for negligence on the Tribunal should be considered having regard to all the circumstances of the particular relationship. The need for a remedy in damages must take account of the extent of other available remedies and the nature of the loss alleged. I have already mentioned that each party has a potential remedy by way of appeal on a point of law to the High Court, the full range of remedies by way of Judicial Review to correct errors of law or procedure made by the Tribunal, including, in extreme cases, determinations of the amount of rent, and finally the remedy of misfeasance in public office in the admittedly rare cases where actual malice or recklessness amounting to malice can be established. In this situation, the possibility of severe irremediable loss is limited.
Against this background, I believe that two considerations work against the imposition of liability. Firstly, this does not appear to be the sort of case of reliance on the behaviour of the other party which would justify departure from the normal reserve in respect of damages for pure economic loss. In both Siney and Ward v McMaster, the Court found that the plaintiff had relied on the local authority to perform a particular function. Secondly, I believe the Tribunal performs a role akin to that of an arbitrator; the existence of a remedy in damages might tend to compromise the independence of the Tribunal by inhibiting its judgement in performing its essentially adjudicative role.
Geoghegan J agrees that the appeal should be allowed. However, he proceeds on the broader basis that statutory tribunals such as the Rent Tribunal enjoy immunity from suit in negligence at common law. This immunity would be based on an analogy with the immunity of judges as described in the speech of Lord Kilbrandon in Arenson v Arenson, cited above and the judgment of Lord Denning M.R. in Sirros v Moore. I see great force in these arguments. Indeed, as Geoghegan J points out, they overlap to a significant extent with my own reason for finding the Tribunal not to be liable. However, I hesitate to go so far, certainly on the facts of this case.
I believe that both the material and the personal scope of any immunity would need very careful consideration.
I would, therefore, restrict myself to stating that I do not consider it just or reasonable to impose liability on the Tribunal in negligence in the circumstances of this case. I would, therefore, allow the appeal, set aside the order of O’Donovan J and substitute an order dismissing the Respondents’ claim for damages.
Judgment of Mr Justice McCracken delivered on the 21st day of October 2005.
___________________________________________________________
I have had the benefit of reading in draft the judgment handed down by Fennelly J and it is unnecessary for me to deal further with any of the factual elements of the case. I am in full agreement with his conclusion that there is sufficient proximity between the Respondents and the Appellant, for the reasons he has set out, to satisfy the test of proximity necessary to constitute the tort of negligence. I also agree that a further element of the tort of negligence is that it should be “fair and reasonable” that liability should be imposed, and that in the present case that test is not satisfied.
I would, however, wish to comment on what is in my view the basis upon which it would not be fair and reasonable to impose liability in the present case.
There has been some confusion in this case as to whether, quite apart from the question of it being fair and reasonable that liability should be incurred, there may also be a separate basis upon which liability cannot arise, namely that of immunity based on public policy. The Appellant is a creature of statute, and it was always open to the Oireachtas to provide specifically in the legislation setting up the Appellant that the Appellant should be immune from liability in respect of its conduct of its hearings or in respect of its decisions. The Oireachtas chose not to take that course.
Before considering the authorities on the question of immunity, I should express my strongly held view that the Appellant is not merely a body which adjudicates on a dispute between the parties before it. The relationship of landlord and tenant in all its aspects has been the subject of evolving legislation for over a century. Parallel to and complimenting such legislation has been the provision made by the State for housing owned by public bodies such as local authorities. Legislation relating to the private sector has changed over the years in accordance with the social needs of the time, but has always sought to balance the requirements of citizens to be housed against the property rights of landlords. The Courts have also played a leading role in such balancing exercise as, for example, in the decision in Blake & Ors v Attorney General [1982] IR 117. The setting up of the Rent Tribunal under the Housing (Private Rented Dwellings)(Amendment) Act 1983 was part of the continuing process of regulating the relationship between landlord and tenant. This relationship does not enure solely for the benefit of individual landlords and individual tenants, but rather in the public interest that there should be proper control of housing in all its aspects.
In Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23, Finlay CJ quoted with approval a passage from the speech of Moulten LJ in Everett v Griffiths [1921] 1 AC 631 at page 695 as follows:-
“If a man is required in the discharge of a public duty to make a decision which affects by its legal consequences the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is, in my opinion, a fundamental principle of our law that he is protected. It is not consonant with the principles of our law to require a man to make such a decision in the discharge of his duty to the public, and then to leave him in peril by reason of the consequence to others of that decision, provided he has acted honestly in making that decision.”
Finlay CJ then added his own comment at page 38 of the Pine Valley decision as follows:-
“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.”
That passage might seem to suggest that any immunity on the basis of public policy would only arise in the absence of negligence, and would seem to treat the question of immunity quite separately. This passage was quoted with approval by Keane CJ in Glencar Explorations Plc & Anor v Mayo County Council (No 2) [2002] 1 IR 84, no comment was made on the words “without negligence”. Instead, Keane CJ said at page 128:-
“I am satisfied that those considerations also apply to the present case. The remedy available to persons affected by the commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned decision and not an action for damages, to allow which, in the case of public officials, would be contrary to public policy for the reasons set out by Finlay CJ in the passage just cited.”
Notwithstanding this, it was held by this Court in the Glencar Exploration case that the decision by the defendants in that case was in fact made negligently in the sense that the respondent did something which no reasonable authority would have done. Effectively, Keane CJ found in that case that there had been negligence in the sense of lack of care, but that there was no duty of care. I prefer the approach of Fennelly J who in the course of his judgment in the Glencar case, after quoting the findings of the learned trial Judge in that case, said at page 154:-
“This approach, by making findings of negligence before determining whether a duty of care exists, risks reversing the correct order of analysis. … The elements of the tort of negligence are the existence of a duty of care, lack of proper care in performing that duty and consequential damage. The lack of care which we commonly call negligence consists in commission or omission of acts. In order to be actionable, the acts or omissions must be such as will reasonably foreseeably cause damage to any person to whom the duty is owed. Mere causation is not enough. As a matter of principle, it seems to me that the failure to exercise due care can only be established by reference to a recognised duty.”
While it is often expressed that the question should be asked whether it is just and reasonable that there should be liability imposed for certain actions, it seems to me that the more correct approach is to ask whether it is just and reasonable that there should be a duty of care, which, as Fennelly J points out in the passage just quoted, is one of the basic elements of the tort of negligence. What can be gleaned from the various decisions is that there are circumstances in which, for reasons of public policy, it would not be just and reasonable to impose a duty of care. What is to be considered as just and reasonable is not merely what would be just and reasonable as between the parties, but also what would be just and reasonable in the public interest. Where a public body, such as the Appellant in the present case, performs a function which is in the public interest, then in many cases, and I believe this to be one of them, that body ought not to owe a duty of care to the individuals with whom it is dealing. It is in the public interest that it should perform its functions without the fear or threat of action by individuals. The fact that it is performing a function which is in the public interest may outweigh any duty of care to private individuals. Whether it does or not, of course, is a matter for decision based on consideration of the position of any particular public body.
Arguments were addressed to the Court based on the general principles relating to the duty of care as set out in Siney v Dublin Corporation [1980] IR 400 and Ward v McMaster [1988] IR 337. Those cases dealt with the general liability of certain public bodies to individuals with whom those bodies were dealing on a one to one basis. In my view they are of limited application in the present case, save in relation to very general principles. The Appellant here was not just dealing with one individual or set of individuals, namely the Respondents, but was determining the conditions of the relationship between the Respondents and the Notice Party.
It is instructive to note that under regulation 6(6) of the Housing (Rental Tribunal) Regulations 1983, which were made under the 1983 Act, it is provided that the Chairman of the Appellant when determining the membership of a division of the Appellant to hear any particular case “shall, insofar as it is practicable, appoint as a member of the division a person who has knowledge of, or experience in, the valuation of properties”. It is clear, therefore, that while it was considered desirable that there should be one member of a particular division hearing any particular appeal who might be classed as an expert, there was no requirement that the majority of the members in any particular case should be experts. The Appellants, in determining any case, are acting more in the nature of arbitrators than of experts. While they are not judges, and therefore cannot be acting in a strictly judicial capacity, nevertheless their function is adjudicative. Where a body set up by statute performs an adjudicative function between citizens, in any particular case this is a factor which must strongly influence the determination of whether it is in the public interest that such a body should owe a duty of care.
I do not think it is correct to say that it is public policy to grant immunity to all such bodies in the absence of immunity being granted by statute. Nor do I think that such immunity is a matter of common law, save in so far as the tort of negligence is a matter of common law. I do not believe that there can be a general common law principle of immunity for statutory bodies such as the Appellant in all cases in the absence of mala fides or misfeasance in public office. Absolute immunity is a matter for the legislature which created these public bodies. However, public policy or considerations of the common good are clearly very important factors in determining whether it is just and reasonable that a duty of care should exist in any particular case, but they are not the only factors. Other considerations would include the nature and functions of the particular body, the nature and expertise of its members and the extent to which there is a public policy element to the nature of its decisions, to name just a few. In the present case I have no doubt it would not be fair and reasonable to impose liability, taking these considerations into account.
Accordingly, I also would allow this appeal and dismiss the Respondent’s claim for damages.
Weir v Corporation of Dun Laoghaire
1982 No. 15
Supreme Court
20 December 1982
[1984] I.L.R.M. 113
(O’Higgins CJ, Griffin and Hederman JJ)
20 December 1982
O’HIGGINS CJ
(Hederman J concurring) delivered his judgment on 20 December 1982 saying: This is an appeal against a jury’s verdict awarding damages to the plaintiff. The appeal rests on two submissions made by the defendants. In the first place they contend that the trial judge ought to have withdrawn the case from the jury because there was no evidence that the interference with the roadway which caused or contributed to the plaintiff’s injuries was either authorised or permitted by them. Secondly, they claim as an alternative, that the case ought to have been withdrawn from the jury because there was no evidence of negligence.
I propose to deal in the first instance with the second ground of appeal. The evidence establishes that on the Sunday morning of the accident the plaintiff who was an elderly lady was, in the company of her husband, crossing the road at Royal Marine Road, Dun Laoghaire. She was proceeding from Dun Laoghaire Church towards a new shopping centre on the far side of the road. As she neared the side to which she was proceeding she tripped, fell and suffered injuries. There was evidence that the cause of her fall was a difference in road levels of two inches or more along a line where a new layby for buses *115 was been constructed. No warning of this difference in level was given and the entire roadway which was tarmacadam, appeared uniform. I am quite satisfied that on these facts it was proper that the case should have gone to the jury on the issue of negligence. The jury having found negligence I do not think that such finding can be disturbed.
As to the first ground it appears that the difference in road levels which caused or contributed to the plaintiff’s fall and injuries came about in the following circumstances. A company called MEPC (Ireland) Ltd sought planning permission from the defendants as the planning authority under the Local Government (Planning and Development) Act 1963 for the development of a site along Marine Road as a shopping centre. Permission was obtained from the defendants as the planning authority on 12 December 1973 but an appeal was logded by an objector. The appeal was decided and final planning permission granted by the Minister for Local Government on 21 August 1973. A condition of this permission was that a bus layby be provided by the developers, if required by the planning authority, on Marine Road. When the building of the shopping centre was completed a firm of contractors called John Paul & Company proceeded to erect or construct a bus layby along Marine Road. This involved considerable interference with the roadway and adjoining footpath. The layout of this bus layby was agreed with the defendants. This appears from the evidence of their assistant borough engineer. In addition, from his evidence it appears that the carrying out of the work was known to the defendants. From these facts it can fairly be inferred that the provision of the bus layby had been required by the defendants as the planning authority and that the work was carried out by John Paul & Company on behalf of the developers and with the knowledge and approval of the defendants as the planning authority.
The defendants maintain that as the highway authority under the Local Government Act of 1925 they are not to be fixed with knowledge or made liable in respect of any licence or approval which they might have or may have given as the planning authority under the Local Government (Planning and Development) Act 1963. I do not accept this submission. I am satisfied that the defendants must be held to have known and to have approved of the work undertaken by John Paul & Company. Even if the work was authorised originally by the defendants solely as the planning authority this does not mean that as the highway authority they cannot be regarded as having knowledge thereof. Whatever was done was clearly done with their knowledge and they had a responsibility to look to the safety of those using the roadway, who might thereby be exposed to danger if what was done caused risk of injury. In my view, the grounds upon which this appeal has been moved fail and this appeal should be dismissed.
GRIFFIN J:
The facts are set out in the judgment of the Chief Justice. On those facts, the plaintiff is entitled to succeed against the person who created the danger on the highway — for danger it was to pedestrians such as the plaintiff. The work in this case was, however, not carried out by nor was the danger created by the defendants.
*116
The defendants are the highway authority charged with the repair and maintenance of the roads (including footpaths) in Dun Laoghaire pursuant to Part III of the Local Government Act 1925, and they are sued as such. It is well settled that, as such authority, although they are not liable to a user of the highway for injuries suffered or caused by want of repair (non-feasance), they are liable in damages for injuries suffered by such user if they or their servants, or those for whose acts they are responsible, have been negligent in doing repairs to or in interfering with the highway (misfeasance). Where the interference with the highway is done by their servants, no difficulty arises. Where the work is carried out by an independent contractor engaged by them to do the work, although they are not responsible for the casual or collateral negligence of the contractor, they are liable if their contractor fails to take reasonable precautions to protect the users of the highway from danger which, from the nature of the work, is likely to be caused to them. The authority which has undertaken the work cannot escape responsibility by delegating the performance of the duty imposed on them to the contractor.
If, therefore, in this case the defendants had undertaken the work in question, and the two inch difference in level had been causd by their servants or by a contractor engaged by them to carry out the work, they would be clearly liable in damages to the plaintiff. That however was not the position.
In the High Court and on the hearing of this appeal the case made on behalf of the plaintiff was that because the developers of the shopping centre obtained planning permission for the development, which included the construction of a bus layby on Marine Road, the lay out of which had in advance been agreed with the defendants, and because the defendants were aware that work was being carried on by the contractors engaged by the developers, the work being carried out had been ‘authorised’ by the defendants, and that they were liable for any negligence of such contractors in carrying out the work, and in particular in failing to warn of or guard against the danger on the highway on the occasion of the accident.
The learned trial judge accepted this submission and ruled accordingly. In my opinion, his ruling was incorrect — so to extend the liability of a highway authority to include responsibility for the acts of a contractor engaged by a developer in doing work for which the latter had obtained planning permission, and equating this liability with that of the authority for acts of a contractor engaged by them, is in my view warranted neither by principle nor authority. Indeed, all the cases cited in the High Court and referred to in the ruling of the trial judge were cases in which the work had been carried out to the highway by the highway authority. In this Court, counsel were unable to refer to, nor have I been able to find, any case in which liability attached to a highway authority by reason of the granting of planning permission for the work being carried out.
Although the plaintiff is entitled to be compensated in damages for the injuries suffered to her in this accident, in my judgment she is not so entitled as against the present defendants. I would accordingly allow the appeal.
Breen v Governor of Wheatfield
[2008] I.E.H.C. 123
JUDGMENT of Mr. Justice Gilligan delivered on the 11th day of April, 2008
1. The background circumstances to this case are that the plaintiff who was born on the 19th day of May, 1977, and is unemployed, was lawfully incarcerated at Wheatfield Place of Detention, when on the 16th day of January, 1999, at approximately 6.30p.m. in the recreation area of landing 4G a fellow inmate poured a bucket of boiling water over him causing him very significant personal injuries involving burns to almost his entire back, neck, left hand, upper anterior chest and neck which injuries required extensive hospitalisation and treatment and resulted in the plaintiff suffering very severe and extensive scarring to his back and upper body and psychological injury. The case brought by the plaintiff against the defendants’ is clearly set out in the pleadings to the effect that Mr. Daly, the fellow inmate who poured the bucket of boiling water over the plaintiff, was in effect allowed to do so by the prison authorities or that alternatively the prison authorities were negligent and in breach of duty in allowing Mr. Daly attack the plaintiff. In particular it is alleged that knowing that the plaintiff was about to be assaulted the prison authorities did not take any or any adequate steps to prevent the assault.
2. The background scenario appears to be that on a previous occasion on a Dart train travelling in the South of the City of Dublin, the plaintiff using a Stanley knife cut the throat of Mr. Daly’s cousin who was a student at the time. Charges had been brought against the plaintiff but had at an earlier Court sitting been struck out and that was the situation that prevailed on the 16th of January, 1999, when this assault took place. Subsequently the charges were re-entered in relation to the incident on the Dart train and the plaintiff pleaded guilty and was sentenced to a term of eight years imprisonment.
3. It is of some significance that prior to the incident in January, 1999, the plaintiff had spent a very significant period of time of the previous eleven years in and out of prison for various offences. I am satisfied that at the time of this incident he was well acquainted with prison life and the rules and regulations pertaining to same.
4. The plaintiff appears to have come into contact with Mr. Daly in Wheatfield a few months prior to January, 1999, and the plaintiff alleges that Mr. Daly indicated to him that his uncles would take care of the plaintiff when he was released from prison at the expiry of the sentence which he was then serving. The plaintiff also refers to altercations with Mr. Daly and has given evidence that he was in fear for his own safety by reason of a perceived attack by Mr. Daly upon him. The plaintiff has given evidence that he was advised by a fellow prisoner whose name he did not know, but who was from Kerry that Mr. Daly was going to get him with a home made weapon. The plaintiff has given evidence that he made complaints to Governor Riordan, Governor Treacy, Officer Carroll in the workshop, Officer Baker and Officer Dowd that he was in fear for his safety by reason of a perceived attack upon him by Mr. Daly.
5. The plaintiff alleges that there was particularly bad feeling between himself and Officer Dowd, that they were continually using abusive and foul language to one another and that the plaintiff had made a complaint to the Governor as regards post not being delivered to prisoners by Officer Dowd and that as a result of having been threatened by Officer Dowd the plaintiff withdrew his complaint. Further the plaintiff alleges there was an incident in his cell involving Officer Dowd when he removed a number of pictures of the plaintiff’s children from the wall of the cell and this led to an altercation whereby the plaintiff says he grabbed Officer Dowd and threatened to cut his throat. In general the plaintiff says that relations between himself and Officer Dowd were particularly bad.
6. The plaintiff makes a specific allegation that a few months prior to the incident occurring he attended with Governor Riordan and told him he was in fear for his personal safety from Mr. Daly. He says that there was a disagreement between the two of them and Governor Riordan punished the plaintiff with two days lock up.
7. In general terms the plaintiff has given evidence that he made complaints as regards his personal safety and a likely attack by Mr. Daly upon him to Governor Riordan, Governor Treacy, Officer Carroll who was in charge of the work shop, Officer Dowd and Officer Baker and that generally all these officers were aware that he was in fear of his personal safety.
8. On the morning of the incident itself, the plaintiff at his own request met with the Visiting Committee. His complaints were that his landing was being run unfairly and that he was not getting the prescribed number of phone calls. He also complained that staff had assaulted prisoners on his unit, and he said he was anxious to be transferred to another landing. The plaintiff made no complaint, either specifically or even in very general terms of being in any way in fear for his personal safety by reason of a perceived attack. His explanation in this regard, in the context of a meeting with the Visiting Committee, is that he would have been perceived as a rat within the prison system had he made such a complaint.
9. The plaintiff’s request for a transfer was in fact dealt with within a few hours of his meeting with the Visiting Committee, but on the plaintiff’s evidence he did not get the transfer to his requested landing. He was anxious to go to 1F and the reason he says he gave in this regard was because prisoners who worked in the kitchens were mostly housed on landing 1F. In fact the transfer the plaintiff got was to 4G and was an area where he was likely to come into contact with Mr. Daly.
10. The plaintiff says that he complained in this regard to both Officer Dowd, who was the person to bring him across from his previous landing to area 4G and Officer Baker who was in charge of landing 4G at the time of the plaintiff’s arrival, sometime around 2.00p.m. on the afternoon of the incident and Officer Baker was in the plaintiff’s company through until his tour of duty ended at approximately 5.00p.m.. The plaintiff has given evidence that Officer Dowd told him on his transfer across to landing 4G “to watch his back because he was in for a big surprise”.
11. Furthermore, the plaintiff has given evidence that on arrival on landing 4G and being allocated a vacant cell he had a conversation with Officer Baker in which he detailed to him his fear of being on landing 4G because he would come into contact with Mr. Daly. The plaintiff says that he stayed in his cell on his new landing for the afternoon and was in fear because he realised that he was going to come in direct contact with Mr. Daly, who had access to the same recreational area, but that at around 6.00p.m. he decided to go to the recreational area and take his chances.
12. The general layout of the recreational area 4G is that when one enters there is a control room immediately on the left and further down the recreational area to the left there is a pool room. Immediately to the right of the entrance is a chair, a table and a boiler with boiling water whose primary use would be for hot drinks and further to the right a number of sinks. There is then a long rectangular room down to a sluice room and lock up closet, described as the cleaner’s room and on the wall of this area facing back down the room is a television. There are sixteen prisoners to a landing and at the time of the incident there would have been approximately eight prisoners in the general vicinity including the plaintiff and Mr. Daly. There was an officer in the control room and Officers Duffy and Farrelly were at the end of the recreation area where one enters, in the general vicinity of the control room.
13. Towards 6.00p.m. the plaintiff went into the recreational area and sat down beside a fellow inmate whom he knew and began to watch television. He saw Mr. Daly when he first walked into the recreational area as he was in the pool room. Subsequently, Mr. Daly came in and sat down in front of him but the plaintiff took no heed of him. He was approximately twelve feet away from him. He did not anticipate any difficulty and was happy watching T.V. He was aware that there were two prison officers in the immediate vicinity outside the control room behind him and there was one officer in the control room itself. He had no reason to suspect that Mr. Daly would attack him in any way and the fellow inmate, who was from his own area, was beside him and there was also an inmate present, who was a distant relative and he thought he was safe. He accepts that he did not expect Mr. Daly to scald him and that while Mr. Daly was in his general vicinity he had felt comfortable. He thought nothing of Mr. Daly going to get the bucket and he did not think that Mr. Daly would attack him in the recreational area. He thought that if he was going to be attacked it would happen in his cell. He accepts that the prison officers in attendance could not have known that he was going to be attacked by Mr. Daly on the occasion in question in the recreational area.
14. Having been attacked by having the bucket of boiling water thrown over him from behind, the plaintiff says that the two prison officers who were outside the control room ran leaving him at the mercy of Mr. Daly who proceeded to kick and punch him as he lay on the floor and that subsequently a number of prison officers came back into the room after approximately two minutes and rescued him.
15. Subsequent to the incident the plaintiff was visited by a Garda O’Hara, who was the investigating Garda and he gave a statement on the 23rd January, 1999, which he signed and in which he described the incident and stated “I don’t know why this happened”.
16. The plaintiff was very evasive as regards this statement indicating that he believes that he may have made a statement in Wheatfield subsequent to his return there from the hospital.
17. There was no indication by the plaintiff to Garda O’Hara that the prison authorities were aware that he was going to be assaulted or allowed the assault to take place or failed to take any, or any adequate precaution for the plaintiff’s safety and welfare on the occasion in question.
18. The plaintiff having been detained in hospital for approximately four weeks then returned to Wheatfield and accepts that he made no formal complaint to any person in authority within the prison service as regards the background circumstances to the assault, other than a generalised statement that it was the fault of the authorities because he had been allowed to come into contact with Mr. Daly.
19. I am satisfied from the evidence adduced that the plaintiff and Mr. Daly had come into contact several times prior to the actual incident occurring on the 19th day of January, 1999, and that if Mr. Daly had wished to attack the plaintiff he would have had opportunity to do so, bearing in mind that when he eventually did so, he was in the presence of and within a very short distance of three prison officers.
20. The plaintiff never made any subsequent complaint as regards the alleged general background circumstances to his assault to the Visiting Committee, notwithstanding that, despite his subsequent transfer he was an inmate in Wheatfield for the best part of a further year.
21. The plaintiff says that Officer Dowd said to him following his return to Wheatfield words to the effect that he knew that the plaintiff was going to get done and that “I got you done once, I’ll get you done again”.
22. In correspondence involving several letters following the plaintiff’s return to Wheatfield, he sought a transfer out of Wheatfield to Arbour Hill and subsequently to Mountjoy, and having been transferred to Mountjoy he more or less immediately sought a transfer back to Wheatfield. In one of these letters as dated the 14th day of June, 1999, to the Governor while in Mountjoy Prison, the plaintiff accepts that he wrote a number of falsehoods and in several other letters he accepts that he was prepared to complain that he no longer felt safe within Wheatfield. He further was prepared to state in writing that he had been threatened and that he would be done again.
23. The plaintiff conceded in evidence that insofar as the pleadings set out an allegation that the prison authorities deliberately and consciously allowed Mr. Daly to attack the plaintiff, he accepts that Officer Dowd did not know that Mr. Daly had in mind to throw a bucket of boiling water over him on the particular occasion. The case the plaintiff makes out is that Officer Dowd knew in general terms that the plaintiff was likely to be attacked by Mr. Daly.
24. Paul Saunders gave evidence that he was incarcerated in Wheatfield in 1999, and he says he was present following the plaintiff’s return from hospital when Mr. Dowd indicated to Mr. Breen words to the effect “you were done once, I can have you done again”.
25. Officer Duffy gave evidence that he is a senior control and restraint instructor and that he was in charge of recreation area 4G at the time of the incident. He says that around 6.00p.m., Mr. Daly requested permission to clean his cell which was granted, and that it was not unusual for a prisoner to clean his cell at around this time, although he accepted that it would have been more normal to have cleaned the cell at around 9.15a.m.. To enable Mr. Daly get a bucket and mop he unlocked the sluice room. He says that it was not unusual for prisoners to get water from the boiler immediately adjacent to the entrance to the recreation area and that the reason for this is that prisoners prefer hot water because the floor dries quicker, and his evidence is that there was nothing unusual about this practice.
26. It is clear that at the time when Mr. Daly was filling the bucket with boiling water he was in the immediate vicinity of three prison officers and he then appears to have walked down the room and poured the bucket of boiling water directly over the plaintiff at a time when he was seated and watching television.
27. He denies that in any way he left the scene and says that himself and Officer Farrelly immediately went to the assistance of the plaintiff, separated him from Mr. Daly and insofar as the plaintiff made reference to running into the sluice room, Officer Duffy says that this would not have been possible because he had previously locked the sluice room following Mr. Daly taking the bucket and mop therefrom. Officer Duffy says that he had no knowledge of any row between Mr. Daly and the plaintiff. He accepted that the boiling water would be very dangerous and that there was no procedure in place at the time, in respect of the boiling water.
28. He says that if the plaintiff had come to him and advised him of any potential difficulty between himself and Mr. Daly, he would have sorted out the problem. There was no need for the plaintiff to come out of his cell to the recreation area if he was frightened of Mr. Daly.
29. Officer Farrelly denied that as indicated by the plaintiff he had “legged it” from area 4G the moment the incident occurred. He says that there was nothing unusual about the boiler being used for hot water to clean the cells. There was never any bleach left out for use by the prisoners. He was not put on any notice of a potential difficulty between prisoner Daly and the plaintiff and he was not told of anything unusual. The procedure now apparently is that the boilers have been removed and prisoners have their own kettles.
30. Officer Dowd in giving evidence absolutely denied that he had ever made the comments alleged by the plaintiff. If he had had it in for the plaintiff he described how on a number of occasions he could have put the plaintiff on report pursuant to a P19 form, and then the prisoner would be brought to the Governor, given an opportunity to defend himself and the Governor would decide the appropriate action to be taken, which could involve loss of privileges, visits, and phone calls. He accepted that he would have the opportunity, if he so chose, to make life difficult for a prisoner. He accepted that he had had a number of small run-ins with the plaintiff but nothing serious. Insofar as the plaintiff himself had given evidence of an incident where he had allegedly removed photographs of the plaintiff’s children from the wall of his cell and that an altercation had followed in which the plaintiff had threatened to cut his throat, he says that this never occurred and had it occurred he would have had no alternative but to put the plaintiff on report, pursuant to a P19 Form and he would also have gone to the Garda Síochána, in that such a situation if it had occurred would have been regarded as extremely serious.
31. He states that no prisoner would be forced to go to a landing if there was particular difficulty and he would not be moved. He indicated to the court that a prisoner would not be put in the way of danger. In order for a prisoner to be transferred there has to be a vacancy. Where the prisoner is moved to was not his decision and he could not interfere in any way with the instruction that would come down from the Chief Officer. His rank would not allow him to pick and choose where a prisoner would be sent.
32. He says that he had only been made aware of the case some three/four months previously and he was never asked about the incident subsequent to it having taken place.
33. Deputy Governor Kavanagh gave evidence of having been in the Prison Service for some 21 years. If a prisoner gave a valid reason for not wishing to be transferred the matter would be investigated. A prisoner can complain to any officer and in such circumstances a prisoner will be seen on the day of a request. He personally had examined the Governor’s books and there is no recording of the plaintiff having attended with Governor Riordan some few months prior to the incident, or of him having been subjected to lock up and in fact the only reference in the lock up book to the plaintiff having been subjected to lock up was on 11th October, 1999, when he was subjected to a 23 hour lock up and the reason is set out. There is no lock up unit as such in Wheatfield and a prisoner in such circumstances would be locked up in his own cell. Deputy Governor Kavanagh accepted that Assistant Governor Treacy was responsible for the work and training area and he would interview the prisoners and allocate work to them. He accepted that there is a safety statement and prison rules. In respect of visits to the Governor there is a book that records each visit and if a prisoner does not turn up, the words “declined” are written in. In respect of reports for disciplinary matters these are made out on P19 Report Forms and would be placed on the prisoners file. He says that there was at the material time no system whereby the transfer of prisoners to different landings was recorded in writing.
38. Officer Baker gave evidence that he was the officer in charge of landing 4G. He was only contacted approximately a week prior to the hearing commencing as regards the case, but he remembered the plaintiff and he says that the plaintiff never gave him any indication that there was a problem with Mr. Daly. He says that at no time did the plaintiff make any statement to him that he was in fear. At 5.00p.m. on the day of the incident he handed over the care of the plaintiff to Officer Duffy and if any indication had been given to him by the plaintiff, he would have reported that to Officer Duffy when he was taking over. Between 5.30p.m. and 7.30p.m. on the day of the accident the plaintiff could not have remained in his open cell. He either went to the yard or to the recreation area, or he could have remained in his cell but the cell would have been locked.
39. From two diary entries that he maintained he was in a position to state that he was attending with the plaintiff in hospital on 28th and 31st of January, 1999, and that he was there on a twelve hour shift, from 8.00a.m. to 8.00p.m.. He in fact was handcuffed to the plaintiff and at no stage did the plaintiff make any reference to having been set up, or refer in any way to the complaints he allegedly made to Officer Baker. He was aware that the incident had occurred soon after it happened. He says that it was not unusual for prisoners to use the boiler for hot water to clean their cells.
40. Mr. Peart on the plaintiff’s behalf takes issue with the defendants’ discovery and in particular with the absence of a safety statement and the prison rules. It was elicited that there is a Wheatfield Prison information booklet and this was made available to the plaintiff’s legal advisors. Mr. Peart submits that these documents were deliberately withheld, but I am satisfied from the precise wording of the order for discovery that the situation is unclear. The evidence adduced before me was to the effect that there was not a safety statement in existence on 16th January, 1999, and I understand Deputy Governor Kavanagh’s evidence to be that there is now a safety statement and that insofar as there are prison rules, these are statutory rules which came into being in 1947 and these rules are available in the public domain. Insofar as the information booklet was made available, Mr. Peart does not contend that there is anything of major significance in any of the documents which in some way has prejudiced his client’s position.
41. It is further submitted that the defendants’ have not called in evidence Governor Riordan, Governor Treacy or Officer Carroll, but it does appear that none of these witnesses were advanced in the schedule of witness, expert witnesses and reports as provided for pursuant to O.39, r.46(1)(ii) of the Rules of the Superior Courts and in fact, Governor Riordan was specifically identified as a witness on the plaintiff’s behalf. Mr. Peart submits that he has been deprived of the opportunity to cross examine Governor Riordan, particularly in respect of the fact that there is no record of the plaintiff’s alleged visit to complain to Governor Riordan as regards Mr. Daly.
42. Mr. Peart submits that it is a significant pointer in the case that the authorities did not interview Officer Dowd and Officer Baker following the incident.
43. Mr. Peart criticises the system whereby the transfer of prisoners from one landing to another takes place without the prisoners name in writing being recorded and invites the court to consider that this proposition cannot be correct.
44. Mr. Clarke on the defendants’ behalf submits that for the plaintiff to be believed there has to be a succession of prison officers who have told deliberate lies and a monumental conspiracy to set up the plaintiff. For such a conspiracy to have occurred on the very day of the incident, the plaintiff having made a request for transfer to the Visiting Committee, a senior officer would have to have decided on the transfer itself and as to where the plaintiff was to be transferred, Officer Dowd would have to have been on duty, there would have to have been a vacancy on landing 4G and either or both Officers Duffy and Farrelly would have to have been involved in the conspiracy to have allowed Mr. Daly access to the boiling water. In essence Mr. Clarke submits that the allegation of a set up is without foundation.
45. Mr. Clarke lays emphasis on the statement as made to the investigating Garda on 23rd day of January, 1999, when the plaintiff stated that “he did not know why this happened”.
46. It is submitted that it was only four years after the statement of claim was delivered that Officer Dowd’s name was mentioned for the first time. No details of any other complaints, such as to Officer Baker were provided and the defendants’ only learnt of these complaints during the course of the evidence. Insofar as it was alleged that there was a direct complaint to Governor Riordan a few months prior to the incident occurring, this was only detailed in evidence at the hearing of the action.
47. Mr. Clarke relies on the evidence of the plaintiff himself that he never anticipated the attack while in the recreational area on landing 4G, that he expected that there would be a stand up fight with Mr. Daly, or that alternatively an incident would occur in his cell and further the plaintiff’s admission that the prison officers could not have anticipated the attack by Mr. Daly upon the plaintiff as he was watching television in recreation area 4G at the time of the incident.
The Law
48. The law as stated by Hamilton P., in Muldoon v. Ireland and the Attorney General [1988] I.L.R.M. 367, is quite clear and is that:-
“The prison authorities are required to take all reasonable steps and reasonable care not to expose any of the prisoners to a risk of damage or injury, but the law does not expect the authorities to guarantee that prisoners do not suffer injury during the course of their imprisonment.”
Conclusion
49. There is a straight conflict on the evidence in this case and I bear in mind that I have not heard evidence from Governor Riordan, Governor Treacy or Prison Officer Carroll who was in charge of the work shop
50. There is in my view a contradiction in the plaintiff’s own evidence because on the one hand he appears to have an obsession about ratting on other prisoners and getting himself into difficulties with the prison population and on the other hand, his case is that he made numerous complaints about Mr. Daly to several officers. There is no record of any complaint and in particular no record of the plaintiff having gone to see Governor Riordan a few months prior to the incident complained of. There is no record of the plaintiff having been put on lock up a few months prior to the incident occurring and there is no record of the plaintiff having been put on any P19 report prior to the incident complained of. If as indicated by the plaintiff in evidence, he grabbed Officer Dowd and threatened to cut his throat, I take the view that it is a reasonable inference as indicated by Officer Dowd in evidence, that this matter would have been treated very seriously, the prisoner put on report and that Officer Dowd would have reported the matter to the Garda authorities. Further there is no record of any complaint being made by the plaintiff in respect of postal deliveries or the withdrawal of any such alleged complaint.
51. There is in my view a further contradiction in the plaintiff’s evidence and that is if as he suggests he was being set up and he was told there was a surprise in store for him on landing area 4G, this would be all the more reason for him to have opted in his first few hours on arrival on the landing to have remained in his cell and taken the matter up with a higher officer the following day, instead of which the plaintiff left his cell at around 6.00p.m. and went to the recreation area, where he knew he was going to come in contact with Mr. Daly and having come in contact with him, considers himself to have been in no danger. I take the view that it is a reasonable interpretation of events that if the plaintiff had made such vociferous complaints regarding his safety and perceived threat of attack from Mr. Daly, on the balance of probabilities he would have been more likely to have remained in his cell until the situation was sorted out.
52. There is also the aspect of the Visiting Committee meeting, which was arranged for the morning of the incident and nowhere in the interview notes which were admitted is there any mention made of a perceived threat to the plaintiff’s safety. He complained of not being allowed to make phone calls and of alleged assaults by prison officers on prisoners in the unit where he was housed and of wanting a transfer to a different landing. The plaintiff’s explanation for not making any complaint because he did not want to rat on Mr. Daly is, in my view, untenable against the case made by the plaintiff that he was complaining to various prison officers about Mr. Daly. I take the view that a reasonable inference can be drawn from the Visiting Committee’s admitted notes that the plaintiff wanted to change landing because of difficulties with telephone calls and of alleged assaults on fellow prisoners by prison officers.
53. As regards the incident itself, the plaintiff never considered himself under any threat from Mr. Daly in the recreation area and accepts that the three prison officers on duty could not have anticipated the events that occurred. The evidence of the prison officers is that it was not unusual for prisoners to take boiling water from the boiler, and that this is what occurred on the occasion in question. The plaintiff himself accepted in evidence that he saw Mr. Daly going down to the sluice room and getting a bucket and walking up the other end of the room and yet, did not consider himself to have been in any danger. I take the view on the evidence that it was not unusual for prisoners to fill buckets with boiling water from the boiler. If it was unusual, or did not happen previously, then on the conspiracy theory Officer Duffy was complicit in permitting Mr. Daly to fill a bucket with boiling water from the boiler effectively for the purpose of emptying it over the plaintiff. I do not accept that that situation pertained on the evidence.
54. It is specifically alleged in the statement of claim as delivered on the 6th December, 2001, that the boiling water which was poured over the plaintiff was mixed with sugar and bleach. I appreciate that Mr. Peart on behalf of the plaintiff did not press the issue of the bleach, but nevertheless no evidence was adduced to support such a serious allegation and the evidence of Officer Farrelly which I accept is to the effect that no bleach was ever left out for use by prisoners. No medical evidence was adduced to support the contention that the boiling water was mixed with sugar and/or bleach. Against the background of the plaintiff’s case that he was set up by the prison authorities, this is a particularly sinister allegation and one which on the evidence adduced I reject.
55. Following the incident while in hospital the plaintiff was visited by the Garda Síochána investigating the assault upon the plaintiff. The plaintiff gave a detailed statement containing several factual references, and he indicated that he did not know why the incident occurred. I found the plaintiff by his demeanour in the witness box to be very evasive concerning the statement he made to the investigating Garda and he was clearly intent in attempting to make the case that this statement was probably given at a time later in remove after he had been transferred back to Wheatfield following his period of hospitalisation. It is patently clear that the statement was taken while the plaintiff was in hospital and the detailed cross examination of the plaintiff demonstrates that the entire of the statement is factually correct. It may well be that the plaintiff was on medication and was suffering pain, but on the evidence he did not advance any reason at the time for not making a statement and the treating doctors did not believe that there was any medical reason why he should not give the statement. The statement given within a few days of the incident makes no reference to any set up or complicity by the prison authorities in the assault and against the background of the plaintiff’s evidence that he had told several officers of the fear for his safety from Mr. Daly, contains no reference at all to that aspect and in fact expressly rules out such a factual background by the indication that he did not know why the incident occurred.
56. Apart from a general complaint that the prison authorities should not have let Mr. Daly have access to the plaintiff within the prison no allegation was made to the prison authorities following the plaintiff’s return from hospital that he had been set up, or that the prison authorities or certain officers were in some way complicit in the assault, or that having complained on several occasions to the prison authorities his complaints had been ignored as regards a perceived threat from Mr. Daly. It has to be borne in mind that against the background of the plaintiff’s evidence, that he on several occasions had no difficulty in advising the prison authorities prior to the incident as regards the perceived threat and it is accordingly, difficult to reconcile the plaintiff’s evidence with the factual events which occurred subsequent to the assault, both while the plaintiff was in hospital and on his subsequent return to Wheatfield.
57. The plaintiff clearly had every opportunity to voice any complaints he had with regard to the assault with the Visiting Committee and he accepts that he did not do so.
58. I have every sympathy with the plaintiff because quite clearly both, on the medical evidence and on viewing the nature and extent of the scarring as sustained by him, he has suffered a very significant injury. As a matter of law however, the onus rests upon the plaintiff to satisfy the court that on the balance of probabilities his version of events is correct. In the particular circumstances of this case the court would have to be satisfied that on the balance of probabilities the events as described by the plaintiff are generally correct. Taking the plaintiff’s case at its higher level I do not accept that the plaintiff was in any way set up by Officer Dowd. For such a set up to have occurred there would have to have been an extraordinary series of coincidences and extensive negotiations with other prison officers, between midday and approximately 6.30p.m. on the day of the incident and furthermore, Officer Duffy and by implication Officers Farrelly and Dowling, who were the prison officers on duty in recreation area 4F at the time, would have to have been complicit to allow on the plaintiff’s evidence for the most unusual feature of a prisoner being permitted to fill a bucket with boiling water from the boiler and it would accordingly follow, that at least Officer Duffy knew precisely what was going to occur and yet on the plaintiff’s own admission he accepts that the prison officers who were on duty could not have anticipated what was going to happen. In my view, the plaintiff’s case so forcibly set out in the pleading to the effect that he was set up has no substance and fails.
59. The further claim advanced by the plaintiff is that he was specifically transferred regardless of his several complaints to various Governors and prison officers to landing 4G and that the prison authorities knew that in making such a transfer he would come in contact with Mr. Daly and an assault was likely. This issue is to be decided on the basis as to whether or not I accept the evidence of the plaintiff that he made the several complaints. I take into account the evidence of Officers Dowd and Baker that they totally deny that they were ever put on notice by the plaintiff that there was a problem with Mr. Daly, and a risk of a perceived assault and further that if any such complaint had been made the plaintiff would not have been transferred to landing 4G. I bear in mind that Governors’ Riordan and Treacy did not give evidence to rebut the plaintiff’s allegations and further that Officer Carroll from the work shop, to whom a further complaint is alleged to have been made, did not give evidence. There is however, in particular no record of the plaintiff’s attendance with Governor Riordan some few months prior to the incident and no record of the Governor’s apparent order that the plaintiff be subjected to lock up which would be in the form of a punishment. The plaintiff had the ideal opportunity to complain to the Visiting Committee on the very day of the incident as regards his alleged concerns about Mr. Daly, but he did not do so and while he did ask for a transfer to a different landing, his complaints on that occasion were as regards an inability to access the telephone to make calls and alleged assaults upon other prisoners on the landing by prison officers. Perhaps the most telling evidence against the plaintiff is that he himself having arrived on landing 4G opted, knowing the prison rules, not to remain locked in his cell during the recreation period or even alternatively having entered the recreation area and seen Mr. Daly not to have opted either to have returned to his cell or to have gone to the yard, in the manner as described by Officer Baker. I take the view that a reasonable inference can be drawn from these facts that the plaintiff did not consider himself to have been in any danger from Mr. Daly. Furthermore, the plaintiff made no move when Mr. Daly sat down in front of him some twelve feet away, nor was there any reaction from the plaintiff when Mr. Daly got up, approached Officer Duffy walked back down the room to get a bucket and mop and then walked back up the room again towards the boiler. These factual circumstances in my view do not accord with a situation where the plaintiff was in fear of an attack from Mr. Daly, nor do the facts accord with the plaintiff in the previous few hours having detailed complaints to both Officer Dowd and Officer Baker of his concerns about a perceived attack from Mr. Daly. The plaintiff’s statement to the investigating Garda made within a few days of the accident, in my view, on the balance of probabilities truthfully explains the plaintiff’s view as regards the attack upon him by Mr. Daly in the terms “I don’t know why this happened”.
60. On no occasion while Mr. Baker was with the plaintiff for two twelve hour periods of time on the 28th and 31st January, 1999, in the hospital did the plaintiff ever intimate to Mr. Baker anything about having made a complaint to him and of having been scalded by Mr. Daly some few hours later. On his return to Wheatfield the plaintiff made no formal complaint to any person in authority and more particularly, did not avail of any opportunity to raise a complaint with the Visiting Committee.
61. Insofar as there is direct conflict between the evidence of Officer Dowd and Officer Baker and that of the plaintiff and Mr. Saunders, I prefer the evidence of the prisoner officers and I reject the evidence of the plaintiff and Mr. Saunders. I take the view, if I am satisfied that the alleged conversations of complaint between the plaintiff and Officers Dowd and Baker did not occur, that it is reasonable to infer on the balance of probabilities, particularly in the absence of any record that the like alleged conversations with Governor Riordan, Governor Treacy and Officer Carroll from the work shop also did not occur and I so find. I further take the view that I am entitled in coming to this conclusion to bear in mind that no personal oral complaint from the date of the incident and throughout the pleadings was ever intimated against Governors Riordan and Treacy and Officer Carroll, and these complaints were only brought to the notice of the defendants’ in evidence some nine years after the incident occurred. I conclude accordingly, that prior to the incident occurring when the plaintiff was scalded by Mr. Daly he had not brought to the prison authorities attention any concern he may have had about being subjected to a perceived attack by Mr. Daly because he had previously been involved in an incident on the Dart train when he had cut Mr. Daly’s cousin’s throat with a Stanley knife.
62. In these circumstances the prison authorities cannot, in my view, be said to have been negligent or in breach of duty in failing to prevent the attack on the plaintiff and accordingly I dismiss the claim.
Creighton v Ireland [2009] IEHC 257JUDGMENT of Mr. Justice White delivered on the 25th day of May 2009
The plaintiff seeks damages in negligence in respect of injuries which he sustained on the 19th day of January 2003, whilst detained as a prisoner in Wheatfield Prison.
On that day, the plaintiff, together with a number of fellow prisoners, had been assembled in the Medical Centre within the prison, a location referred to by prisoners and warders alike as “The Cage”, for the purposes of receiving medication in the form of methadone. Whilst awaiting his medication, the plaintiff alleges that suddenly, and without provocation, he was slashed about the face by a fellow prisoner, and then knocked to the floor, where he received further slashes to his back and abdomen before being rescued from further injury by prison officers. He cannot say how long the assault lasted, other than that it was less than a minute. At the time he was squatting on a bench and attacked from the side or behind. The Medical Centre is located on a main corridor of the Prison. It consists of five interconnected units. The units at either end are accessed by gates on the corridor. The three central units are interconnected by separating gates. Separating gates at either end give access to the end units. Prisoners are admitted at one end, the gate to the corridor is locked behind them, and they make their way through the central units to the far end unit, where Methadone is dispensed. The separating gate to the dispensary unit is locked, and prisoners are admitted thereto individually. This is the sole unit in which prison officers are present. Two officers are present, one to admit prisoners to the unit and to return prisoners to the corridor, and the other to verify the prisoner’s entitlement to medication.
The lower half of the central units, as they face onto the corridor, are solid, and the upper half are barred, thereby permitting of prison staff having a limited view of the central units from the corridor.
There is a conflict on the evidence as regards the number of prisoners present in the Medical Centre, the length of time the plaintiff was in the Centre on the morning in question, and as to whether or not the separating gates between the central units were open or locked. However, I do not consider that I need resolve these conflicts.
The weapon used by the plaintiff’s assailant was never recovered, a fact that astounds me. Details of the search for the weapon were not given. The plaintiff contends that the weapon was of a propriety brand, but prisoners are, apparently, given to improvisation when it comes to weapons. Again, I do not consider it necessary to determine the nature of the weapon involved. Clearly, it must have been a blade of some sorts.
I have received evidence from Mr. Roger Outram, a retired United Kingdom Governor, who I found to be an impressive witness. He considered that the defendants had failed in their duty of care. He was critical of the system, and considered the supervision to be inadequate, particularly in the light of previous assaults having taken place at that location. He had never seen a prisoner so seriously injured in the course of his career. Under cross examination, he conceded that you cannot prevent prisoners attacking fellow inmates.
The defendants made Discovery of assaults by prisoners on fellow prisoners at Wheatfield Prison during the period the 18th July, 2001 and 18th January, 2003. The discovered material shows that some twelve assaults occurred during the said period. Two of those assaults occurred in the Medical Centre, the first on the 8th July, 2002, when the weapon used was a sock containing a cup and an orange, and the second on the 30th August, 2002, when the weapon used was a knife. In all, three assaults involved the use of a knife or similar weapon.
There is no evidence before me of any risk evaluation having been carried out following these assaults at the Medical Centre, or of any steps having been taken to minimise the potential exposure of inmates to assaults at the Medical Centre.
The medical evidence in this case is agreed. I have been furnished with three reports from Dr. Patricia Eadie dated 1st September, 2004, the 24th May, 2007 and the 14th January, 2009, respectively. I have also been furnished with photographs of the injuries, and have had the opportunity of viewing them myself.
The plaintiff is scarred on his face and on his trunk.
His right cheek: There is a 13cm scar, which extends from his right alar base transversely across his cheek to the region of his ear lobe. This scar is pale and thin anteriorly but the lateral one third of the scar is red and has stretched to approximately 3mm.
His nose: There is a 2.5cm scar which extends from the medial aspect of his right nostril to the left side of the dorsum of his nose. This scar is thin and flat and overall has settled well. (He has an old scar approximately 1cm long on his left alar region).
He has a 10cm v-shaped scar on his right mastoid and scalp. This scar is pale and barely visible.
His left flank posterior: There are in total three scars in this area in an oblique direction with two of the scars lying very close to each other. One of these scars measures 10cm x 5mm and the second scar measures 8cm x 6mm. These scars are pink and flat. The third lies in a horizontal direction and measures 12cms.
His left abdomen: There is a 23cms scar extending from his umbilicus transversely towards the left side of his abdomen. The lateral 14cms of this scar are quite purple and hard. This is an area that underwent scar revision in November 2006.
The scarring is unlikely to improve with time, and further surgery is unlikely to make any superficial difference.
The law in relation to the duty owed by the State to detained persons is set out in Muldoon v. Ireland [1988] I.L.R.M. 367, wherein Hamilton P. at 369 states:-
“The standard of care required of the prison authorities in this case is to take all reasonable steps and reasonable care not to expose any of the prisoners to a risk of damage or injury. The law does not require them to guarantee that an incident like this could not occur or to guarantee that prisoners do not suffer injury during the course of their imprisonment. But the law requires the defendants, in this case Ireland and the Attorney General, to take reasonable care, and the two allegations made against the prison authorities in this case are: (1) that they did not have enough staff on duty in the recreation yard to exercise proper supervision; and (2) that they were wanting in care in permitting a prisoner to get on to the recreation yard with some sharp instrument, be it a blade or knife or some other instrument of that kind.
It is quite clear that the incident happened suddenly, was unprovoked and there was no prior warning, so that there were 50 prison officers in the recreation yard on that occasion in question, this incident could not have been prevented. Consequently, I will hold that the prison authorities were not negligent in not having enough prison officers in the yard to effect reasonable supervision and reasonable control.
That leaves then the other question of the instrument in the possession of the prisoner. The plaintiff was attacked from behind and had no opportunity of seeing what instrument was used, and he suggested either a knife that was taken from the kitchens or workshops in the prison, or a blade such as has been described by Mr. Scannell the Chief Officer.
The onus, as I say, on the prison authorities is to take reasonable care. They cannot guarantee, and cannot be expected to guarantee, that an incident like this cannot occur. The only way such an incident could be prevented is by searching every prisoner every time he moves from one area to another. We have evidence from Mr. Scannell about searches that are conducted, and the care is taken to prevent prisoners from having in their possession weapons or instruments that could be used for offensive purposes. It is realistic, in spite of all these steps, that occasionally an incident like this can happen, but I cannot see what more could have been done by the authorities by way of searching. More and more frequent searches would undoubtedly be regarded as excessive and could be argued to amount to inflicting harassment on the prisoners.”
Muldoon v. Ireland was approved by the Supreme Court in Bates v. The Minister for Justice and Others [1998] 2 I.R. 81.
In addition the unreported High Court judgments in Kavanagh v. Governor of Arbour Hill & Another (Morris J., 22nd April 1993), Boyd v. Ireland and Another (Budd J., 13th May, 1993), Howe v. Governor Mountjoy Prison & Others, (O’Neill J., 31st October, 2006), and Breen v. Governor Wheatfield Prison and Others, (Gilligan J., 11th April, 2008), all found in favour of the defendants and against the plaintiffs.
I am satisfied that it would be unreasonable to expect, or require, the prison authorities to search each and every prisoner every time he exited his cell. Further, I am satisfied that the prison authorities could not have been reasonably expected to have been in a position to prevent an attack on the plaintiff.
Equally, however, given the fact that two attacks, involving the use of weapons, had occurred in the Medical Centre within the previous six months, I consider that the failure to place a prison officer or prison officers within the three central units of the Medical Centre and among the prisoners was a failure in the defendants duty of care to the plaintiff, but only to the extent that such a presence would have resulted in an earlier intervention in, and break up of, the assault. The absence of such a presence inevitably resulted in some time delay in officers going to the assistance of the plaintiff. Speed of intervention would have, in my view, lessened the extent of the injuries sustained by the plaintiff. I do not consider that such a presence could have prevented the head and facial injuries, but I consider, in all probability, it would have been likely to prevent the injuries which the plaintiff sustained to his flank and to his abdomen. I measure damages in respect of these injuries as being the sum of €40,000. Accordingly, there will be judgment in this sum in favour of the plaintiff.
Casey v Governor of Midlands Prison [2009] IEHC 466,JUDGMENT of Ms. Justice Mary Irvine delivered on the 27th day of October, 2009
1. The plaintiff is a carpenter, by trade, who was born on 23rd May, 1974. He brings this claim seeking damages for negligence against the defendants arising from an assault which he sustained whilst a prisoner at the Midlands Prison, Portlaoise on 21st January, 2005. At that time, the plaintiff was serving a four month sentence for assault.
The facts
2. In the early afternoon on 21st January, 2005, the plaintiff participated in the second recreation period of the day at the Midlands Prison. He went to the area in which the prisoners played pool. He was playing pool with a fellow prisoner when another inmate announced that it was his turn next. In response to this intervention, Mr. Egan, a fellow prisoner of plaintiff, asserted that it was he who was next play at the table and plaintiff was asked to confirm that this was so. The plaintiff refused to confirm Mr. Egan’s statement indicating that he was only concerned with his own game. Mr. Casey was not impressed that the plaintiff did not support his account of events and he told Mr. Egan not to be smart or he would “break his face”.
3. There is a dispute as to what occurred next. The plaintiff alleged that Mr. Egan, following his outburst, broke a cue by slamming it on the pool table before storming off. These facts were disputed by the defendants who were only made aware of this detail when the case opened. The breaking of the cue had not been referred to in the pleadings. Neither had this event been made known to Mr. Tasker, the plaintiff’s expert witness, when he was instructed in the matter.
4. As far as the plaintiff was concerned, he did not expect any repercussions to arise as a result of what had happened at the pool table. He believed the incident was over. He had not previously known Mr. Egan. Later that evening, the plaintiff participated in the third recreation period of the day. He chose, along with approximately ten or twelve of his fellow prisoners, to go to the recreation yard attached to B wing. The rest of the prisoners went to the indoor recreation area or remained in their cells.
5. The yard in which the plaintiff was assaulted is attached to B wing and is within its secure perimeter. The yard is solely for the use of prisoners from that wing. Each wing in the prison has its own exercise yard. Access to the yard from the cells involves prisoners going from various landings through a number of gates, two of which are manned. Prisoners are not searched before entering the yard.
6. The plaintiff was in the yard for some minutes, talking to one of his friends when suddenly and without any warning he was set upon by a number of other prisoners. One of those prisoners was subsequently identified as the Mr. Egan with whom he had had the verbal exchange earlier in the afternoon. Mr. Egan hit the plaintiff over the head several times with what the court was told was the standard white delft cup issued to all prisoners. The plaintiff sustained several lacerations to his head and numerous kicks and blows to other parts of his body. The plaintiff managed to escape his attackers by running to the gate of the yard which was manned by two prisoner officers. They called for reinforcements. The plaintiff was not permitted to leave the yard until assistance arrived. It is accepted that the plaintiff was not at any risk of assault during the short period it took for help to arrive but the plaintiff was distressed by the fact that he was not allowed out of the yard with immediate effect. The plaintiff accepted that the assault was over before anyone realistically could have been expected to intervene to help him.
7. Following the assault the plaintiff was seriously shocked and upset. He was taken to the Accident and Emergency Department of the Midlands Regional Hospital bleeding from several lacerations. X-rays to the skull and chest were carried out. The multiple lacerations to the plaintiff’s forehead and head were stitched with nylon sutures. Approximately 20 sutures were inserted in the plaintiff’s head and these were removed some five days later. The plaintiff complained of tenderness in his abdomen and shoulder and he was found to have blood in his urine. Fortunately no adverse sequelae resulted from the soft tissue injuries. The plaintiff, however, has been left with scaring to his forehead and head. He experiences feelings of numbness and discomfort when showering or combing his hair. This is due to damage to the underlying nerve endings.
Prison regime
8. Mr. Kennedy, Assistant Governor of the Midlands Prison, was called as a witness on behalf of the plaintiff. This undoubtedly occurred due to the fact that the plaintiff wished to prove the content of certain documentation pertaining not only to the assault, the subject matter of the present proceedings but also documentation pertaining to the plaintiff’s assailant, Mr. Egan. This being the case, the evidence adduced by Mr. Kennedy must, of course, be considered as part of the evidence adduced by the plaintiff.
9. Mr. Kennedy had extensive knowledge of the Irish prison system having also worked in Mountjoy, Wheatfield, Limerick, Cork and Fort Mitchell Prisons. He gave the court substantial detail regarding the operation of the Midlands Prison and its security system. He also, where appropriate, referred to the security regimes in other prisons with which he was familiar in Ireland.
10. According to Mr. Kennedy, prisoners when admitted to the Midlands Prison are thoroughly searched for any potential weapons. Thereafter, they are only searched if going outside the security perimeter of their wing. By way of example, if a prisoner was leaving their wing to go to the workshop they were searched on their way back into the wing. Similar searches were carried out if a prisoner attended any other facility beyond their own wing such as the medical centre. Whilst prisoners remained within the perimeter of their own wing the defendants, Mr. Kennedy advised the court, tried to operate a regime which was as humane as possible whilst also trying to ensure that the prisoners remained safe. As far as Mr. Kennedy was concerned, the deprivation of the prisoners’ liberty was their punishment and he told the court that the defendants accordingly believed that prisoners should not be subjected to any additional unnecessary dehumanising treatment and that this included unnecessary body searches, whilst they were serving their sentences.
11. Mr. Kennedy told the court that all prisoners, on arrival, were given their own delft mug and plate which thereafter they kept in their cell. They were issued also with heavy duty plastic cutlery and were supplied with a kettle and television for their cell. Prisoners were advised of the rules which prohibited delft being taken outside their cell other than for the purpose of collecting food which was served in another area of the prison. Food was taken back to the cell and eaten there during a period when the prisoners were locked up. Several cells had single occupancy whilst others cells were occupied by two or four prisoners. Giving prisoners a delft mug and plate was an effort on the part of the defendants to humanise the environment in which the prisoners were living. There had never been an incident, according to Mr. Kennedy, where delft had been used as a weapon against another prisoner.
Relevant case law: the duty of care
12. The parties to this action relied upon a number of decision arising from incidents of assault in various prisons. Each of these cases turned on their facts. However, the principles that emerge therefrom are of real import and they can succinctly be summarised as follows:-
(i) Prison authorities are required to take all reasonable steps and reasonable care not to expose prisoners to a risk of damage or injury, but the law does not expect the authorities to guarantee that prisoners do not suffer injury during the course of their imprisonment. (Muldoon v. Ireland [1988] ILRM 367)
(ii) The duty of care owed by prison authorities to its prisoners must be tested in the context of the balance to be struck between the need to preserve security and safety on the one hand and their obligation to recognise the constitutional rights of prisoners and their dignity as human beings on the other hand. (Bates v. Minister for Justice & Ors [1998] 2 I.R.)
(iii) In determining what is an appropriate standard of care, regard should be had to the hardship that any proposed system might impose on prisoners and whether any such system would place an excessive burden upon the prison authorities (Bates v. Minister for Justice & Ors [1998] 2 I.R.)
(iv) Cases of assault upon prisoners whilst in custody in general are likely to be decided upon by reference to what should have been anticipated by their custodians. (Bates v. Minister for Justice & Ors [1998] 2 I.R. 81)
Liability
13. Apart from the evidence of Mr. Kennedy, the plaintiff’s liability case was made through the evidence of Mr. Ronald Tasker. Mr. Tasker has had over 40 years experience in the United Kingdom Prison Service. He has been the Governor of five different prisons, all of which he stated were maximum security prisons. These prisons, whilst designed to deal with high security prisoners were often not full. Hence, ordinary prisoners were often sent there. He agreed that the ordinary prisoners were subjected to the standard regime in such prisons which was somewhat harsher than in non-high security prisons. However, he stated that the incidents of assault that occurred in high security prisons were, in his opinion, no more frequent nor severe than those which occurred in ordinary prisons.
14. Mr. Tasker was also familiar with a significant number of non-high security prisons in the United Kingdom and other parts of the world. Since 2004, he has worked as a consultant in the custodial field in England, Wales, Scotland and Northern Ireland, where has been involved in investigating the circumstances in which a number of prisoners have died whilst in custody. Mr. Tasker was not afforded an opportunity of inspecting the Midlands Prison and he accepted that he had no direct experience of prisons in the Republic of Ireland. For the purposes of his evidence, he had prepared an expert report on 22nd September, 2009.
15. The defendants, in these proceedings, did not call any evidence themselves. They relied upon the evidence that had been given by Mr. Kennedy, Assistant Governor of the Midlands Prison, when he was called as a witness on behalf of the plaintiff. Mr. Kennedy, as already advised, had worked not only in the Midlands Prison but also in several other prisons in this country.
16. Whilst many potential areas of negligence were canvassed with Mr. Tasker in the course of his evidence, the plaintiff’s claim was ultimately reduced to the two principal allegations of negligence which had been canvassed in the pleadings, namely:-
(i) The failure on the part of the defendants to carry out a search of prisoners entering the prison yard thus exposing prisoners to the risk of an assault from a weapon that could thereby be concealed on the person of another prisoner. In this case, the defendant’s alleged default permitted to the delft mug to be brought into the yard where it was used to attack the plaintiff. Had there been a search of a patting down nature, this potential weapon would have been detected and the plaintiff’s injury avoided.
(ii) The defendants failed to act, on the day of the assault, with due regard to the known propensities of Mr. Egan. His alleged propensity for troublesome behaviour when taken together with the incident that had occurred in the pool room earlier in the day, warranted the authorities engaging with Mr. Egan to find out what was going on or to at least “think about” the potential upshot of that event.
17. In relation to the first of these issues, Mr. Tasker advised the court that there should have been a search of prisoners moving from their cells to the yard. This he described as the prisoners moving “off the wing”. They should, in his opinion, have been subjected to a search which would have involved each prisoner being patted down to ensure that a potential weapon such as the mug in question was not taken out into the yard. The same search was not required, according to Mr. Tasker, if prisoners were moving from their cells to one of the indoor recreation areas. The search was required because:-
(a) The movement to the yard was, in his opinion, a movement “off the wing”;
(b) Scores between prisoners were more likely to be settled in a prison yard than in an indoor recreation area. This was due to the fact that prison officers were normally in much closer proximity to prisoners when they were indoors;
(c) Prisoners going outside would often be wearing outdoor clothing making it easier to hide a potential weapon from a visual inspection.
18. As to Mr. Taker’s evidence that prisoners should be searched before being admitted to the exercise yard, Mr. Kennedy stated that this was not practical. They were in excess of 120 prisoners on B wing. Any number of these might decide to go to the yard. There were three recreation periods a day. It was neither practical, necessary or humane to carry out such a search. He gave evidence that a full body search would take about seven minutes. He further disagreed with Mr. Tasker’s evidence that any less intense type of physical search of persons entering the yard was warranted.
19. Mr. Kennedy in his evidence stated that in the Irish Prison Service it would be considered inhumane and a hardship for prisoners to be subjected to a search of the nature suggested by Mr. Tasker, every time they wished to go the recreation yard. He said there was no reason to distinguish the yard from any other area where prisoners might congregate such as the indoor recreation area. The yard was solely for the use of prisoners in B wing. It was not therefore “off the wing” as suggested by Mr. Tasker. Prisoners from other wings did not have access to that yard. It was within the secure environments of area B. Thus there was no justification for searching inmates going into that yard. In this regard, the Midlands Prison he believed may have been different from some of the prisons being relied upon by Mr. Tasker where prisoners from different wings might use the same exercise yard.
20. In relation to this issue, the court heard that only three incidents had occurred in the recreation yard attached to B wing in the twelve months prior to this assault. Twelve assaults had taken place in the indoor recreation area over the same period. None of the three incidents in the yard, according to Mr. Kennedy, involved the use of a weapon.
21. Finally, Mr. Kennedy in his evidence stated that the system adopted in the Midlands Prison in relation to the movement of prisoners between their cells and in the outdoor recreation yard was similar to that used in Wheatfield Prison, Mountjoy, Fort Mitchell, Cork and Limerick. Only if a prisoner was moving to a communal yard would prisoners be searched.
Conclusion on the issue of the foreseeability of an assault on the plaintiff by Mr. Egan
22. In relation to this first issue, I conclude that the defendants were not in breach of the duty of care which they owed to the plaintiff. The defendants are not the insurers of the safety of their prisoners. They must use reasonable care to avoid foreseeable injury occurring. I accept Mr. Kennedy’s evidence that a balance has to be struck between the safety of prisoners on the one hand and the need to avoid a regime which may dehumanise and punish other prisoners who, as citizens, are entitled to be treated with dignity and respect. An assault of the type that occurred in this case by one prisoner on another using a prison mug could have happened in any cell shared by two or four inmates. Such an assault could equally, on Mr. Tasker’s evidence, have occurred in an indoor recreation area or on the way back from the area where food is served. In respect of such an assault, the defendants would not have been culpable given that Mr. Tasker advised that it was not necessary for the prison authorities to search prisoners leaving their cell other than when they were going to the recreation yard.
23. As to the foreseeability of injury from a weapon brought into the yard, no evidence was produced to show that delft was ever used in any assault in the Midlands prison. Similarly, there was no evidence that any other type of weapon was used in such assaults. If assaults with weapons were occurring in the recreation yard, and these were denied by Mr. Kennedy, I am convinced that some evidence in this regard would have been obtained on discovery and made available to the court. In the absence of such history, I cannot accept that the defendants were mandated to implement a system whereby each prisoner moving to what was described by Mr. Kennedy as the exercise yard designated for the use of prisoners in B wing, would have to be searched. I accept Mr. Kennedy’s evidence that no weapons had been used in the only three episodes of reported fighting in the yard in the twelve months prior to the assault upon the plaintiff. In this regard, I simply cannot infer, as I have been invited to do by counsel for the plaintiff, that weapons were used in these incidents merely because of the fact that in the P.19 report dealing with the plaintiff’s assault, there was no mention of the weapon used to inflict the plaintiff’s injuries.
24. The fact that it might not have imposed an undue burden upon the defendants to provide for the type of search contended for by the plaintiff, is not fatal to the defendant’s defence. The plaintiff must show that a failure to implement such a procedure was on the evidence, negligent. This, the plaintiff has failed to do. I am not satisfied from Mr. Tasker’s evidence that searches of the nature contended for by him are routinely carried out in non-high security prisons in the United Kingdom where prisoners are moving from their cells to a recreation yard which is not “off” the prisoners wing. If this was so, every prison in the United Kingdom would have a set of written regulations or rules setting out that safety procedure. No such readily available documentary evidence was furnished to the court. Even if the court is incorrect in this regard, the fact that such searches may be routinely carried out in United Kingdom prisons does not mean that the system in this country is necessarily defective.
25. On the plaintiff’s evidence, I am invited to make a finding the result of which would be to condemn as dangerous, what I understand to be the accepted norm in Irish prisons of permitting prisoners to move within the wing to their exercise yard without a search. I am invited to conclude that every prison operating this system is failing in its obligations to it inmates and that it should now alter its practices to coincide with the model proposed by Mr. Tasker. This, I cannot accept on the basis of the plaintiff’s evidence. I am satisfied that having regard to the infrequent incidents of assaults in the Midlands Prison in its yard, it would be wholly disproportionate and contrary to the humanitarian interests of the vast majority of its prisoners to require the authorities to search every prisoner who wished to avail of the recreation yard facility perhaps as often as three times a day for the whole of their sentence so as to avoid the remote risk of an assault being perpetrated against them by another prisoner using an implement that might have been found in the course of such a search. In coming to this conclusion, I have also had regard to the agreed evidence that even when body searches are routinely carried out that small weapons such as blades will rarely be detected thus leaving open, in any event, a continuing risk of significant injury to prisoners from those determined to injure others irrespective of any system of body searches as may exist.
Conclusion on the issue of the defendants alleged negligence for failing to search all prisoners accessing the recreation yard
26. In relation to the second allegation of negligence, I firstly find as a fact that the incident in the pool room did not occur in the manner alleged by the plaintiff. I do not accept his evidence that, following the exchange of words between himself and Mr. Egan, that Mr. Egan proceeded to break a cue by slamming it on the pool table. The fact that this aspect of the plaintiff’s account of events was not directly challenged by counsel for the defendant is not fatal to the right of this Court to reject the plaintiff’s evidence on the issue. In reaching my conclusion that Mr. Egan did not break a cue on the pool table, I have relied on the following matters:-
(i) The fact that his allegation was first mentioned by counsel for the plaintiff in the opening of the case.
(ii) That the allegation of the breaking of a snooker cue on the pool table was not referred to in any of the pleadings and neither were details of this event furnished to Mr. Tasker when he was first asked to report upon the circumstances that led to the plaintiff’s injuries.
(iii) If the incident had occurred, the same would, as a matter of probability, have resulted in a paper trail being created within the prison. The incident would have generated:-
(a) a P.19 investigation record;
(b) a record of the plaintiff’s liability to pay the prison authorities for the replacement of the cue.
No such documentation exists.
(iv) The P.19 disciplinary documentation generated in respect of Mr. Egan’s assault upon the plaintiff, whilst referring to the verbal exchange in the snooker room, makes no mention of any pool cue being broken.
(v) Mr. Kennedy’s evidence that it was unlikely that a prisoner would damage a pool cue as there was peer pressure from their fellow inmates not to damage equipment used by them for their leisure activities.
27. I reject any adverse inferences that I have been asked to draw from the fact that the defendants did not seek to investigate or call evidence from the security officers who were on duty at the pool hall on the afternoon of 21st January, 2005. I can readily understand why no such investigations or evidence was available having regard to the fact that the defendants were made aware of the allegation that a pool cue was broken for the first time on the opening of the case.
28. The second finding of fact that I make in relation to this aspect of the case is that I am not satisfied that Mr. Egan had any characteristics which justified the defendants taking any special precautions following the exchange of words between the plaintiff and Mr. Egan in the pool room. I accept Mr. Kennedy’s evidence that Mr. Egan was a nuisance and somewhat of a thorn in the side of the prison service. He undoubtedly was involved in a number of incidents which generated P.19 disciplinary procedures. However, he had had none of these in the three weeks before this incident. Further, whilst he had committed two previous assaults on fellow prisoners, these incidents involved what Mr. Kennedy described as regular type fighting between inmates. No weapons had been used. I also take into account the fact that Mr. Egan was not known to the plaintiff which, I think would have been likely if he was a prisoner of some repute. Finally, I cannot infer merely because of the fact that Mr. Egan was moved to Cork and/or Limerick Prison for short periods of time that this was due to the fact that he generated any particular danger to his fellow prisoners. Even if it be the case that the plaintiff’s evidence is correct that a prison officer told him that no prison wanted Mr. Egan that does not prove he had any propensity to carrying out vicious assaults on fellow inmates.
29. Even if I was satisfied, which I am not, that Mr. Egan broke the cue on the pool table as alleged by the plaintiff or that he had a propensity towards disagreeable behaviour, the height of Mr. Tasker’s evidence was that the defendants were mandated to make inquiries of Mr. Egan as to why he had engaged in that behaviour. Mr. Tasker did not state that Mr. Egan’s behaviour in such circumstances would have justified denying him access to the recreation yard that evening. Mr. Tasker stated that the onus on the defendants was to make inquiries of Mr. Egan so as to satisfy themselves that he had not any malevolent intentions as a result of the dispute with the plaintiff.
30. I am satisfied, on the balance of probabilities, that had Mr. Egan been approached by the defendants regarding the alleged incident that Mr. Egan would not have advised the prison authorities of his intention to assault the plaintiff. It is highly likely that he would have stated that the incident was over. Indeed, the plaintiff in his own evidence stated that as far as he was concerned the incident in the pool room was over and he did not anticipate any adverse consequences arising therefrom. Accordingly, I conclude that even if the events occurred as the plaintiff contends in the pool room and even if they had been investigated by the defendants that the same would not have precluded Mr. Egan attending the recreation yard later that evening where he assaulted the plaintiff. Accordingly, there is no causal nexus between any alleged negligence relating to the incident in the pool room and the events that occurred later in the day.
Conclusion
31. The assault the subject matter of this claim was not foreseeable. It is not reasonable to contend that it should have been foreseen by the prison authorities as a result of what had happened earlier that afternoon between the plaintiff and Mr. Egan. Neither can I conclude that the authorities, because of Mr. Egan’s past record, should have anticipated such an assault. He had been in no trouble for the previous three weeks and had no record of violence in prison save for two incidents of fighting which, on Mr. Kennedy’s evidence, were of no particular significance. No implements or weapons had been used in the course of such fighting. The plaintiff himself thought the incident in the pool room was over, the parties to the dispute had no prior history of conflict and Mr. Egan was not even known to the plaintiff.
32. Even if I were to accept, which I do not, that a pool cue was broken in the course of the verbal exchange in the pool room, Mr. Tasker’s evidence to the effect that intervention of some nature was warranted did not go so far as to suggest that the likely consequence of such intervention would, as a matter of probability, have precluded Mr. Egan from attending in the recreation yard that evening. Accordingly, no nexus has been established between any negligence arising out of the incident in the indoor recreation area and the assault which actually occurred.
33. In respect of the alleged negligence on the part of the defendants for their failure to search all prisoners moving from their cells to the recreation yard, I have assessed the plaintiff’s evidence against the legal principles referred to earlier in this judgment. Having done so I am satisfied that the system contended for by the plaintiff is not warranted having regard to the anticipated risk of injury from implements such as a prisoner’s mug which might otherwise be detected if all prisoners were to be searched every time they sought entry to the recreation yard. The system currently operated by the defendants is the standard practice adopted in all non-high security units in this country. The evidence in relation to the Midlands Prison was that there were only three incidents of violence in the prison yard in the twelve months prior to the assault upon the plaintiff and none of these involved a weapon. The system which the plaintiff contends is mandated, even if implemented, would not in any event prevent small and dangerous items being secreted into the yard by prisoners determined to injure a fellow inmate. Further, an injury from an implement such as a delft mug could occur in a prison cell or in an indoor recreation area even if a system of searching prisoners on entry into the yard was in place.
34. Of equal importance to the aforementioned matters is the fact that the systematic searches proposed by the plaintiff would substantially impinge upon the constitutional rights enjoyed by prisoners as citizens and the requirement that where possible their dignity as human beings should be respected. These searches, which would be visited upon all prisoners potentially as often as three times per day throughout their confinement, would I believe amount to a disproportionate interference with those rights, when weighed against the risk of foreseeable or potential injury absent such system. The plaintiff’s submission, if accepted, would force the defendants to abandon much of their efforts to promote a humane model of confinement to protect against a remote risk of injury in the prison yard. To my mind, the defendants efforts to preserve dignity, generate the notion of citizenship even within the confines of prison life and avoid the unnecessary dehumanisation of prisoners by subjecting them to ongoing body searches, justifies them accepting the remote risk that occasionally some type of injury which would otherwise be avoided if prisoners were always searched on entry to the recreation yard, may occur.
35. For all of these reasons the plaintiff’s claim must fail.
Creighton v Ireland [2010] IESC 50JUDGMENT of Mr. Justice Fennelly delivered the 27th day of October, 2010.
1. The plaintiff/respondent was a prisoner in Wheatfield Prison on 19th January 2003. While he was in a confined area with others awaiting delivery of his needed supply of Methadone, he was the victim of a sudden, violent and unprovoked knife attack by a fellow prisoner. The plaintiff described the knife used in a way suggesting that it was similar to a proprietary type commonly known as a Stanley knife. He suffered serious wounds to his face, stomach and flank. He secured an award of €40,000 by the judgment of the High Court (White J) in respect of part only of his injuries. I will refer to him as “the plaintiff.” No question arises as to which of the various defendant/appellants was responsible for the care of the plaintiff in prison: I will describe them simply as “the defendants.”
2. The plaintiff presented his claim in the High Court with the support of the expert testimony of a former governor of a number of English prisons, Mr Roger Outram. Mr Outram made a number of criticisms of the care of prisoners in Wheatfield, principally that the system of control to prevent entry of dangerous knives into the prison was lax and that the area in which the prisoners were confined while awaiting delivery of Methadone was unduly crowded. The learned trial judge found it unnecessary to determine either the nature of the knife used or the extent of the overcrowding, if any. He concluded that the “prison authorities could not reasonably have been expected to have been in a position to prevent an attack on the plaintiff.” However, the learned judge had, on his own initiative, recalled Mr Outram following the conclusion of the evidence for both parties. He suggested to the witness that there should have been an additional prison officer within the area where the plaintiff was attacked. The witness agreed and the learned judge held that, if there had been such an additional supervising officer, there would probably have been an earlier intervention which would have lessened the extent of the injuries suffered. In short, the plaintiff would have suffered his head and facial injuries but would probably have been saved the injuries to his flank and abdomen. He awarded damages on that basis.
3. These are the circumstances in which there is an appeal by the defendants against the award of €40,000 and a cross-appeal by the plaintiff against the rejection of the claim as he had presented it.
4. A sentence of imprisonment deprives a person of his right to personal liberty. Costello J explained in Murray v Ireland [1985] I.R. 532 at 542 that “[w]hen the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept.” Nonetheless, the prisoner may continue to exercise rights “which do not depend on the continuance of his personal liberty….” I would say that among these rights is the right to personal autonomy and bodily integrity. Thus, it is common case that the state owes a duty to take reasonable care of the safety of prisoners detained in its prisons for the service of sentences lawfully imposed on them by the courts. This does not amount, however, to a guarantee that a prisoner will not be injured. (see Muldoon v Ireland [1988] I.L.R.M. 367 approved by the this Court in Bates v Minister for Justice and others [1998]). Prisons may, as an inevitable consequence of the character of persons detained, be dangerous places. Prisoners are entitled to expect that the authorities will take reasonable care to protect them from attack by fellow prisoners. What is reasonable will, as always, depend on the circumstances. As the cases recognise, prison authorities may have to tread a delicate line between the achievement of the objective of protecting the safety of prisoners and the risks of adopting unduly repressive and inhumane measures. They must balance the protective function and possible demand for intrusive searches against the need to permit prisoners an appropriate degree of freedom of movement and human dignity. Counsel for the plaintiff cited the following helpful passage from the judgment of Singleton L.J. in Ellis v Home Office [1953] 2 All ER 149 at 154:
“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, and that includes those who are within against their wish or will, of whom the plaintiff was one. If it is proved that supervision is lacking, and that accused persons have access to instruments, and that an incident occurs of a kind such as might be anticipated, I think it might well be said that those who are responsible for the good government of the prison have failed to take reasonable care for the safety of those under their care.”
5. That passage raises quite directly the principal issue which arises in the present case, namely whether the attack on the plaintiff was the result of a lack of care by the prison authorities insofar as a dangerous knife came into the possession of the plaintiff’s assailant.
6. It is necessary, at this point, to return to consider the facts of the case in a little more detail.
7. Between 10 am and 11 am on 19th January 2003, a number of prisoners were awaiting delivery to them of Methadone from the prison pharmacy. The waiting area was some 50 to 55 long and 7 feet wide and was separated from the main adjoining corridor by a wall surmounted by bars or rails placed so as to permit observation by a prison officer in the corridor of prisoners within that area. The separated area was divided in turn into four successive rectangular areas, called A, B, C and D, which came to be called “cages,” probably because they were separated by barred gates. The pharmacy adjoined area A. Prisoners were admitted to area D and moved through to area B, prior to admission, one by one, to area A, which adjoined the pharmacy.
8. There was controversy about whether prisoners were confined to area B (approximately 7 feet by fourteen feet) or had the entire of areas B, C and D available. This was not resolved. There was also some disagreement about the total number of prisoners who were in the area. The plaintiff said there were about twenty. The prison officers said there were ten to fifteen.
9. Within area A were two prison officers: Mr David Hughes had the task of admitting one prisoner at a time from area B to area A; Ms Sharon Murray was to verify identity, see that the prisoner received his Methadone through a hatch from one of the prison nurses in the pharmacy and that he took it and then to allow him back to the main corridor before the next prisoner was admitted. In the corridor was Prison Officer Hickey.
10. The plaintiff gave evidence that he was sitting or crouching on a bench in area B. There were about twenty prisoners there; it was “packed” and the gate from area C was locked. He felt something coming from behind. He fell on the ground and his attacker, whom he identified as Jeffrey Mitchel, a fellow prisoner, cut and slit his face from his nose and behind his ear into the scalp; he then cut his stomach: “he just kept sliding the blade along my skin.” Following his scream for help, Officer Hughes opened the gate to area A and Officer Hickey came in and dragged the plaintiff out. The plaintiff said that it all took a matter of seconds. He described the knife at first as a “long blade, kind of Stanley blade;” he agreed to it being described as having a retractable blade and later said it was “a long skinny blade, a plastic handle on it and the blade flicks out so you can break the bits off it.” He said it was of the type used for cutting cardboard boxes open.
11. In effect, the defence appears to have accepted at the High Court hearing that it had been established that a knife akin to a Stanley blade was used. This was distinguished from the sort of improvised weapons that prisoners devise from such normal material as can be found in the prison kitchen or bathrooms. An example would be a razor blade melted into the end of a toothbrush. No evidence was called to contradict the plaintiff on the nature of the knife used. The severity of the lacerations sustained by the plaintiff seems at least consistent with the use of an extremely sharp blade. No weapon was found on search after the incident, a fact which struck Mr Outram and the learned trial judge as extraordinary.
12. Mr Outram, both in his report and his evidence, made a number of criticisms of the security regime at Wheatfield prison. It is fair to say that he also found much to praise. However, so far as the present appeal is concerned, his central criticisms were that:
•The system of security both at entry and within the prison was, in his view, inadequate. Based on his single inspection visit in 2006, the system of searching at entry was inappropriately lax; he made a number of criticisms; a knife such as that described by the plaintiff must have come from outside the prison. In addition, prisoners moving from the residential area to another area of the prison should be searched both by hand and by metal detection.
•The holding area where prisoners had to wait prior to entry to area A was, on the plaintiff’s account, overcrowded; there should not have been more than four prisoners in the area at one time. Prisoners awaiting their dose of Methadone are likely to be volatile and disruptive.
13. Mr Outram also thought there should have been CCTV covering the area as well as some means of raising the alarm.
14. I propose to deal, in the first instance, with the appeal by the defendants. The decision by the learned trial judge to award damages to the plaintiff was based entirely on the evidence given, at the judge’s invitation, by Mr Outram, when he had recalled him to the witness box. The witness reiterated, in the first place, that he would not have started from the point where there were many people present in area B. His direct evidence had been to the effect that there should not have been more than four. Pressed to deal with a situation where there were so many, he said that “one officer would be the minimum and that he would have expected two officers to be there.” He was not asked and did not comment on the possibility that part of the injuries—those to the plaintiff’s lower body—might have been avoided.
15. The learned trial judge found that there had been a breach of duty of care in failing to place a prison officer or officers “within the three central units of the Medical Centre and among the prisoners but only to the extent that such a presence would have resulted in an earlier intervention, and break up, of the assault.” This statement seems to imply that the prisoners were in the “three central units,” and not confined to one. The judge did not consider that the presence of such officers would have prevented the plaintiff’s head and facial injuries but “would have been likely to prevent the injuries which the plaintiff sustained to his flank and to his abdomen.” This conclusion did not arise from any evidence given by Mr Outram. The plaintiff, in his direct evidence had criticised the prison officers on the following basis: “they were looking, standing at the gate, so they could have stopped it before they got to my stomach, they could have stopped it.” This evidence, however, relates to a personal criticism directed at the particular prison officers and not to the absence of an additional officer inside area B, as postulated by Mr Outram on recall. I cannot find any basis in the evidence upon which the judge could have reached the conclusion he did.
16. Furthermore, the evidence of Mr Outram appears to have been based upon two assumptions underlying the plaintiff’s evidence namely: firstly, that there were about 20 prisoners within the area; secondly, that they were all within area B, the gate between B and C having been locked. However, the conflicts of evidence on these points had not been resolved and, as I have said, the judge himself spoke of “three central units.”
17. Finally, this crucial and decisive evidence was given following the conclusion of all of the evidence; it had never been part of the plaintiff’s case. In all the circumstances, I consider the decision of the learned trial judge on this point to be unsatisfactory and unsupported by the evidence and I would set it aside.
18. On the other hand, it would not be fair to the plaintiff to dispose of the case without full and proper consideration of the case which he had advanced. The High Court decision amounted to a compromise. For the reasons I have given, I do not think it was a satisfactory one. It seems to me, from a reading of the judgment as a whole and from the perusal of the transcript of the evidence that the learned judge was by no means unsympathetic to the plaintiff’s case and, in some respects at least, was critical of the management of the prison.
19. The learned judge noted that there had been conflicts, in the evidence with regard to “the number of prisoners present in the Medical Centre, the length of time the plaintiff was in the centre…… and as to whether or not the separating gates between the central units were open or locked.” These conflicts were, however, highly material to the complaints advanced by Mr Outram regarding overcrowding. The failure to resolve them meant that the plaintiff’s complaint had not been considered on its merits.
20. The learned trial judge also said that he did not consider it necessary to “determine the nature of the weapon involved.” The nature of the weapon was central to the plaintiff’s complaint. On his evidence, it was of a type similar at least to a Stanley knife; on the evidence of Mr Outram, it was appalling that such a knife should be in a prison. The learned judge said that it would be “unreasonable to expect, or require, the prison authorities to search each and every prisoner every time he exited his cell.” Mr Outram had not suggested that they should. I have referred to his evidence above: his view was that there should have been a thorough search of each prisoner on move from one area to another. In this case, the prisoners had moved from their cells to the caged area for administration of Methadone. The judge, in this way, led himself to the conclusion of that “the prison authorities could not have been reasonably expected to have been in a position to prevent an attack on the plaintiff.”
21. I do not say that the court was compelled to find that the blade was a of a Stanley knife type, but where the evidence seemed to point only one way, it would have been reasonable to expect the judge to give a reason for rejecting the evidence of the plaintiff. Nor do I say that the court was obliged to accept the evidence of Mr Outram. For the purposes of the present appeal, I merely say that, in order for the plaintiff’s case to have been considered properly, it was appropriate to resolve conflicts of evidence which were relevant. Finally, I do not say either that the plaintiff should be disentitled from advancing the case ultimately founded upon the evidence of Mr Outram, when recalled, though it was not always clear what precise criticisms he was making. I would emphasise that, if the plaintiff is to succeed in his claim, it is obvious that he must be able to identify the precise respects in which the defendants were in breach of their duty of care and what standards they failed to meet. Any criticism of the standards operated in the prison should be related to the facts. That, in turn, may give rise to the need to resolve conflicts in the evidence.
22. In all of the circumstances, I am of the view that the High Court decision did not correctly address the issues. For that reason, I would allow the appeal of the defendants and the cross appeal of the plaintiff. I would set aside the order made in the High Court and remit the case to that court for further hearing.
Nyhan v Commissioner of An Garda Siochana
[2012] IEHC 329,JUDGMENT of Mr. Justice Cross delivered on the 26th day of July, 2012
1. Introduction
1.1 On 19th November, 2006, Ms. Baiba Saulite was murdered at her home at Holly well Square, Swords, Co. Dublin. The suspect for the murder was Ms. Saulite’s former spouse, one H.H. who was at the time in prison.
1.2 The plaintiff was born on 30th June, 1970 and was at all material times and remains a member of An Garda Síochána who resides in Dunboyne, Co. Meath. The plaintiff is a married man with children.
1.3 The plaintiff was attested as a member of An Garda Síochána on 13th February, 1991. In the year 2004, the plaintiff, whilst serving in the Community Policing Department of Swords Garda Station, became involved in an investigation into the abduction of Ms. Saulite’s children from the State by her spouse, H.H.
1.4 Ms. Saulite’s children were removed from the State to a Middle Eastern jurisdiction where the Hague Convention did not apply.
1.5 The abduction was originally investigated by another garda and then the plaintiff’s superior, Sergeant Hughes, was asked to get involved in the investigation and then he requisitioned further help from the superintendent which resulted in the plaintiff being allocated to the team.
1.6 This case was, it seems, the first case of child abduction to be processed under the Non-fatal Offences Against the Person Act 1997.
1.7 Mr. H.H. was arrested and remanded in custody and the plaintiff and the other members of the team made extensive inquiries including telephone calls and new technology to ascertain the location of the children.
1.8 It is clear that the plaintiff, Sergeant Hughes and the other members of An Garda Siochana were engaged on a personal level with Ms. Saulite during the investigation and dealt with her distress. It is also clear that the plaintiff and Sergeant Hughes, through excellent police work, achieved what was undoubtedly a very positive outcome in the case.
1.9 Eventually, a judicial colleague, who has not been identified, with remarkable practicality put as a condition of Mr. H.H’s bail that the children be returned to the jurisdiction.
1.10 The children were returned in the summer of 2005 and Mr. H.H. availed of bail.
1.11 Directions from the DPP to prosecute H.H. in relation to child abduction were received and a trial was set for October 2006. Before the trial came to hearing, a number of distressing incidents occurred. First, on 27th February, 2006, there was an arson attempt on the house of Ms. Saulite’s solicitor, Mr. H., who H.H. alleged was too close to Ms. Saulite. The plaintiff was aware of the arson. There was also an investigation into the matter but the plaintiff had no direct contact with the investigation into the arson as he was concentrating on the abduction.
1.12 Subsequently, the plaintiff became aware that another member of An Garda Síochána was informed through intelligence sources of a direct threat to kill Mr. H. In August, 2006, there was an arson attack on Ms. Saulite’s car which was parked beside her house. This was being investigated by the gardai in Malahide. The plaintiff was aware of this in general but again had no formal contact with this investigation.
1.13 As a result of the arson attack, Ms. Saulite moved house. Ms. Saulite advised the plaintiff and Sergeant Hughes that she was in fear of her life due to intimidation and phone calls H.H. was making while in prison. H.H. was at this stage in prison on other non related matters. Ms. Saulite, however, declined to make any sort of formal complaint to the plaintiff or any member of An Garda Síochána.
1.14 The abduction case against H.H. proceeded to trial and H.H. pleaded guilty and was remanded in custody awaiting a victim impact report which had been requested by the judge.
1.15 On 14th November, 2006, Ms. Saulite visited Sergeant Hughes and the plaintiff in Swords Garda Station with a prepared handwritten victim impact report. The report was handed to Sergeant Hughes, and he glanced at it. He ascertained that the handwritten document was not a proper victim impact report and would not be allowed to be read in court and Ms. Saulite was advised what ought to be the general contents of a proper victim impact report. Neither Sergeant Hughes nor the plaintiff had read the end of the victim impact report at the time but suffice to say the following sentences occurred at the end of the unread document:-
“In my new house I began to get knocks on my door at night time and no one there. I have found I am being followed by car. [H.H.] has told me he knows my new address and where my son is going to school. If I have any relationship will any man I will be very sorry and it would be my fault that the man’s life would be ruined. He constantly blames my solicitors for ruining his life and he will pay for it.
At the moment I am very scared for my life because [H.H.] is blaming me for everything that has gone wrong in his life. All I want is some peace for my children and myself to live a normal life, safe and happy knowing that this man cannot hurt us anymore. My children are becoming bright, happy, intelligent individuals and this is what I wish to continue like.”
1.16 Ms. Saulite gave a copy of this document to Sergeant Hughes who had it photocopied and placed the copy in his locker and Ms. Saulite agreed to write a new report.
1.17 At this meeting, Ms. Saulite also described how she had been visited by an associate of H.H. who advised her that there were threats on her solicitor, Mr. H’s, life. Ms. Saulite phoned Mr. H. who contacted the gardai. The gardai called and interviewed Ms. Saulite and the associate.
1.18 Ms. Saulite informed Sergeant Hughes and the plaintiff that the detectives from Swords were dealing with this incident. She was happy about this. She did not want Sergeant Hughes or the plaintiff to get involved.
1.19 Ms. Saulite advised the plaintiff that she had visited her partner in prison and had told him, that she was now going to refuse to have anything more to do with him that she was not going to bring the children to prison. He was very annoyed by this and he blamed the solicitor and the gardai for what happened to him.
1.20 At this meeting Ms. Saulite stated that she feared for Mr. H. and for Sergeant Hughes and the plaintiff.
1.21 However, when the plaintiff and Sergeant Hughes asked Ms. Saulite for specific information, she indicated she had none and in fact the plaintiff gave evidence that this information did not worry him as he was dealing, as he saw it, with a family law matter and Ms. Saulite did not want to make a formal complaint about her concerns.
1.22 This was the last occasion that the plaintiff saw Ms. Saulite and as stated she was murdered on 19th November, 2006.
1.23 As a result of the above events and the aftermath thereof, which is discussed below, the plaintiff has brought the proceedings herein against the defendants.
2. Pleadings
2.1 The plaintiff by personal injury summons dated 19th December, 2008, initiated these proceedings for damages of personal injury caused by reason of the alleged negligence, breach of duty and breach of contract of employment on the part of the defendants. It is alleged that in breach of the terms and conditions of his employment, he was treated in a “highly inappropriate manner and was subject to intolerable working conditions” whereby the defendants allegedly failed to provide suitable working conditions so that on 27th March, 2007, the plaintiff came under the care of a consultant psychiatrist.
2.2 In the particulars relating to the commission of the wrong, the nature of the plaintiff’s case becomes clear. It is said that by reason of the plaintiffs acute involvement in the abduction investigation which centred on the activities of someone who is a “leading criminal” and that after the events described, the plaintiff feared for his own life and advised the defendants of the stress of the adverse working conditions to which he had been subjected. But the defendants allegedly ignored and disregarded the plaintiff and they failed to provide any reasonable level of help or support or protection to the plaintiff and accordingly the plaintiff felt he was isolated in An Garda Síochána.
2.3 The plaintiff in the proceedings alleges that the actions of the defendants intensified to the point where he was served with “discipline documents” to inquire as to whether the plaintiff was in possession of information or documents which meant he knew or ought to have known at the time of the existence of a real and immediate threat to the life of Ms. Saulite and failed to take measures that might be expected to avoid that risk.
2.4 As a result of this disciplinary inquiry, the plaintiff believed he was being scapegoated. The plaintiff goes on in the proceedings to allege that the first named defendant was engaged in a “cover up” and the disciplinary proceedings were an attempt to protect more senior or other officers who in truth and in fact had and were in possession of specific threats to Ms. Saulite’s life at a much earlier time. The plaintiff characterised the nature of the matters that were being investigated under the disciplinary procedures as an allegation that the plaintiff was guilty of manslaughter.
2.5 The plaintiff alleges that he was not cleared of any wrongdoing until 8th July, 2008, over a year from the commencement of the disciplinary inquiry.
2.6 In 1999 the plaintiff had previously been a victim of a violent attack and had suffered Post Traumatic Stress Disorder (PTSD) and as a result he also suffered other injuries.
2.7 In further, the particulars delivered, the plaintiff lists a number of meetings he had with the various members of An Garda Síochána hierarchy. He alleges that his complaints into his allegations of scapegoating and of being bullied and harassed because these concerns were not properly addressed by the defendants.
2.8 In the further particulars of injuries dated 21st December, 2010, the plaintiff describes four years of “relentless bullying and harassment and isolation by his employers”. He states that his predicament was that he was victimised and scapegoated by management in order to cover deficiencies in An Garda Síochána. He further alleges that the disciplinary action was an attempt to frame him on a false charge which could have been construed as manslaughter and that the plaintiff had repeatedly raised issues which he required to be investigated by garda management but they failed to act upon his complaints.
2.9 On 10th June, 2011, the plaintiff by further particulars stated he applied for aggravated, exemplary and punitive damages. The basis for this claim was that the activities of the defendants were, allegedly, wilfully done calculate to cause the plaintiff injury and damage, that the plaintiff was hatched and pursued with the object of a scapegoating scheme and that the steps taken by the defendant were conscious and deliberate and were conducted in reckless disregard of the plaintiff and wanton abuse of authority. Further allegations are made including abuse of process and that the defendant’s “actions and activities were corrupt and/or were criminal in character”.
2.10 The defendant’s Defence is a full denial of all matters together with a plea of contributory negligence against the plaintiff for an alleged failure to engage with the defendant’s attempts to rehabilitate him.
2.11 After the opening of the case, Ms. Bolger proceeded to withdraw the further particulars of claim of 10th June, 2012.
2.12 Accordingly, the case made on behalf of the plaintiff, was a claim for damages for personal injury arising from what is commonly referred to as bullying and harassment.
3 Bullying and Harassment
3.1 This Court in the case of Kelly v. Bon Secours Health System [2012] IEHC 21 (Unreported, High Court, Cross J., 26th January, 2012), emphasised that there is no distinctive tort of bullying and harassment. Whether the defendant has a contract of employment with the plaintiff does not alter the situation in that the defendants clearly owe a duty of care not to expose the plaintiff to injury. One of the sub-aspects of this duty may be the question of bullying and harassment.
3.2 In the majority of cases under the heading of “bullying and harassment”, the bullying concerned is usually one or more employee of a defendant allegedly bullying the plaintiff.
3.3 In this case, as well as bullying, of course, the plaintiff alleges breach of contract, scapegoating of the plaintiff in order to protect more senior officers and isolating him and ignoring his complaints. In effect, the plaintiff is alleging a conspiracy by the defendants against him.
3.4 In most cases involving bullying and harassment, the key issue to be addressed is whether the employer had or ought to have had knowledge of the activities of employees.
3.5 In Quigley v. Complex Tooling and Moulding Limited [2009] 1 IR 349 at para. 13, Fennelly J. adopted the definition of “workplace bullying” at para. 5 of the Industrial Relations Act 1990 (Code of Practice detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 as being an accurate statement of the employers obligations as follows:-
“Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”
Fennelly J. went on to state:-
“Counsel for the defendant submitted, and I would accept, that bullying must be:-
• repeated;
• inappropriate;
• undermining of the dignity of the employee at work.”
3.6 In the plaintiffs case it is clear that all of the allegations relate not to any of the witnesses or management figures who gave evidence but to the first named defendant himself and his agents who were engaged in the alleged campaign against the plaintiff and also that they failed to address the plaintiffs concerns in this regard.
3.7 If the plaintiff proves such a campaign, unlike most plaintiffs in bullying cases, he does not have to establish that any of the activities complained of were known by the first named defendant as he is alleging that it was the first named defendant who was deliberately orchestrating and organising his bullying. Ms. Bolger on behalf of the plaintiff contended that even if the plaintiff is incorrect in his view that there was an orchestrated campaign or conspiracy by the first named defendant, the defendants were still liable to the plaintiff for the manner they dealt with or rather failed to deal with his complaints.
3.8 As I stated in Kelly, in my view, the best summary of the questions to be addressed in a case such as this was set out by Clarke J. in Maher v. Jabil Services Limited [2005] 16 ELR 233, as follows:-
“(a) had the plaintiff suffered an injury to their health as opposed to ordinary occupational stress;
(b) if so, was that injury attributable to the workplace and;
(c) if so, was the harm suffered to the particular employee reasonably foreseeable in all the circumstances.”
3.9 These three questions, so aptly posed by Clarke J. are, as agreed by Ms. Bolger, subject to the pre-existing requirement that the plaintiff establish an actionable wrong in the form of negligence, breach of contract or breach of duty or in this case the quasi conspiracy which is clearly alleged in what has been described as the cover-up. Whether or not any injury results from an actionable wrong is, of course, measured by the standard of reasonableness.
3.10 Rather than proceed through the entirety of the evidence, I think that this case should be best analysed first by dealing with the issue of whether there was a deliberate conspiracy to scapegoat the plaintiff in order to protect senior members of An Garda Síochána who were allegedly aware of specific threats against Ms. Saulite which they allegedly ignored. Second, irrespective of the answer to the first issue, I will consider whether the responses of the defendants to the plaintiff and his concerns and their relationship with him in dealing with these concerns amounted to a breach of their duty of care so that it is an actionable wrong. Finally, I must consider the nature of any injury suffered by the plaintiff, as the plaintiff contends that the defendants’ bullying or negligence or breach of duty included the manner in which they addressed the injuries or illness of the plaintiff. Before I embark upon this analysis I will briefly deal with the plaintiffs past experiences in An Garda Síochána.
4 The Plaintiff’s Previous History
4.1 As stated above, the plaintiff joined the force in 1991. He sustained an injury in the course of his duties. In 1999 he was involved in a violent fracas working as a garda in Dundrum. Some eighteen gardai were involved in the arrest of a violent suspect appear to point a gun at the gardai. The suspect indicated that he was HIV positive and then blood was sprayed and an attempt was made to set fire to an aerosol canister fully of gas.
4.2 As a result of this incident, the plaintiff suffered PTSD, was tested for AIDS this was negative, nevertheless he came under psychiatric care. He suffered panic like symptoms, admitted to an increasing alcohol consumption and reported to Dr. Shanley, Psychiatrist, that his superiors were monitoring him closely and his work atmosphere was unfriendly. Subsequently there was an incident in which allegations were made that the plaintiff had used his baton excessively and a file was sent to the DPP in relation to his behaviour. The plaintiff advised Mr. Michael Dempsey, a senior clinical psychologist, that he was aggrieved by this incident and other matters and felt he was being harassed in work by his superiors. He reduced his alcohol consumption and returned to normal duties of his own accord.
4.3 The plaintiff subsequently was transferred to the Swords Garda Station and was on community policing duties which he enjoyed.
5 Did the defendants scapegoat the plaintiff in order to hide a prior knowledge of distinctive threats on Ms. Saulite
5.1 The plaintiff heard of the murder on Sunday night when he got a phone call from Sergeant Hughes. He was clearly shocked when he received a further phone call from his local superintendent to advise him that he was being offered garda protection. The plaintiff did not know why he was being given this protection but it since transpired that Sergeant Hughes had indicated that this should be done.
5.2 The next day, the plaintiff went to Swords Garda Station. There was a murder conference going on, however, neither the plaintiff or Sergeant Hughes attended. The plaintiff suggests that he was not invited and was being kept “out of the loop”. But it is clear that the plaintiff could have attended but did not. I fully accept that the plaintiff was still in shock as the plaintiff and indeed Sergeant Hughes had clearly been closely involved with Ms. Saulite and were shocked that somebody for whom they rightly believed that they had performed their duty magnificently had been murdered.
5.3 It was on this occasion that the plaintiff heard about Ms. Saulite’s concerns as to her safety as contained in the last sentence of the draft victim impact statement when it was read by Sergeant Hughes.
5.4 Sergeant Hughes subsequently advised the plaintiff that Detective Inspector O’Sullivan had told him that protection had previously been sought for Ms. Saulite in view of information that was in possession of An Garda Síochána but that this protection had been refused for Ms. Saulite and her solicitor, Mr. H.
5.5 The now Detective Superintendent O’Sullivan swore, and I accept, that he was concerned for Sergeant Hughes who was upset and stressed. He apparently did indicate that there had been reports in relation to threats to Mr. H. but that he had no specific information in relation to reports of specific threats against Ms. Saulite immediately prior to her murder and did not suggest to Sergeant Hughes that he had any specific information of threats against Ms. Saulite or that protection had been refused for her.
5.6 I accept that Sergeant Hughes believed that he had been told by Inspector O’Sullivan that the gardai were in possession of threats to Ms. Saulite but I believe that Sergeant Hughes is incorrect in his recollection, no doubt due to the extreme stress he was under at the time.
5.7 At a very early stage in the matter, I believe that the plaintiff and Sergeant Hughes both became convinced that because of what had been stated by Ms. Saulite at the end of her draft victim impact report and the fact that it had not been read by either Sergeant Hughes or the plaintiff, that they would be scapegoated by the garda authorities in order to cover up for what they believed to have been a failure by the garda authorities to provide protection to Ms. Saulite in respect of direct threats which the authorities were aware.
5.8 This belief is, in my view, the core of all that has occurred since then. Sergeant Hughes was of similar belief and initiated separate proceedings which have been compromised.
5.9 On 21st November, 2006, the day after the plaintiff first became aware of the content of their draft victim impact report, the plaintiff reported sick and unfit for duty. He had consulted his general practitioner the previous evening. He was very shocked about the contents of the victim impact report and of what he heard and understood, Inspector O’Sullivan had said about protection having been refused to Ms. Saulite. He also said he was shocked in relation to the protection on his house that he was worried for himself and his family and the threat he feared from H.H.
5.10 The plaintiff together with Sergeant Hughes requested through Sergeant Kavanagh, the Sergeant in charge of Swords Garda Station that a threat assessment be made on him.
5.11 On 22nd November, 2006, a press release from An Garda Síochána in relation to the murder of Ms. Saulite referred to threats against Mr. H. and stated that he had been given extensive crime prevention advice and Ms. Saulite had also been given advice regarding her property and personal safety.
5.12 The statement went on to state:-
“At no time, prior to her tragic death were gardai aware of any specific threat against the life of Ms. Baiba Saulite and no complaints were received by gardai for any person in this regard.
As part of the murder investigation inquiries are ongoing in the Hollywell area and the gardai have now learned that Ms. Saulite expressed concerns to friends and neighbours regarding her safety. We have also established that in the course of preparing a document for court use the sentencing of her husband, Ms. Saulite expressed concerns for her safety and appeared to be somewhat in fear of him.
The Garda Commissioner is now examining when and to whom this information was known.”
5.13 The plaintiff and Sergeant Hughes were of the view that this statement was an example of them being scapegoated as being the only two members of the force who would have possibly had knowledge of the victim impact report. In view of my findings, I do not believe any scapegoating was involved in the press statement. The only possible reference to direct threats to Ms. Saulite was in the draft victim impact report.
5.14 The plaintiff was then concerned that without notice to him, the protection that had been afforded to his house was removed.
5.15 The plaintiff seems to believe that this was removed as part of a campaign by the authorities against him but there is no evidence to support such a belief.
5.16 I must conclude that the protection was removed after the garda authorities came to the conclusion that there was no significant threat against the plaintiff. It is unfortunate that the plaintiff was not advised of this fact until much later in time.
5.17 Following the press statement, Inspector Mangan was requested to carry out a fact-finding investigation to report the level of knowledge in the possession of the gardai prior to the murder.
5.18 This report concluded that Sergeant Hughes had visited Ms. Saulite at her home in October and found her distressed as she was being intimidated by H.H. from prison but that she did not want to make a formal complaint.
5.19 The report further found that 14th November, 2006, Ms. Saulite met with Sergeant Hughes and the plaintiff to furnish the draft victim impact report with the consequences as outlined above.
5.20 Inspector Mangan concluded that Sergeant Hughes and Detective Sergeant Mangan had submitted a comprehensive report dealing with the deceased, and the plaintiff had also put in a report. Inspector Mangan reported that none of these persons were in possession of specific threats against her and that she had not made a formal complaint to any member. Inspector Mangan also concluded that the handwritten document submitted would not constitute a proper victim impact report and could not have been accepted by the courts. Inspector Mangan concluded that Sergeant Hughes and the plaintiff “completed a complex investigation in a very professional manner”. Having made that conclusion, he ended by stating:-
“There certainly was knowledge in existence available to the gardai in relation to threats from (H.H.) to Biaba Saulite. The members of An Garda Síochána involved with Biaba Saulite readily admit this in their reports. To clearly outline the facts in existence, I respectfully suggest that the matter be formally investigated.”
5.21 Following form this report, Chief Superintendent Phelan was appointed to investigate possible breaches of discipline on the part of Sergeant Hughes and the plaintiff.
5.22 The plaintiff was then served with a notice under Regulation 9 of An Garda Síochána (Discipline) Regulation 1989, advising that Superintendent Phelan had been appointed investigating officer and investigated the possibilities that he may have been in breach of discipline as follows:-
“It appears that you were in possession of documentation and information as a result of meetings with Ms. Baiba Saulite, and being in possession of same you ought to have known at the time of the existence of a real and immediate risk to the life of Ms. Baiba Saulite, and failed in your duties to take measures that might have been expected to avoid that risk.”
5.23 The plaintiff apparently was advised by his legal advisers that this disciplinary investigation was akin to being charged with the manslaughter of Ms. Saulite. The court finds that advice extraordinary as the plaintiff was never charged with any offence. Superintendent Phelan was merely investigating the possibility of an offence as he was obliged to do under An Garda Síochána (Disciplinary) Regulations.
5.24 This investigation followed the Mangan report which while exonerating the plaintiff had also recommended that a formal investigation be made of the extent of knowledge of members concerned.
5.25 The plaintiff states and I accept that he believes that this investigation was again part of the scapegoating of the plaintiff and Sergeant Hughes but in the view of the court the investigation cannot be seen in that light and clearly cannot be seen as a charge of manslaughter or indeed of any charge against the plaintiff.
5.26 The Regulation 9 notice was served on the plaintiff on 18th June, 2007 and on 8th July, 2008, Superintendent Phelan concluded that there was no evidence to suggest that the plaintiff was in possession of documentation or information or that he knew or ought to have known of the existence of a real and immediate risk to the life of Ms. Saulite or had failed in his duty.
5.27 It is unfortunate that this report which entirely vindicated the plaintiff took over one year to be finalised.
5.28 The plaintiff complains that the one year delay was part of a campaign against him. The court does not accept that fact. The court is aware that investigations do take time and that the gardai have many calls on their resources.
5.29 The court, however, fully accepts that having the possibility of disciplinary charge hanging over the plaintiff for a period such as it was could well have added to any medical distress or depression that the plaintiff was suffering.
5.30 The court could only conclude that the disciplinary investigation was improperly carried out if it concluded that its purpose was in order to protect members of the gardai or senior management who had specific threats to the life of Ms. Saulite which they had failed to act upon. The failure to conclude the investigation until July 2008, while unfortunate, was not a breach of any duty owed to the plaintiff.
5.31 The court is not of the view that any case has been made out that senior garda management or gardai were aware of specific threats against Ms. Saulite prior to her murder.
5.32 At an early stage of the child abduction investigation, Ms. Saulite had expressed fears in relation to H.H. but subsequent to those fears, there had been an apparent reconciliation between the parties, the plaintiff and other members of the force indicated that frequently in matrimonial type disputes, some party may express fears for their safety but if reconciliation is achieved these matters are not in fact problematic. The court also accepts that Ms. Saulite did make reference to fears for her safety in the draft victim impact report. However, neither Sergeant Hughes or the plaintiff are to be blamed for any failure to read victim impact report. Ms. Saulite indicated that she did not want to make formal complaints at that stage.
5.33 The garda authorities were also aware of specific threats to the life of Mr. H. and had initiated protection for him.
5.34 Furthermore, the garda authorities, and indeed the plaintiff and Sergeant Hughes were aware of the arson attack on Ms. Saulite’s car and that an individual who was an associate of H.H. had been questioned by the gardai in Ms. Saulite’s property but again the focus of the threats were not on Ms. Saulite but on Mr. H.
5.35 It is the court’s view that the focus of the plaintiffs belief which is by now unshakable centred around understandable but over scrupulous guilt on his part that he might have done more had he read the victim impact report and also the misunderstanding by Sergeant Hughes of Inspector O’Sullivan’s statement to him on 20th. The plaintiff was also focused on a realisation of the potential for violence from H.H. and the various threats for which H.H. had been responsible, both against Mr. H. and, indeed, against the plaintiff himself.
5.36 The plaintiff’s belief in relation to knowledge of specific threats among the higher ranks of the gardai was further strengthened when he returned to work and believes he saw among files in the office, references to various threats to Ms. Saulite. The plaintiff, however, could not be specific in relation to what these matters were and there is no evidence that any files were in existence that have not been made available to the court or that any of the files indicated a specific threats to Ms. Saulite prior to her murder.
5.37 The plaintiff was further undoubtedly strengthened in his belief as a result of a consultation which was attended by Garda Walsh and his solicitor and then senior counsel who were also acting for Sergeant Hughes in his case.
5.38 The court heard evidence from Sergeant Hughes’ then senior counsel as well as his solicitor. They attended a consultation with Sergeant Walsh and he stated that he had been made aware from an intelligence source of specific threats against Ms. Saulite from H.H and had conveyed these reports to his superiors.
5.39 Sergeant Walsh in evidence denied that he had made such statements at the consultation and reiterated what he said at a subsequent consultation that he had only been advised by his informant of threats to Mr. H., the solicitor.
5.40 While undoubtedly a statement by Sergeant Walsh that he had been aware from an informant of specific threats to Ms. Saulite and had made this knowledge available to his seniors was precisely the sort of information that the solicitor and counsel for Sergeant Hughes would have been delighted to hear at consultation, I do not believe that they misheard Sergeant Walsh. I believe that at the consultation attended by Sergeant Walsh that he did indeed tell them that he was aware of threats against Ms. Saulite from his informants.
5.41 That, however, does not end the matter because I believe that when Sergeant Walsh advised solicitor and counsel of this fact, he was confused and mistaken. He was not aware of the precise purpose of the consultation and has no notes or file or statement in front of him.
5.42 I believe that he misheard or misunderstood the questions that he was asked and gave the wrong impression that he was in possession of information of specific threats against Ms. Saulite as in fact he was not.
5.43 I have studied the report marked “secret” of Garda Walsh dated 11th October, 2006, in relation to confidential information, given by an informant and it is clear that this secret report which gives specific details of an individual who had been hired to murder Mr. H. and all of the details relate to Mr. H, none of the details and no information in the secret report relate to Ms. Saulite.
5.44 I do not believe that Garda Walsh either perjured himself in evidence or that a top secret report was doctored for the purpose of this trial by senior management in order to give the impression that the only person referred to therein was Mr. H.
5.45 Accordingly, the court does not accept that the gardai were in possession of information of specific threats to the life by Ms. Saulite prior to her murder.
5.46 The only information of a possible threat was of that contained in the victim impact report but this threat was not specific and, as was concluded in the various inquiries, no blame should attach to either Sergeant Hughes or the plaintiff for their failure to read the document.
5.47 It follows from the above that as there was no specific threats known to the gardai at senior level that there were no basis for any cover up or scapegoating of the plaintiff. The plaintiff is fundamentally in error in relation to this belief.
5.48 The court is of the view that it is very unfortunate that the plaintiff carne to the fixed idea that there was in fact a conspiracy against him in order to protect senior members of An Garda Siochana. The court accepts that these allegations were made in the pleadings due to the plaintiff’s sincere belief and clearly on his instructions. The plaintiff stated in evidence that he carne to fear as much the persecution and indeed the criminality (planting evidence in his home etc.) from the defendants as any violence or threats by H.H. This attitude clearly and understandably affected the responses of the defendants to these proceedings and in these proceedings. The court believes that the particulars delivered on 10th June, 2011, escalated the situation. The court is pleased that these particulars were withdrawn prior to any evidence being given. Had the case been conducted merely as to the manner in which the defendants dealt with the plaintiffs concerns, the court is of the view that the issues involved would have been considerably less intractable. The court notes the goodwill towards the plaintiff personally as stated in the case by and on behalf of the defendants and accepts that this goodwill is genuine. The court also notes that whatever about the past, the plaintiff now has expressed a desire to return to the force as soon as possible and again accepts this desire as genuine.
5.49 These conclusions, however, do not end the matter as the plaintiff clearly also makes the case that the manner in which the defendants dealt with his concerns amounted to negligence or bullying and harassment.
6 The manner in which the defendants dealt with the plaintiff’s concerns
6.1 In Garda Nyhan’s case, I have come to the same conclusion that I came to in the Kelly case (above) and that Herbert J. came to in the case of Sweeney v. Board of Management of Ballinteer Community College (Unreported, High Court, 24th March, 2011) that the plaintiff came to believe that almost every reaction of the management was directed against him and even developments that seemingly were for his benefit were in fact part of a grand design to bully or harass him and if not part of a grand design to injure the plaintiff, were so carried out that as a matter of fact they contributed to an exacerbated his injuries. Of course, to so conclude is not by any means the end of the matter.
6.2 It is necessary to deal with the plaintiffs main concerns in order to ascertain whether the defendant’s response to them either individually or collectively represented a breach of the duty of care the defendants owned to the plaintiff. In taking this approach, I will not, of course, be able to list all the evidence of each interaction between the plaintiff and the defendants.
6.3 On 29th November, 2006, the plaintiff addressed the Commissioner of An Garda Siochana advising him:-
“I now have serious concerns for my personal safety and those around me. I request that something be done in relation to this…”
6.4 Following this letter which the plaintiff accepts was unorthodox, he received a visit from Sergeant Tim Troy in charge of local crime unit of his district.
6.5 The plaintiff outlined his concerns to Sergeant Troy but believes that nothing was done about it and some days later he noticed the protection of his house was withdrawn.
6.6 On 3rd December, 2006, the plaintiff gave a written report of a suspicious telephone call made to his old family home in Blackrock, Co. Dublin which was answered by his mother and the plaintiff stated “the caller asked my mother ‘do you know Declan’. My mother replied ‘Declan who’. The caller then asked ‘Declan Nyhan, does he live here, is this his home?’ the reply was given as no and the caller then hung up”. The plaintiff indicated that his mother was concerned about this and so was he and requested that the matter be investigated.
6.7 The plaintiff made a number of requests that this matter be dealt with over the coming months and indeed years and it was not until February 2009 when Inspector Hanrahan who had been reminded about the matter at a meeting with the plaintiff and his solicitor in the solicitor’s office towards the end of 2008, advised the plaintiff that the phone number had been traced and gave certain details to the plaintiff indicating that there was nothing to worry about. It should be noted that Inspector Hanrahan’s attempted reassurance did not in fact reassure the plaintiff and there is some, I think not very significant, difference between Inspector Hanrahan’s and the plaintiffs recall as to the precise details of the caller to the plaintiffs mother which were given to the plaintiff.
6.8 It is clear that Inspector Hanrahan once he got involved was able to quickly trace the number and attempt to put the plaintiff at his ease. I am advised by Inspector Hanrahan that there is always a long delay in relation to obtaining such information from the telephone companies even in murder cases but I do conclude that the delay in this case was unacceptable.
6.9 I believe that, in fact, the defendants who had clearly concluded very early on in the matter that there was no threat to the plaintiff from H.H. did not pay sufficient heed to the plaintiffs concerns about the telephone call.
6.10 This failure though regrettable does not, in my view, amount to a breach of any duty of care of the defendants to the plaintiff nor could it be said to be an incident of bullying and harassment or negligence. The defendants were aware of the plaintiffs stress and injury but I hold that they reasonably believed that they had sufficiently reassured the plaintiff.
6.11 The plaintiff, also at his request had a meeting of a reasonably short duration with the garda welfare officer. The plaintiff had limited further engagement from the garda welfare office, with the exception being a contact around one Christmas in relation to financial difficulties. The plaintiff feels that he was ignored by the welfare office but the welfare officer indicated that it was, in effect, up to the plaintiff to request assistance.
6.12 Nevertheless, certain suggestions to the welfare officer from his seniors that he contact the plaintiff were not followed through. Again, I do not believe that this constituted a breach of duty on the part of the defendants or any manifestation of bullying and harassment by them. If the plaintiff wanted to engage with the Garda Welfare Officer, this service was available to him.
6.13 The plaintiff made repeated requests that a threat assessment be made for him. Subsequently, he stated that he required a written threat assessment but clearly was orally advised at a meeting with Superintendent Curran on 10th May, 2007 that there was no intelligence relating to any threats against him emanating from H.H. Chief Superintendent Curran stated in evidence, and I accept, that he viewed the plaintiffs position was becoming entrenched and that nothing Chief Superintendent Curran could say would change that perception.
6.14 It was submitted on behalf of the plaintiff that he was entitled to what is described as a “risk assessment” under the provisions of s. 19 of the Safety, Health and Welfare at Work Act 2005.
6.15 Section 19 provides:-
“(1) Every employer shall identify the hazards in the place of work under his or her control, assess the risks presented by those hazards and be in possession of a written assessment (to be known and referred to in this Act as a ‘risk assessment’) of the risks to the safety, health and welfare at work of his or her employees, including the safety, health and welfare of any single employee or group or groups of employees who may be exposed to any unusual or other risks under the relevant statutory provisions.”
6.16 It is the view of the court that the plaintiff insistence on a written safety assessment in this regard is misconceived. Risk assessments as required by s. 19 are applicable to An Garda Síochána as well as other employers.
6.17 The requirement for a “risk assessment” in writing relates to perceived hazards in the workplace. “Risk assessments” have no relevance to the ascertaining by the members of An Garda Síochána of risks of a particular threat of violence to the plaintiff in operational terms. Members of An Garda Síochána are frequently “at risk” as a result of their dealings with dangerous criminals. The concept of a health and safety requirement for a “risk assessment” plays no part in any ascertaining of such operational risks or hazards to the members of the force. It would be to do violence to the language of the statue and indeed to commonsense to hold that s. 19 had any application to the plaintiff’s situation.
6.18 In this case, the plaintiff was given repeated assurances on behalf of the defendants that there was no risk to him. This represents the defendants’ proper response to the plaintiff’s requests that any threat to him be ascertained. The plaintiff declined to accept these assurances. The court does not believe that had any of these statements been conveyed to the plaintiff in writing that he would have been any more reassured by them.
6.19 On 2nd April, 2007, the plaintiff returned to work having been advised by a security report immediately after the murder that he should vary his route to and from work and comply with other security considerations.
6.20 He returned to normal duty but after a few weeks his anxiety levels built up and took sick leave on 15th May, 2007. It should be noted that this was some five days after the above meeting with Superintendent Curran when he had tried to reassure the plaintiff that he was not under any threat.
6.21 It was subsequent to the plaintiff going off work on this occasion that the disciplinary process discussed above was served on him.
6.22 On 25th March, 2008, the plaintiff lodged a formal complaint of bullying and harassment under the defendants’ procedure.
6.23 This complaint firstly was on the basis that the investigation into what information was known to the gardai prior to the murder of Ms. Saulite focused solely on the meeting that Ms. Saulite had with the plaintiff and Sergeant Hughes on 14th November, 2006 and as a result of that focusing the plaintiff believed he that he was being victimised. The plaintiff also complained in relation to the nature of the disciplinary inquiry and the questions he was being asked.
6.24 The plaintiff specifically notified the defendants of his concerns:-
(a) that prior to the murder the gardai had gathered intelligence and forward the same to garda authorities relating to the threats to the life of Ms. Saulite;
(b) that members of An Garda Siochana had visited Ms. Saulite in weeks prior to her murder and advised her regarding threats and personal safety;
(c) that these members recommended that protection be placed on Ms. Saulite and forward same to garda authorities;
(d) that on 16th November, 2006, a member of An Garda Siochana took a written report detailing the concerns of Ms. Saulite which was forwarded to garda authorities; and
(e) that based on all of this information, members of senior rank within the garda authorities knew or ought to have known at the time of the existence of real immediate risk to the life of Ms. Saulite and failed in a duty to take measures that might have been expected to avoid that risk.
6.25 The court has already dealt with the knowledge of An Garda Síochána in particular the plaintiff is incorrect that members of An Garda Síochána had visited Ms. Saulite, recommended that protection be placed upon her.
6.26 The plaintiff also complained that none of the above information was at his disposal prior to her murder. In fact the plaintiff was generally aware of the situation concerning Ms. Saulite during his dealings with the child abduction issue and any failure to make him more informed or to better coordinate the various matters being investigated, while probably regrettable in hindsight from the point of view of the cohesion of the investigations, do not represent any breach of any duty of care by the defendants owing to the plaintiff.
6.27 The plaintiff’s second general complaint was that he had reported sick and unfit due to work related stress on 21st November, 2006 and since that date he had reported his concerns to member of garda management, including the Commissioner and did not receive a satisfactory reply. He then said that he was cut off and that no determination had been made by management in relation to his illness been attributable to the execution of his duty and that this delay is added to his concerns. The treatment by the defendant of the plaintiff’s illnesses and medical issues will be dealt with in a later section.
6.28 On 9th April, 2008, the plaintiff was again informed, this time by Inspector Hanrahan that as a result of a detailed examination of the murder file that there was no threat to him but again the plaintiff did not accept this.
6.29 On 15th July, 2008, the plaintiff attended a meeting with Superintendent Curran and was advised that his complaints did not come within the ambit of the bullying and harassment policy. The court is of the view that the decision by the defendants in this regard was not unreasonable as the plaintiffs complaint, as recounted above, relates to concerns of a conspiracy or a “cover-up” and did not tie in with the conventional view of bullying which in the Garda procedures seems to relate to the bullying of one member of the force by another or others and not to the activities of which the plaintiff complains.
6.30 As stated two days later on 17th July, 2008, the plaintiff was advised by Inspector Hanrahan that the Assistant Commissioner was satisfied that there had been no breach of discipline disclosed against him and that in accordance with Regulation 10(2)(a) of the 1989 Regulations the proceedings against him were discontinued.
6.31 Subsequently there were a number of meetings between the plaintiff and various senior members of An Garda Síochána up to the rank of Chief Superintendent, in which the plaintiff either alone or in conjunction with members of the Garda Representative Association (GRA) brought his concerns to the defendants. These concerns were similar to what had gone before. In all of the various meetings between the plaintiff and the defendant the plaintiff generally, if not invariably, brought these concerns to the attention of his superiors by a written statement. The defendants took the view that the plaintiff should put the matter behind him and he would be accommodated in order to facilitate his return to work. The plaintiff makes a number of points which will be discussed in the section dealing with the plaintiffs medical situation to the effect that the defendants were wrong to have this focus on the future and ought to have addressed the plaintiffs past concerns.
6.32 The court is of the view that the defendants’ attitude was that the plaintiffs concerns had been dealt with. The disciplinary investigation had been discontinued and the plaintiff had been exonerated. Indeed, the plaintiff had been repeatedly advised that there was no threat against him. The plaintiff was also advised that senior gardai were not aware of any specific threats against Ms. Saulite. The plaintiff was not prepared to accept the defendant’s contentions in this regard.
6.33 In November 2009, the plaintiff agreed to return to work. He had been offered the option of a “easy” job or a posting elsewhere but he chose to go back to his former position of community policing. On the plaintiffs first day back he went about collecting his uniform with his senior officer and on second day he was put to office work. He says that at this stage he came across a number of files in the offices of the garda station relating to the murder which reinforced his belief that members of An Garda Siochana of a senior rank had prior knowledge of specific threats to Ms. Saulite. The plaintiff did not state the nature of these files.
6.34 The plaintiff states that his superior officer advised him that he would be required to drive a “riot van” that Friday evening.
6.35 The court had heard the evidence from the plaintiff and from his superior officer, and the court accepts, that the plaintiff was not asked to drive “a riot van”. He was asked to drive a van. This was a normal part of community policing. It may have involved the plaintiff interacting with intoxicated young members of the public and may have involved him working late into the night. However, the court also accepts that the plaintiff never made any concerns in this regard known to his superiors. However, the plaintiff did report sick and unfit for duty and has remained out of work since that time.
6.36 The plaintiff’s attempts to invoke the bullying and harassment procedure were resisted by the defendants on the basis that the complaints did not amount to bullying and harassment. The plaintiff then made written complaints invoking the grievance procedure and made further written complaints at various meetings as described above.
6.37 As previously stated, the court is not of the view that any of the actions by the defendants in dealing with the plaintiff’s various complaints amounted to a breach of duty by the defendants to the plaintiff. It is, of course, possible that the defendants could have come to an operational conclusion that protection ought to have been given to Ms. Saulite. Even if there may have been a lack of coordination in the defendants dealing with the matter, this Court is not of the view that any of this represented a breach of duty to the plaintiff or that it amounted to bullying and harassment of the plaintiff or that the manner by which the defendants dealt with the plaintiffs complaints was not adequate in the circumstances.
6.38 In the view of the court, the defendants dealt with the plaintiff’s complaints by attempting again and again to reassure him that there were no threats against him and that there was no prior knowledge among the gardai of direct threats to Ms. Saulite.
6.39 Again, as previously stated, to come to this conclusion, is not to end the matter as the plaintiff also has specific concerns and objections to the manner in which the plaintiffs medical situation was dealt with and in particular alleges that the defendants acted in breach of their own medical advice in the way that they dealt with the plaintiff and also failed to apply proper procedures when they judged that the plaintiff was not entitled to any further sick pay.
7 The issue of the plaintiff’s illnesses
7.1 As has already been stated, the plaintiff sustained significant post-traumatic stress injury after a upsetting potentially life-threatening event in July 1999. In that instance, the plaintiff was treated by Dr. David Shanley, psychiatrist; his GP, Dr. Bent, who continued to treat him as a result of the accident the matter of these proceedings, and Mr. Michael Dempsey, senior clinical psychologist. It is clear that the plaintiff suffered a significant post-traumatic stress disorder, anxiety and depression with some views of resentment against his superiors in relation to the manner that they handled his injury. The plaintiff reported to Mr. Dempsey that he consumed up to four bottles of wine a night and Mr. Dempsey was of the view that his alcohol consumption could account for the symptoms of anxiety and depression. He reduced his alcohol consumption and was encouraged back to work. In March 2003, his GP described him as fully recovered. There is no basis to suggest that as a result of the 1999 incident that the plaintiff ought not to have been given the duties that he was given after his return to work. The plaintiff was, on all the evidence, fully fit. It is indeed possible that as a result of the 1999 incident he became and remained more vulnerable to stress however, he reported fully fit for work and it is on that basis that he must be assessed.
7.2 The best evidence from the medical experts in relation to the incidents that form the subject matter of these proceedings is that the plaintiff suffered panic attacks, depression, what was described by Dr. McCormack “over valued ideas” which are not uncommon in severe depression, and/or possibly, as suggested by Professor Casey, paranoia and maybe a full-blown psychotic disorder known as ‘Persistent Delusional Disorder’. The plaintiff was referred by Dr. Bent initially to Dr. Ian Daly, psychiatrist, but because of some delay in Dr. Daly being able to see the plaintiff, the plaintiff, was referred through the offices of his solicitor, to Dr. Michael Corry, psychiatrist, immediately after Ms. Saulite’s death.
7.3 Dr. Corry has since died, his reports have been agreed. Dr. Daly has not been called to give evidence. However, his reports have been put into evidence.
7.4 The plaintiff was also initially examined on behalf of the Chief Medical Officer (CMO) of the An Garda Síochána by Professor Anthony Clare and after the death of Professor Clare, by Dr. Cian Denihan. The court has had the benefit of the reports from these individuals. The plaintiff was also examined on behalf of the defendant for these proceedings by Professor Patricia Casey. Professor Clare and Dr. Denihan were reporting to the CMO from the point of view of the plaintiff’s ability to work. Professor Casey was the expert retained by the defendants for the purpose of defending the case.
7.5 Dr. Daly stated that the plaintiff had had a previous post-traumatic stress disorder in July 1999, and that it was difficult to state to what degree he suffered a recurrence of this following the incident in November 2006, or “alternatively, to what degree his concerns for his safety and those of his family were more reality based”. Dr. Daly went on to say that based on the plaintiffs account, his concerns did not seem to have been clearly or properly responded to by his employers, and that if they believe his fears to have been exaggerated, it would have been “appropriate to inform him and to ensure that he received some form of care or counselling for a subjectively experienced fear state which extended to fears for his life, for the wellbeing of his family”. Dr. Denihan, when he examined the plaintiff on behalf of the CMO in April 2008, stated that the plaintiff was at that stage at a major risk of full-blown relapse of his PTSD and that while he initially received antidepressants and tranquilisers from his GP, this had been discontinued. Dr. Denihan also noted that the plaintiff was prone to self-medicating with alcohol at night, particularly when under stress, but that this was not a serious problem.
7.6 In August 2008, Dr. Daly indicated that the plaintiff’s perception of his employer’s indifference to him was relevant. The fact that he felt abandoned by his employers and that it was important that his concerns be properly addressed. He went on to say that it was important that the plaintiff be provided with “sufficient opportunity to describe his experiences and seek appropriate understanding and reassurances. The issue is not about whether his response is disproportionate or not. The fact is that he has so reacted and he will benefit clinically if his superiors can accept this as a matter of fact and express due concern for any stress suffered. All of this can be done without judging the substantive issues in the case …”
7.7 It should be pointed out that by this stage, the plaintiff had already been advised by Inspector Hanrahan that there was no threat to him, but that this advice was not accepted. In July 2008, the plaintiff had been further advised that the disciplinary investigation had exonerated him. Dr. Denihan and Dr. Daly were reporting to the CMO and subsequent to these reports in September 2008, the plaintiff together with a representative from the GRA met with Superintendent Curran with a view to easing the plaintiffs concerns. The first such meeting with Superintendent Curran was somewhat fractious, but as previously described, there were many meetings in which the defendants attempted to reassure the plaintiff that there were no threats to him and wanted to accommodate him by getting back to work.
7.8 It is submitted on behalf of the plaintiff that these meetings were too focused upon getting the plaintiff back to work and not focused enough upon the plaintiffs past concerns. The court does not accept that point of view. The court has already concluded that the plaintiff at this stage had a fixed view that the defendants were scapegoating him. Furthermore, after this series of meetings, as previously stated, Inspector Hanrahan took in charge the issue of the worrying telephone call to the plaintiffs mother and this was dealt with in February 2009.
7.9 In his report dated 8th March, 2009, which was, in all probability actually written on 8th April, 2009, Dr. Daly stated that the plaintiff was at that stage “clinically well with few symptoms of anxiety”.
7.10 Dr. Daly went on to state:
“Mr. Nyhan is currently fairly well and in normal circumstances, fit enough for work. Return to this job, in this context, however, is a different matter. Whether he would compensate clinically is another matter and one about which I would not feel able to confidently predict – so much would depend on how events unfolded and how relationships and supports were established and maintained. It seems clear to me, however, that Mr. Nyhan does not wish to attempt to return to his former employment, whatever the consequences this decision might entail for him. His wife broadly concurs and it is my opinion that these decisions are being taken reasonably and not in response to any psychiatric disorders or clinical anxiety. While this attitude may seem entrenched, especially to his management, this derives mainly from his perception of their handling of the situation rather than from his own anxieties.
There may be an element of fear on his part that his mental state will deteriorate and that his anxiety may reassert itself upon a return to work, but, if so, this is only one element of a larger complex and, in the ultimate analysis, not the deciding one since he has also refused to consider a return to work and transfer elsewhere.”
7.10 Garda Management, on the advice of the CMO and with the support of Dr. Denihan following this opinion from Dr. Daly concluded that the plaintiff was fit to return to work.
7.11 The plaintiff himself was interviewed by the CMO, and was informed by the CMO that he was medically fit for work. He was not happy with this and disputed the CMO’s belief that garda management were treating him fairly and could be trusted by him and that he was at no greater risk than other member of the force from any serious injury from a criminal.
7.12 At this stage, the CMO was also furnished with a report from Dr. Michael Corry, the plaintiffs other treating psychiatrist, which indicated in July 2009 that the plaintiff had developed a serious ‘Post Traumatic Disorder’. It seems that the CMO was dealing with Dr. Daly and proceeded on the basis that what Dr. Daly was reporting was correct as Dr. Daly was the plaintiff’s main treating psychiatrist.
7.13 In any event, the plaintiff did return to work on 2″d November, 2009. He reported on sick leave on 6th November, 2009, and has remained off work since then has been certified as unfit by his doctors.
7.14 After the plaintiff reported sick on 6th November, the CMO requested the plaintiffs GP to give details of any further illness the plaintiff has suffered since he had previously had been found fit for work by his doctors, but Dr. Bent does not seem to have responded to the CMO’s request in this regard.
7.15 As a result of receiving the opinion of Dr. Daly and as a result of the endorsement of this opinion by their own psychiatrist, Dr. Denihan, the defendants have persisted in the view that the plaintiff was and is fit for work.
7.16 Analysing the various medical reports, the court has come to the view that the plaintiff did indeed suffer from a depression and a probable reactivation of his previous PTSD symptoms and either the paranoia as posited by Professor Casey or the “suspicious thoughts and over valued ideas” as posited by Dr. McCormack.
7.17 The court is of the view that these symptoms eased so the plaintiff was as stated by Dr. Daly in April, 2009 fit for work. After his return to work, for whatever reason the plaintiff has suffered a relapse of those injuries. It is unfortunate that Dr. Bent did not respond to the query from the CMO as to whether the plaintiff was suffering from any new injury. It is noted that the plaintiff has in recent days been reassured, not just by some of the evidence given in the court proceedings, but also by a helpful meeting with his present superior. The plaintiff has expressed a desire to get back into the force. It is outside the scope of this case to comment upon whether this is possible or not, but certainly the court hopes that this can be achieved.
7.18 I accept that the plaintiff has suffered a reactive depressive-type injury from the various factors involved in the death of Ms. Saulite. After the misunderstanding of what Detective Superintendent O’Sullivan had said to Sergeant Hughes, the plaintiff’s initial, perhaps, understandable belief, was that he may have been scapegoated. This belief was part of his depression and has persisted.
7.19 I note the views of Professor Casey who states that in her first examination of the plaintiff in December 2010, he presented in a dishevelled manner, with noticeable beard growth. Professor Casey stated that the plaintiff admitted to drinking up to four bottles of wine per day or ten to twelve cans of beer. The plaintiff described his daily routine and that he spends most of the time at home, he takes the child to school, does not go out, goes to bed for a few hours mid-morning and collects his daughter in the afternoon.
7.20 This account of the plaintiff’s alcohol intake was essentially corroborated by an interview Professor Casey had with the plaintiff’s wife, though she stated the quantity at two bottles of wine per night plus vodka.
7.21 It is not unimportant that the quantity of four bottles of wine a night was the same quantity as mentioned by Mr. Dempsey, the psychologist, after the 1999 incident.
7.22 Professor Casey was of the view that the plaintiff did suffer an adverse result to the events following death of Ms. Saulite, as a result of this, he drank in excess and has developed “a mental health condition of such severity that it borders on the psychotic, and indeed may be a full-blow psychotic disorder known as Persistent Delusional Disorder. It resembles his response to a traumatic incident a number of years earlier which was diagnosed as Post Traumatic Stress Disorder. That condition resolved when he stopped drinking. In my opinion, Mr. Nyhan should cease drinking, and if necessary, receive professional help with this. In that way it will be possible to evaluate whether he suffered from underlying Post Traumatic Stress Disorder. In the presence of severe alcohol misuse and possibly a psychotic disorder, it is impossible to make a diagnosis of Post Traumatic Stress Disorder. Once he is alcohol- free, he should be re-evalued psychiatrically”.
7.23 The plaintiff and his wife both deny that the plaintiff drank up to four bottles of wine a night. The plaintiff did say and his wife confirmed that he did drink to excess before important meetings of which indeed there were many. The plaintiff denied drinking beer from cans but agreed that he drank wine but not to the extent as stated by Professor Casey.
7.24 The plaintiff’s GP, Dr. Bent, stated, and I accept that the plaintiff is not suffering from an alcoholic dependency problem. The plaintiff did not present to me in such a condition and I observed him carefully throughout the proceedings, including the significant number of days that he spent in the witness box. I accept that the plaintiff and his wife did confirm consumption of up to four bottles of wine on some days, but I do not believe that they meant that this excessive consumption was every day or anything like it. I accept the plaintiffs own doctor’s evidence that he did not and does not display the traits of someone who is dependent upon alcohol.
7.25 I accept that if someone suffers depression or symptoms of PTSD he may increase his alcohol consumption to an excessive quantity. I do not believe that it is the core of the plaintiff’s problem.
7.26 The plaintiff complains that the defendants, as part of their bullying or neglect or breach of duty towards him, failed to properly address his medical concerns. It is clear that the CMO advised the senior management of An Garda Síochána that the plaintiff should be interviewed and his fears allayed by senior garda management, this advice was not followed. However, the defendants did provide significantly senior members up to the rank of Chief Superintendent to meet and speak with the plaintiff and attempted to persuade him that his fears were groundless. I am not convinced that a meeting or meetings with anybody of the rank of Assistant Commissioner or Commissioner would have achieved any better results.
7.27 I am particularly of this view in that the plaintiff’s core belief is that the Commissioner, and indeed, his immediate agents, were those responsible for the bullying and harassment that are the subject of these proceedings. I believe that the defendants were reasonable in the circumstances in their dealings with the plaintiff.
7.28 The court also heard evidence from Professor Mona O’Moore of the Anti Bullying and Research Centre from TCD.
7.29 Professor O’Moore listed the plaintiff’s complaints including the plaintiffs analysis of the “negative behaviours towards him”. Having listed the plaintiffs concerns, she concluded, “The above behaviours which extended over a [considerable] period of time can be defined as bullying”.
7.30 Professor O’Moore then utilised a number of psychological tests “to confirm the behaviours reported by Mr. Nyhan”. It is the view of the court that these tests and Professor O’Moore’s conclusions merely establish that the plaintiff believed that he was being bullied and that he was experiencing intense levels of anxiety, etc. Professor O’Moore concluded that the psychological behavioural problems that he suffers from are “consistent with those well-documented in the literature on bullying and harassment at work … as resulting from workplace bullying”. In her evidence to the court, it transpired that Professor O’Moore’s view was, in effect, that if an employee had any concerns about his or her workplace, and if those concerns were not addressed by the management to the satisfaction of the worker, that that, in itself, would amount to bullying.
7.31 That is a conclusion that the court cannot accept. The fact of bullying is an objective one. Clearly, what may not be bullying to a robust employee may be bullying to somebody who is vulnerable. The failure of the defendants to give the plaintiff what he concluded to be a satisfactory resolution of his complaints is not and cannot of itself always amount to bullying. The test is as stated by the Supreme Court in B.R. v. Dunnes Stores Ltd. [2009] 20 ELR at pp. 75 to 76:
“(i) The test is objective;
(ii) The test requires that the conduct of both employer and employee be considered:
(iii) the conduct of the parties as a whole and the cumulative effect must be looked at;
(iv) the conduct of the employer complained of must be unreasonable and without proper cause and its effects on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
7.32 The other issue in this case is the fact that the plaintiff has not been paid any salary for a considerable period of time. The defendants indicate that this is because the plaintiff has been judged as fit for work by his doctor, Dr. Daly, and that this opinion has been accepted by Dr. Denihan and, accordingly, the plaintiff is not absent as a result of any unfitness for work. Further, when the CMO asked Dr. Bent whether the plaintiff was suffering from any new illness after he was certified sick in November 2009, Dr. Bent did not reply to the CMO.
7.33 The plaintiff objects that the defendants have failed to comply with their own obligations under Chapter 11 of the Garda Code dealing with sick leave and under the defendants’ Management of Sickness Absence Directive (1st December, 2010). The latter relates to whether an injury is to be considered injury on duty.
7.34 It is agreed by the parties that it is not within the scope of this case to analyse whether or not the defendants owe the plaintiff his wages since the time that they were stopped. Were the court to so decide, on the evidence before me, I would be likely to hold that as the plaintiff went off sick in November 2009 after his return to work for a few days, that he has suffered a relapse and that his absence from work results from an injury or disability relating to his work.
7.35 It may be that in the threatened action in relation to his loss of earnings that different evidence will be available and that court would decide the issue differently. It is to be hoped that no such action is necessary and that the matter can be satisfactorily resolved between the parties.
7.36 For the purposes of this action, however, the court is not of the view that a failure to make assessments required under the defendants’ own procedures represented an actionable breach of duty or an example of bullying of the plaintiff.
7.37 The defendants, not unreasonably, and on the evidence open to them at the time concluded that the plaintiff was, in fact, fit for work and had chosen not to return to work because of his disagreements with the Defendants. Accordingly, the defendants concluded, again not unreasonably, that the plaintiff was not entitled to his earnings as a guard having been given the appropriate warning.
8. Conclusion
8.1 The plaintiff is a vulnerable individual who suffered great stress in an incident in 1999. In 2006, having carried out excellent police work on behalf of Ms. Saulite, he was then understandably shocked and indeed horrified by her murder. When the plaintiff discovered that he, together with Sergeant Hughes, had been given a draft victim impact statement in which Ms. Saulite had expressed fears in relation to H.H., the plaintiff was again naturally shocked. When the plaintiff believed, through a misunderstanding from Superintendent O’Sullivan, that the gardai were in possession of direct threats against Ms. Saulite’s life from H.H., which they chose to ignore, and that he and Sergeant Hughes were apparently the only focus of disciplinary investigation, the plaintiff feared being scapegoated.
8.2 The plaintiff then also feared for his life and the life of his family from H.H. He was given garda protection and then this was withdrawn. He sought reassurances from the Commissioner initially as to the level of threat against him. Reassurances were given time and time again. The plaintiff did not accept these reassurances. The plaintiff went on to fear persecution from the first defendant as much, if not more so, than any physical threats from H.H.
8.3 This idea of persecution became fixed in his mind and nothing that was said could shake him from this conviction.
8.4 I believe at some stage the plaintiff’s depression and anxiety and panic symptom eased but unfortunately they have returned.
8.5 As stated previously, I do not believe that the complaints the plaintiff makes amount to bullying or harassment or breach of duty or negligence by the defendants. I believe that it is clear that there was no scapegoating of the plaintiff or Sergeant Hughes because the garda authorities were never attempting to cover up senior management as there was nothing to cover up.
8.6 While some of the plaintiff’s grievances might have been dealt with differently, and while the initial investigation into Ms. Saulite’s death might with hindsight have been better co-ordinated, none of these factors give the plaintiff an actionable case against the defendants.
8.7 The issue of contributory negligence does not arise as I do not believe that there is any liability of the defendants to the plaintiff, but were I to decide that issue, I do not believe that it any way the plaintiff should be faulted due to the level of his engagement with the defendants. The plaintiff was I believe at all times and still is sincere in his convictions, misplaced though they may be. He fully engaged with the defendants as much as the defendants fully engaged with the plaintiff.
8.8 It is not the function of this Court to decide the issue of the plaintiffs stopped pay and the court has already made comments in this regard.
8.9 My judgment in this case is influenced by the stated ongoing goodwill to the plaintiff from the defendant.
8.10 It is not within the function of this judgment to decide on the future of the plaintiff in An Garda Síochána. It is to be hoped that the plaintiff does have such a future as he now himself also hopes and has been stated to him by his new superior officer.
8.11 For the reasons outlined above, the plaintiff must fail in this case and I dismiss same.
Fagan v Garda Commissioner [2014] IEHC 128, Irvine J.
Judgment of Ms. Justice Irvine delivered on the 28th day of February 2014
1. The plaintiff in these proceedings is a married man of 60 years of age who resides with his wife and family at Lower Gardiner Street, Dublin.
2. This claim relates to an incident which occurred on the footpath at Dorset Street, Dublin on 17th May, 2011. The plaintiff maintains that he was negligently injured by a member of An Garda Síochána Public Order Unit which had been deployed to deal with a protest concerning the visit of Queen Elizabeth II to Dublin.
3. The parties are agreed as to the extent of the injuries sustained by the plaintiff should I conclude that they were negligently inflicted. Accordingly I have been asked solely to determine the liability issues between the parties.
The Claim
4. In simple terms, the plaintiff maintains that the gardaí failed to take reasonable care for his safety when exercising policing manoeuvres in response to a riot situation which had developed at Dorset Street, Dublin on the afternoon of 17th May, 2011. He contends that if members of what I will refer to as the riot squad, who were moving forward along the footpath where he was standing, had been using reasonable care that they should have been able to circumvent him rather than knock him to the ground, as he alleges they did. In response to the defendants’ plea of contributory negligence to the effect that he failed to take care for his own safety, the plaintiff maintains that he was given no warning that the line of riot police, which had been in a stationary position for some considerable period of time, was about to move forward thus placing him at a risk of being knocked down. He had heard no announcement over any PA system advising him to leave the area. Further, he had not been advised by Gardaí present on the street not to enter Dorset Street which had not been closed off from Gardiner Street.
The Defence
5. The defendants deny that the plaintiff was knocked to the ground by any member of its riot squad. They maintain that if a member of the riot squad did knock the plaintiff over that this did not amount to actionable negligence in circumstances where they were seeking to maintain public order in a riot type situation. In the further alternative the defendants maintained that if they were negligent the plaintiff was guilty of a high degree of contributory negligence for failing to take care for his own safety in the moments prior to his injury and in particular in his failure to move away from the scene of the disturbance at a time when he knew or ought to have known he was at risk of injury.
The Plaintiff’s Account of Events
6. On 17th May, 2011, the plaintiff decided that he would collect his 14 year old daughter from St. Vincent’s School which is located at the junction of King Street North and Bolton Street, Dublin. He decided to do this because he was aware that there were demonstrations and riots taking place in and around Parnell Square and his daughter normally walked down Parnell Street when making her way home to Gardiner Street.
7. Because of the number of roads that were blocked off, in order to get to his daughter’s school the plaintiff had to walk up the entire length of Gardiner Street to the point where it meets Dorset Street. He then turned left and walked along the footpath of Dorset Street in the direction of Bolton Street. There was a significant police presence on Dorset Street and as he walked along he could see a large crowd of protestors to his right at the Eccles Street junction. Bottles were being thrown and missiles and fireworks showered in all directions. He told the court that when he got past this area of particular trouble he walked on some distance before he became aware of the presence of a line of police officers in riot gear spread across the whole width of the street and its footpath. When he noticed the line it was stationary and he concluded that he would not be able to get by. Accordingly, he decided to telephone his daughter to inform her that he would be unable to meet her at the school, as had been agreed.
8. When the plaintiff started making his call he was facing the riot squad. He told the court that in the course of the call he became aware of a commotion behind him and he turned around to see a number of protestors throwing a security barrier into the mouth of Hardwicke Lane, which he had just passed. Within a couple of seconds he was on the ground with an excruciating pain in his knee.
9. In the aftermath of his fall, the plaintiff assumed that it was a member of the riot squad that had knocked him to the ground as when lying on the ground he could see that a number of them had run past him in the direction of Eccles Street. He did not see who knocked him to the ground and neither could he describe whether he was struck forcefully or otherwise. He had no sensation of falling. One minute he was upright, the next minute he was on the ground. His phone and glasses travelled some feet ahead of him as he fell. A young lady picked up his phone and kindly helped him back to his feet.
10. The plaintiff told the court that he had not expected the riot squad to move forward towards the protestors as it had been stationary at St. Joseph’s Place for all of the time he had been observing it. He did not feel that he was at any particular risk from the demonstration as there were plenty of other people going about their activities on the street and no one had stopped him or advised him not to walk down Dorset Street. Neither had he heard any announcement over a PA system advising people to leave the area.
11. Under cross examination the plaintiff agreed that there was an indication of trouble when he got to Dorset Street but he did not feel it necessary to turn back. He felt he was safe to proceed up Dorset Street towards Bolton Street once he had gone beyond the unruly protestors at the Eccles Street junction. He accepted that missiles and fireworks were being showered in all directions as he made his way along the street. As to the circumstances surrounding his fall, he denied that he could have fallen due to having become disorientated or that he could have lost his balance in the confusion of what was taking place. He felt that he had hit the ground with force.
12. Mr. Desmond Kirwan Browne, Consulting Engineer called on the plaintiffs behalf, told the court that the footpath where the plaintiff was standing at the time he was injured was 12 feet wide in total. The distance between the line of bollards on the edge of the footpath and the wall was approximately 9.6 feet. He advised that it could accommodate four or five people tightly across its with. He agreed with counsel for the plaintiff that from still image number 10 it did not appear that there was anybody either side of the plaintiff as he fell and that given those circumstances there was, in his opinion, no impediment to somebody getting around the plaintiff without striking him.
13. Mr. Seamus Gallagher, a security consultant, told the court that from his viewing of certain video material relevant to the claim it seemed to him that there was relatively free access to the location where the plaintiff was injured. People could be seen standing in doorways and walking up and down. He thought approximately 30- 40 people were involved actively in the violence on the street. He felt the riot squad had moved forward quickly in response to the throwing by one of the rioters of a metal security barrier. He told the court that the general guidance given to members of a riot squad when approaching a serious disturbance was to try to manage the situation while insuring that they did not injure anyone, although he accepted that this could happen at times.
14. Mr. Gallagher also produced to the court a series of black and white, what I will call “stills”, which he extracted from the videos and to which I will now refer.
Video Evidence
15. The parties agreed to admit into evidence two pieces of video footage relevant to this claim and these have been run together in a continuous sequence that lasts 2 minutes eleven seconds. The first runs for the period 00.00 until 01.20 and was taken by a member of the public using a hand held camera [RC1 Hand Held] from the roof or a second floor window close to Hardwicke Lane. The second section of Video runs from 01.20 until 02.11 and this was taken by a fixed on street camera [21cCP] which monitors activity at the junction between Dorset Street and Eccles Street. However, it is important to note that both sections of the video cover the period relevant to the plaintiffs fall. In this regard the most relevant pieces of the video are from 00.25-00.38 and 01.52-02.05. Both of these excerpts cover the period commencing with the throwing of the metal barrier just referred to and conclude a moment or two after the plaintiffs fall.
16. The aforementioned video evidence was shown in court and the parties agreed that I should be given copies of the videos which I have had the benefit of reviewing numerous times. From the timing bar on the video it is a straightforward task to determine the interval between a number of the important events that transpired around the time the plaintiff sustained his injuries. I have referred to some of these timings later in this judgment.
The Defendants’ Evidence
17. Detective Inspector Downey gave impressive evidence regarding the setting up of the Public Order Unit in Ireland in 2003 and as to his own involvement in the training and rolling out of this new specialist force. However, it is not necessary for me to go into the detail of matters such as the amount of training received by those selected to participate in this unit as it is not particularly relevant to the circumstances surrounding the present claim.
18. At some stage on the day of the Queen’s intended visit to the Garden of Remembrance, Detective Inspector Downey was informed by the Chief Superintendent that there were demonstrations taking place on Dorset Street and he was directed to provide assistance to the Public Order Unit at the junction of Dorset Street and North Frederick Street. A decision was later made to drive protestors away from town towards Drumcondra using a line of 18 gardaí from the Public Order Unit. These were dressed in riot gear and took up position across the full width of Dorset Street including its pavement. One sergeant was positioned behind each group of six riot police. Detective Inspector Downey travelled behind the line of officers and sergeants in a van driven by Garda Brian Daly and it was his duty to convey commands to the three sergeants who in turn were responsible for transmitting these to their six men. The intention was to move the entire unit forward in a line reclaiming short stretches of the street in the course of each advance.
19. Inspector Downey said it took well over an hour for the riot squad to travel the distance between North Frederick Street and Hardwicke Place. Each member was carrying a shield to their left side, normally supported by two hands. He told the court that the unit would jog forward for short distances in unison thus forcing protestors to retreat as it advanced. The unit stopped about five times over this distance and every time it stopped a standard warning was given by Garda Daly over the van’s PA advising people to leave the area. He said that the unit had remained under fairly constant attack from the rioters as it made its way slowly in the direction of the Eccles Street junction.
20. Having viewed the video footage relevant to the plaintiffs fall, Detective Inspector Downey was of the opinion that if Mr. Fagan had been knocked down by one of the riot squad, particularly the member second out from the wall, it was probable that he would have fallen towards his left rather than his right, as had occurred, due to the fact that the shields are carried by officers on their left side. He said it was difficult to keep the line of a riot squad straight as it advanced. Officers get tired and become less attentive the longer the manoeuvre goes on. Some sergeants may take a little longer than others to pass on instructions to their six men and it happens all of the time that some members moving in formation may get ahead of others in the line. Missiles were not usually a problem for an advancing line but obstructions and people caused difficulty in this type of manoeuvre.
21. Under cross examination, Inspector Downey said that when the riot squad line was stationary before the plaintiff’s injury that it was about 20-30 meters back from the protesters who were concentrated at Hardwicke Lane. He agreed that the line had been stationary for at least 15 minutes before it moved off to secure the Eccles Street junction. He denied that it had been the throwing by protestors of the security barrier at the Gardaí stationed at the opening at Hardwicke Lane that had caused the squad to run forward. The squad only moved forward on his instructions and it just happened that the throwing of the barrier closely coincided with his command to the inspectors to move the unit forward.
22. Inspector Downey told the court that he expected the unit to move forward causing minimal harm. He said that a riot squad moving forward at running line speed would step around any obstacles in their way including poles, bollards or people. He agreed that the unit was carrying out a pre-rehearsed manoeuvre at the time the plaintiff was apparently knocked down and that it was not acting in what was described by counsel for the plaintiff as “an agony of the moment situation” or trying to sanction any of those involved. He said that having regard to the width of the pavement, he would have expected the riot police to be able to jog past the plaintiff without knocking him over. He agreed with counsel that from the video it looked as if there was sufficient room for the members of the riot squad to get safely past the plaintiff. Inspector Downey also accepted that a member of such a unit, although dressed in riot gear, ought nonetheless to feel the impact of colliding with someone. He stated that members of the squad would not mow people down nor decide to proceed forward pushing people out of their way. Their approach would be to step around an individual. If they knocked somebody down they would not be permitted to stop and the consequences would be left to be dealt with by one of the follow up gardaí. He said that there might not be a lot of room on the path if you were to look face-on at the three officers as they came toward you on the pavement, but he went on to agree that they should not have knocked the plaintiff over, if that is what happened.
23. Garda Daly, the driver of the garda van in which Inspector Downey was travelling, said that each time the riot squad came to a standstill he read out a standard warning directing people to leave the area and that he repeated this warning at approximately 10 – 15 minute intervals.
24. Sergeant Feehily who was the officer in charge of the three members of the riot squad travelling on the path of Dorset Street and who was following behind on the roadway said that he did not remember seeing the plaintiff on the ground in the course of the operation.
25. Garda Jim Carr, who was the riot squad member travelling closest to the wall as it made its way up towards Eccles Street said that before he had started that last manoeuvre, the squad had been stationary for about 15-20 minutes. Under cross examination he said he saw the barrier being thrown and that there was a lot of activity around the area, particularly from protesters and photographers. Garda Carr stated that he received an order to move forward to Eccles Street immediately after the barrier was thrown. He did not see anyone making a phone call standing on the footpath as he moved forward. When asked how a pedestrian like that could have been missed he stated that there was so much going on you could not recall every single person in front of you. He said it would be the objective of any riot squad member to move around any obstacles that were in their way while advancing towards their destination and they would not just bang into people in order to achieve that objective. He told the court that he felt he would have known about it if he had collided with the plaintiff during the advance.
26. Garda Mark Murphy, who was member of the riot squad positioned second out from the wall, said he did not remember knocking into anyone or seeing anyone fall. He agreed that as a member of the unit if you knocked somebody to the ground you would not stop and they would be dealt with by the line of ordinary members of An Garda Síochána who were travelling behind them. He said there were a small number of people on the footpath in his path and stated that he would have made it his objective to get to Eccles Street without interfering with them. He could not remember the plaintiff obstructing his path and he would have tried not to interfere with anyone as he moved forward. He said that if a pedestrian was knocked down from a standing position that this should not have happened.
27. Garda Michael Pilkington, who was the third member of the squad travelling along the pavement nearest the roadway, said that he did not knock the plaintiff down and that if a member had knocked him down that the person concerned ought to have been aware of that fact. He said that if a pedestrian is in your way in the course of such a manoeuvre, you would try to go around them and you do not just push them out of the way.
Findings of fact
28. Before moving on to consider the legal submissions made by the parties in this claim, I have decided to first of all deal with my findings of fact based on the evidence submitted by the parties.
29. I am satisfied that approximately two hours prior to the plaintiff’s injury there was a significant public order disturbance at the junction of North Frederick Street and Dorset Street. I am also satisfied that at the time the plaintiff entered Dorset Street from Gardiner Street, probably about 15 minutes before he sustained his injuries, that there were several hundred of what he described in his statement to the gardaí as “thugs” a significant number of whom were throwing missiles such as bottles, bricks and fireworks at uniformed police near the junction of Eccles Street and Dorset Street. While there was a high police presence evident on Dorset Street as the plaintiff arrived, I accept that nobody approached him to advise him not to enter the street.
30. I am satisfied that as the plaintiff passed the group of rioters at the junction of Dorset Street and Eccles Street there was a stationary line of police in riot gear spanning the width of the street relatively close to St. Joseph’s Place which is approximately halfway between Eccles Street and North Frederick Street. I accept Inspector Downey’s evidence that it had taken this unit well in excess of one hour to make its way to that location from North Frederick Street during which time it cleared and recovered possession of the street by forcing protestors and rioters to retreat in the direction of Drumcondra. I also accept his evidence that the unit had moved forward in a line on a stop-start basis and that it had stopped in formation as often as five times and for periods of at least 15 minutes before it reached St. Joseph’s Place.
31. Having regard to the fact that there was regularly a ten minute interval between warnings broadcast by Garda Daly over the PA system advising people to leave the area, I am prepared to accept the plaintiff’s evidence that he did not hear any such warning prior to his injury.
32. I am satisfied from the plaintiff’s oral evidence and from his subsequent written statement to the gardaí that he was standing on the footpath facing the line of riot police when he went to telephone his daughter to advise her that he would not be able to collect her. I am also satisfied that later in the course of that call he turned around in the other direction with the intention of walking back in the direction of Eccles Street as only seconds prior to his fall he is to be seen walking slowly, well out from the wall, in that direction while holding the telephone to his left ear as is clear from the section of video that runs from 01.56 to 02.02.
33. I am satisfied that the plaintiff was about 25 yards on the Drumcondra side of the entrance to Hardwicke Lane when he telephoned his daughter, as is evident from still number 8 in Mr. Gallagher’s report. In that image two gardaí wearing neon flak jackets are to be seen either side of a metal crash barrier at the mouth of the laneway.
34. I am satisfied as a matter of probability, and I believe this borne out by still no. 2 in Mr. Gallagher’s report, that immediately before the security barrier was thrown there were at least ten other people scattered across the pavement several yards ahead of the plaintiff, all of whom were facing the same direction as him. There was also another group of people further along the pavement in the Eccles Street direction who were looking back in the direction of the plaintiff.
35. From the video evidence, I am satisfied that during the time when the plaintiff was on the telephone to his daughter, two critical events occurred. The first of these was a very serious and dangerous public order incident which took place on the pavement directly in front of the plaintiff and the first group of people to whom I have just referred and concerned the throwing by a number of rioters of a metal barrier at three uniformed gardaí who were standing in the mouth of Hardwicke Lane. The barrier was in the air at 00.26 and crashed to the ground at 00.28 seconds, according to the video.
36. The second important event that occurred was that the line of members of the riot squad started to jog or run forward in the direction of Eccles Street on the instructions of their commanding officers. It is clear from the plaintiff’s evidence and from that captured on the later of the two sections of video that this manoeuvre commenced several seconds after the barrier hit the ground. The squad can be seen starting their advance in the second section of the video at 02.00. I am satisfied as a fact that the combination of these two events created a degree of concern and confusion for those on the footpath where the plaintiff was positioned who were taking note of proceedings. There was complete mayhem of the footpath in the eight seconds leading up to the plaintiffs injuries as can be seen by viewing the video over the period 01.50 to 02.04. Pedestrians, recognising the danger of the situation are seen scampering for cover. One particular woman in a blue top, on noticing the sudden advance of the riot squad is seen almost throwing herself to her right across the pavement to seek refuge at the wall.
37. I am satisfied from the video evidence that the plaintiff fell to the ground exactly eight seconds after the aforementioned barrier landed on the ground and the time at which he fell was 00.36 according to the first section of the video. He can be seen in the later section of the video [01.58 to 02.04] that he is on his telephone for all of the six seconds that he is captured on video immediately prior to his fall.
38. It is irrelevant, in my view, as to whether Inspector Downey instructed the riot squad to move forward in response to the throwing of the barrier or whether his instructions were coincidentally given immediately after the barrier was thrown. But, lest anything tum on it, I accept his testimony that he did not command the unit to move forward in response to the throwing of the barrier which I accept he could not have seen from his position in the Garda van.
39. The eight second interval between the landing of the crash barrier and the plaintiffs fall, is not captured by the camera which had been trained on the mouth of Hardwicke Lane as it cuts out to the street to follow the activities of the member of An Garda Síochána who ran out from the laneway at 00.32 with his baton raised to force the rioters who had thrown the barrier to retreat. However the movement of pedestrians on the footpath in the seconds leading up to the plaintiffs fall is captured in the second section of video particularly the section that starts at 01.55 when the barrier is thrown and shows the plaintiff on his telephone amidst the relative chaos on the footpath as the riot squad start to advance at about 02.00.
40. I am quite satisfied from the last mentioned section of video footage that during the eight second period prior to the plaintiffs fall the people who were seen in still no. 2 and who are seen standing or walking some feet ahead of the plaintiff scattered from their earlier positions. Even from the still images it is clear that at the moment the plaintiff falls a number of the people who had been ahead of him on the footpath are to be seen with their backs flat up against the wall. It is relatively easy by reference to still number 8 to identify people also seen earlier in still no. 2 such as the man with the white sports hat and the girl in the blue to whose movements I have earlier referred. Further, cameramen are to be seen running all over the place, clearly in the expectation of capturing on film events that might prove to be newsworthy.
41. I accept that at the time the plaintiff sustained his injuries the riot squad was carrying out a routine and well practiced drill. However, I am also satisfied that at the time they commenced their manoeuvre, which involved them running or jogging in a line to the Eccles Street junction, they were faced with something of an evolving obstacle course as people formerly on the footpath moved right or left or simply fled due to the combined risk of injury from further missiles such as the metal barrier, which had just been thrown, or from the advancing riot squad. My impression of the overall evidence leads me to conclude that the stills numbered 8 and 10, which capture the position of people at the moment of the plaintiffs fall, give a sterile and artificial impression of what faced the members of the riot squad as they set off up the pavements towards Eccles Street. From the second section of video evidence commencing at 01.52 and ending at 02.05 it is clear that the eight seconds between the landing of the metal barrier on the footpath and the plaintiffs fall were moments of high activity for those on the pavement recognising, as they must have done, the risk to their own safety caused by the escalation in the violence and the fact that they were positioned between the demonstrators and the swiftly advancing cordon of riot police.
42. Regardless of the silence of the three members of the riot squad on the issue, I am satisfied from the second section of video evidence that due to the throwing of the barrier onto the footpath and the consequential scattering of pedestrians, those officers had to carry out their manoeuvre along the footpath in conditions far more difficult and complicated than those faced by their colleagues on the roadway, particularly over the first couple of seconds of their advance as they made their way as far as where the plaintiff was positioned.
43. Even though it is possible that the plaintiff could have tripped or fallen while performing a manoeuvre such as that carried out by the woman in the blue top to whom I have already referred in an effort to get out of the way of the advancing gardaí, or that for some other reason he became destabilised and fell to the ground, I think it is more probable that one of the members of the Public Order Unit knocked into him as they moved swiftly along the footpath and that he fell as a result. In the second section of the video the plaintiff is to be seen on his telephone apparently oblivious to what was happening around him and I see no evidence of him taking any action in response to the unfolding events. Further, from the still numbered 16 and 18 and from my viewing of the video itself, there appear to be no other likely suspects. While there are several other people in the relevant clip of video, all of these have their backs up against the wall, probably as a result of their efforts to get out of the way of the advancing squad. The only other person is a cameraman who is seen passing the plaintiff subsequent to his fall and who for this reason must be excluded. On the balance of probabilities, I believe it was the second member of the unit who was travelling up the central portion of the footpath who made contact with the plaintiff. Having viewed the video evidence, I think it is probable, given his position on the ground after his fall, that the two members of the Public Order Unit who were closest to the wall were probably travelling either side of him and that one of them made contact with him as they went by.
44. The fact that all three officers said that they had no recollection of knocking the plaintiff down or of having noticed him on the ground does not mean that they did not or could not have collided or impacted with him in some way. Clearly, if they had knocked down an oncoming pedestrian I would have expected them to have been aware of that fact. However, in this case, just before the plaintiff fell he was actually moving in the same direction as the riot squad. In the light of the volatile situation on the street, I do not believe they would necessarily have been aware of making some relatively modest contact when moving past a pedestrian such as the plaintiff who may have been in or even stepped into their path of travel. It would have been very easy for one of the riot squad to accidentally bump into a pedestrian such as the plaintiff, as I believe occurred here, particularly where that pedestrian was engrossed in a telephone conversation to the extent that unlike every other pedestrian, he seemed unaware of the advance of the riot squad and was unable to take any evasive action.
45. The fact that the plaintiff fell to the ground injuring his knee and shoulder does not necessarily mean that he fell as a result of any particular force. The fact that his glasses, on his own evidence, went forward two feet to three feet in the fall and his phone perhaps four feet is of little evidential weight. Given that the plaintiff was moving in the same direction as the riot squad at the time he fell this was to be expected. Further, he had his back to the advancing unit and in these circumstances would have been providing no resistance to any potential contact, unlike the scenario that would pertain if the two parties to the impact had been moving in opposite directions. Likewise, the position of the plaintiff on the ground in the aftermath of the event proves nothing about the nature of the impact. From the plaintiffs evidence he suffered excruciating pain as his knee took the weight of his fall. In such circumstances, it is easy to see how he ended up lying on the pavement as depicted in still number 10.
46. I am also satisfied that whatever contact was made between the member of the riot squad and the plaintiff that this did not arise as a result of any deliberate force, or any dangerous, aggressive, reckless or ill-disciplined manoeuvre on the part of the member concerned. It was asserted that the three members on the footpath may have been moving dangerously quickly along the footpath in an effort to catch up with the rest of the unit, given that they had lost formation at the time of the plaintiffs fall and had fallen a little behind their colleagues on the roadway. I have to say I think that is an unlikely scenario and having carefully viewed the second section of the video several times I think it is much more probable that the loss of formation occurred because of the difficulty they had getting along the path immediately after the barrier was thrown, a time at which a significant number of pedestrians were clearly moving to the protection of the wall or running away. Further, if there had been any intentional force, ill-disciplined behaviour or recklessness on the part of the offending member as he moved to get past the plaintiff I believe any such action would have been noted by one of the many bystanders who would surely have made their identity known to the plaintiff. In this regard still no. 18 shows several members of the public standing up against the wall as the members of the riot squad made their way past him.
47. What I now must decide, having regard to the submissions of the parties, is whether or not the facts as found are sufficient to permit the plaintiff to succeed in his action for negligence against the defendants
The Submissions of the Parties
48. Mr. Callanan, S.C., on the defendants’ behalf, submitted:-
1. That the plaintiff had not discharged the burden of proof in establishing that he was knocked over by an agent of the defendants.
2. That the defendants did not owe a common law duty of care to the plaintiff as to the manner in which they exercised their public order function.
3. That if the defendants did owe a duty of care to the plaintiff when exercising their function to maintain public order, the standard of proof required by any plaintiff would have to be high in order to reflect their operational requirements. He submitted that only proof of something as serious as malice or gross recklessness would suffice.
4. Finally, if the court were to find the defendants to have been negligent then it should conclude that the plaintiff was guilty of a very high degree of contributory negligence.
49. In urging the court to conclude that gardaí should be afforded an immunity in respect of injuries which might otherwise be considered negligent were it not for the fact that they were exercising their function to maintain public order, Mr. Callanan relied, inter alia, upon the decision of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] 1 A.C. 53, the decision of Kearns P. in Lockwoodv. Ireland [2011] 1. I.R . 374 and that of Hedigan J. in L.M v Commissioner of An Garda Síochána & Ors [2012] I.L.R.M 132. These decisions are all authority for the proposition that members of a police force (in this case the gardaí) are immune from actions for negligence in respect of their activities concerning the investigation, prosecution and suppression of crime.
50. In further support of his argument for an immunity from suit in the law of negligence, or alternatively some abatement in any duty of care deemed to be owed by the gardaí to members of the public when exercising their public order functions, Mr. Callanan relied upon the decision in Glencar Explorations v. Mayo County Council (No.2) [2002] 1 IR 84, in which the court concluded that a public authority could not be sued in negligence in relation to any decision made by it when exercising its statutory duties, unless it could be established that any such decision had been made in the context of some wrong or improper motivation.
51. On the plaintiff’s behalf, Mr. Byrne, S.C. accepted that the gardaí are immune from suit for negligence in respect of their conduct when carrying out their prosecutorial or investigative functions in relation to the commission of a crime. However, that specific immunity could not, he maintained, by analogy be extended their other operational duties.
52. Mr. Byrne submitted that the ordinary principles of the law of tort ought to be applied by the court. He agreed with Mr. Callanan that there were circumstances in which the liability of the gardaí for injury might be abrogated, such as if they injured someone in the course of carrying out a life saving manoeuvre or, as he put it, in an “agony of the moment” situation.
53. However, on the facts of the present case, given that Inspector Downey had stated that the riot squad had not injured the plaintiff when responding to the escalation in violence generated by the throwing of the metal barrier or any desire to apprehend the culprit, Mr. Byrne submitted that no such latitude should be afforded to the defendants. The manoeuvre being carried out at the time the plaintiff was injured was a routine drill which did not fall into such a category.
Decision
54. All of the arguments raised by the parties can, I believe, be disposed of by answering the following questions:
(i) Do members of An Garda Síochána owe a duty of care to members of the public when carrying out their public order functions?
(ii) If such a duty exists, what is the test to be applied? Is it the standard test or is some higher threshold required to establish liability?
(iii) Was there a breach of any such duty?
55. As to the alleged immunity from suit of gardaí when involved in public order duties, the court was not furnished with any case law to support that proposition. Neither did the defendants produce any written authority to this effect from any of the authors of the very many formidable texts on the law of torts. And, of course, there is no statutory provision which confers any special protections on the gardaí when exercising such functions.
56. In supporting the claimed exemption the best Mr. Callanan was able to do was to seek to benefit, by way of analogy, from a range of decisions which apply only in very specific circumstances and for very clear reasons.
57. I reject the defendants’ submission that by analogy I can apply the reasoning of the court in Glencar to the facts of this case. In Glencar Explorations .v. Mayo County Council (No.2), the plaintiff, a mining company, brought a claim for damages for negligence against the local authority in respect financial losses which it sustained as a result of a decision made by the Council to adopt a new development plan. That decision had previously been held to be ultra vires the powers of the local authority by the High Court (Blayney J.) and the section of the development plan that contained the mining ban was therefore null and void: Glencar Explorations .v. Mayo County Council (No.1) [1993] 2 I.R. 237. In Glencar Explorations .v. Mayo County Council (No.2), in deciding whether a claim for damages could be maintained in such circumstances, the High Court (Kelly J.) concluded that public authorities would be brought to an inevitable paralysis in their ability to take decisive action in the administration of public affairs if they were to be liable for damages in respect of any error made in the exercise by them of their statutory functions. It was held that in order for a plaintiff to succeed in such circumstances, they would have to prove some type of misfeasance on the part of the decision maker such as malice and that the public interest would not be served unless decisions made in good faith were afforded protection. The decision of Kelly J. was subsequently affirmed by the Supreme Court.
58. In comparing the facts of the present case with those of Glencar, the first thing to note is that gardaí when carrying out public order functions, unlike the County Council in Glencar, are not acting in pursuance of any statutory obligation. Further, in my view, it cannot be argued that to impose a duty of reasonable care on gardaí when exercising their public order functions would paralyse them in their capacity to achieve public order or would otherwise render them ineffective in carrying out those functions. The public order functions of the gardaí are very wide ranging. In many instances they are carried out in circumstances where there is no significant risk to innocent members of the public or indeed to themselves. If a blanket immunity were to be afforded in respect of the actions of all gardaí when exercising any public order function that would be to give them a latitude extremely disproportionate to their needs. Indeed such immunity could readily be abused by the use of excessive or unnecessary force, something that would not be in the public interest.
59. I also reject Mr. Callanan’s submission that because gardaí are immune from actions for negligence in respect of their activities when engaged in the investigation or prosecution of crime they should enjoy a similar immunity from suit in respect of injuries caused by them in the performance of their public order functions. There is nothing in the authorities which he relied on which would encourage me to that view. Given that the courts have consistently been asked to consider the circumstances in which gardaí may enjoy an immunity from suit in the law of negligence, such as when they are carrying their prosecutorial role, surely it must follow that in all other circumstances they are liable for acts of negligence.
60. The first authority relied upon in this regard was the decision of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] AC 53. That case concerned an alleged culpable delay on the part of the West Yorkshire Police in the prosecution of Peter Sutcliffe, the Yorkshire Ripper, by the mother of a young woman who was killed by him. She lost her claim in negligence on a number of grounds which, apart from the public interest point, included the insuperable difficulties that would be faced by a court if forced to try a case of negligence relating to the investigation of a crime. At page 64 of his judgment, Templeman L.J. gives a good insight into such potential difficulties:-
“The question for determination in this appeal is whether an action for damages is an appropriate vehicle for investigating the efficiency of a police force. The present action will be confined to narrow albeit perplexing questions, for example, whether, discounting hindsight, it should have been obvious to a senior police officer that Sutcliffe was a prime suspect, whether a senior police officer should not have been deceived by an evil hoaxer, whether an officer interviewing Sutcliffe should have been better briefed, and whether a report on Sutcliffe should have been given greater attention. The court would have to consider the conduct of each police officer, to decide whether the policeman failed to attain the standard of care of a hypothetical average policeman. The court would have to decide whether an inspector is to be condemned for failing to display the acumen of Sherlock Holmes and whether a constable is to be condemned for being as obtuse as Dr. Watson. The plaintiff will presumably seek evidence, for what it is worth, from retired police inspectors, who would be asked whether they would have been misled by the hoaxer, and whether they would have identified Sutcliffe at an earlier stage. At the end of the day the court might or might not find that there had been negligence by one or more members of the police force. But that finding would not help anybody or punish anybody.”
61. At p. 65 of his judgment he referred to further consequences of permitting a claim for damages in such circumstances:-
“Moreover, if this action lies, every citizen will be able to require the court to investigate the performance of every policeman. If the policeman concentrates on one crime, he may be accused of neglecting others. If the policeman does not arrest on suspicion a suspect with previous convictions, the police force may be held liable for subsequent crimes. The threat of litigation against a police force would not make a policeman more efficient. The necessity for defending proceedings, successfully or unsuccessfully, would distract the policeman from his duties.
This action is in my opinion misconceived and will do more harm than good.”
62. The aforementioned decision was followed by Keams P. in Lockwood v. Ireland, where the plaintiff, who was the complainant in a prosecution for rape which floundered as a result of the unlawful arrest of the accused, claimed damages for negligence. In dismissing her claim, Kearns P. stated (at para. 24) that a claimant must establish mala fides to bring her claim within the law of tort in this jurisdiction, and concluded “that no duty of care arises in respect of bona fide actions and decisions carried out by An Garda Síochána in the course of a criminal investigation and/or prosecution”. A similar conclusion was reached by Costello P. in W v. Ireland & Ors (No. 2) [1997] 2 IR 141, a case in which the plaintiff claimed that the Attorney General wrongfully neglected to endorse the extradition warrants for Fr. Brendan Smyth and that as a result of his neglect, the plaintiff had suffered shock, distress, loss and damage.
63. Regardless of the aforementioned body of case law, it cannot, in my view, be argued that without affording gardaí a similar type of immunity when performing their public order functions that the court would find itself in the same difficulties as were described by Templeman L.J. in Hill. Each case would turn on its own merits and ought to be capable of being dealt with in a relatively straightforward manner such as occurred in the present case. No particular evidential difficulties should arise. Neither can it be stated that the ability of the gardaí to perform their public order duties would be brought to an effective standstill or that their time available to deal other duties would be significantly adversely affected if members of the public had the right to maintain claims for damages for negligence in such circumstances. Further, the threat of such litigation should not, I believe, interfere with their likely efficiency in the conduct of their overall garda duties. Indeed the fact that there is no case law to be found in this jurisdiction dealing with the duty of care owed by gardaí to the public when carrying out even their regular duties would tend to support these conclusions.
64. Notwithstanding the fact that the decision in Hill was relied upon by the defendants to contend for an immunity from suit for police officers performing public order functions, that decision is far from a supporting authority. In fact, Keith L.J. at para. 59 states precisely the opposite:-
“There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his acts or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.”
65. Even drivers of emergency vehicles, who may be exempted from ordinary speed limits, are not exempted in terms of liability for negligence. They are not given carte blanche to drive without due care. However, in determining whether due care was taken, the court is entitled to give the object of the journey due weight. If this category of defendant is to be held potentially accountable in the law of tort, it would make no sense to conclude that gardaí when performing public order duties could be deemed to be under any less of an obligation in terms of the duty of care which they owe to members of the public.
66. Neither do I accept that, having found that no such immunity from suit in negligence as claimed exists, I should conclude that that there is some higher threshold which the plaintiff must establish, such as malice or recklessness, so as to succeed in liability. That again would involve me affording a different albeit lesser type of immunity than that already discussed which is not provided for by statute and in respect of which no legal authority has been produced.
67. Simplistic as it may appear, I believe that all of the defendants’ concerns as to the ability of gardaí to carry out their public order functions without the fear of unreasonable claims for damages being brought against them are more than adequately catered for by the application of the standard principles of the law of tort. Those principles which have at their core the concept of reasonableness are sufficiently flexible to take into account the interests of the gardaí and the public alike.
68. It is clear that in assessing whether conduct complained of amounts to negligence the court is entitled to look at a range of factors. It must look at the overall facts of the case when considering what is reasonable and in this regard I have already set out in my findings of fact the circumstances which I believe to be relevant. The court is also entitled to include in its considerations the probability of an accident if reasonable care is not used, the gravity of the threatened injury and the social utility of the defendants’ conduct at the relevant time.
69. While it was agreed by a number of the witnesses for the defendants that the plaintiff was struck during what was described by them as a routine and well rehearsed manoeuvre rather than, for example, in the course of an emergency to avert a risk of a fatality or to apprehend a dangerous criminal, that is only one of the many relevant considerations. Of much greater importance was the extent of the difficulties faced by the defendants when performing that operation.
70. The macro backdrop to this so-called routine manoeuvre was a fierce and continuous violent disturbance involving hundreds of protestors in the course of which the riot squad remained under constant attack from missiles of all sorts on a continuous basis and at a time when it was trying to push the protestors, little by little, back towards the junction of Eccles Street and further out of the city centre.
71. The micro backdrop to the manoeuvre was that in the eight to ten seconds before the plaintiff was struck, a sudden and extremely dangerous escalation of events took place only perhaps 20- 30 yards in front of where he was standing on the footpath. Shortly thereafter, the riot squad started moving swiftly forward trying to hold formation along that pathway. It is irrelevant that the riot squad did not, according to Inspector Downey, move forward in response to this escalation of violence generated by the throwing of the barrier. The fact of the matter is that there was an escalation of violence and the consequence of the two aforementioned events was that everyone on the footpath who had been ahead of the riot squad, with the exception of the plaintiff, scattered to positions of greater safety. Some pushed themselves up against the wall or into doorways to avoid injury and to avoid the squad which was then on the move. The video evidence available covering the period 01.50-02.05 makes this very clear.
72. Of some further albeit marginal relevance in this case is that the probability of an accident occurring in the event of a member of the Public Order Unit failing to proceed with due care in the circumstances that pertained was, I believe, quite small. In trying to predict the likelihood of injury I feel any member of the riot squad moving along the pavement just after the barrier was thrown should have been entitled to assume that anyone on the footpath would notice their advance and would be able, with several seconds’ notice, to get out of their way. I am also satisfied that the gravity of any threatened injury to a pedestrian from a member of the Public Order Unit who did not notice them when moving forward at jogging pace was likely to be very low.
73. As to the court’s entitlement to give more indulgence to a defendant when its activities can be stated to have a high social utility, the fact that the defendants in this case were carrying out a very significant public order function at the time of the plaintiffs injuries, regardless of whether the drill in progress, was one which was routine for riot situations or not, must, in my view, weigh heavily when considering whether the defendants acted with reasonable care. At the time of the accident, the riot squad was attempting to maintain public order by reclaiming the streets from certain protestors whose unlawful violent actions may have potentially caused grave injuries to members of the public, including the plaintiff, or to visiting dignitaries who were conducting an official state visit to this jurisdiction.
74. I am satisfied that it would be a wholly artificial exercise to decide what amounted to reasonableness in terms of the defendants’ conduct by freezing events at the instant the plaintiff was struck and to say that because at that precise moment the footpath beside and immediately beyond him appears to be unobstructed that the offending officer was necessarily negligent in failing to avoid making contact with him. Further, while Inspector Downey, Mr Kirwan Browne and several members of the public order unit accepted from the measurement of the footpath and the images presented to them in court that it should have been possible for the officer concerned to have circumvented the plaintiff without knocking into him, it does not necessarily follow that having collided with the plaintiff the officer concerned was guilty of negligence.
75. To conclude that members of a riot squad, whose objectives included the clearance of rioters from a street, something which is achieved by advancing at jogging speed in a closely knit line formation, while under attack from missiles are culpable if they fail to carry out such a manoeuvre without accidentally knocking into somebody would be to set the standard of care required of them unreasonably high. This is particularly so in the circumstances of this case where I believe they ought reasonably have been entitled to assume that anyone who decided to stay on the street during this period of danger would notice their advance and be able to take evasive action.
76. I believe that if I were to hold the defendants liable for an innocent collision between a member of the riot squad and a man making a phone call, albeit entirely well motivated, who had placed himself between demonstrating rioters and a line of riot squad police officers and who because of that telephone conversation remained oblivious to their advance and was renedered incapable of taking any evasive action, would be grossly unreasonable.
77. For all of the aforementioned reasons I have come to the conclusion that the plaintiff was injured accidentally and his injuries were not due to any negligence or any breach of duty on the part of the defendants.
78. If I had found the defendants guilty of negligence I would then have had to consider the extent to which the plaintiffs conduct, in the sense of blame worthiness, contributed to his injuries, a task of which I am now relieved. However, given the complexity of the legal issues in the case and the possibility that I have decided them incorrectly, I think I should express, in a general way, my view as to the plaintiffs conduct on the day in question.
79. As was clear from the evidence, the plaintiff is clearly a devoted father with a very high sense of parental responsibility. Regrettably it was these latter traits that, on the 1ih May, 2011, led him to take a number of risks with his own safety that he might otherwise not have taken.
80. Every citizen is obliged to take reasonable care in carrying out their day to day activities in public places. The level of care that they must take for their safety clearly depends upon the circumstances in which they find themselves.
81. When the plaintiff left his home on 17th May, 2011, he certainly knew that there was trouble in the vicinity of Parnell Street. By the time he got to Dorset Street it should have been clear to him that he was walking into a potentially dangerous situation. There were, according to his own statement, hundreds of “thugs” a substantial number of whom were throwing missiles at that junction. As soon as he got past the rioters at the junction of Eccles Street and Dorset Street and started walking towards Bolton Street he should have noticed the line of riot police blocking both the roadway and the footpath and it ought to have been immediately clear to him that he would not be able to get past the cordon. He should have retreated at that stage knowing that as long as he remained between the rioters and their intended target, the riot squad he would be at risk of injury from any number of sources including missiles such as bricks, bottles and fireworks which were being thrown by the protestors at the riot squad and also from any potential escalation in violence between the two adversaries.
82. I do not think it was reasonable for the plaintiff to conclude that he would be safe just because Dorset Street had not been cordoned off and he had not been advised by the gardaí who were present leave the area. As an intelligent adult, he should have been able to foresee the potential range of dangers to which he was exposing himself.
83. Regrettably, and again for the most worthy of reasons, the plaintiff decided to make a telephone call from the centre of the footpath. He didn’t make his call having sought the protection of a doorway. Neither did he stand with his back to the wall, a position which would have allowed him keep any eye out for potential missiles and for any engagement between the protestors and their target, the riot squad. The video and still images establish that the plaintiff was the only member of the public who did not respond to the escalation in the violence and the movement of the riot squad along the footpath. Eight seconds after a barrier was thrown onto the footpath in front of him, the plaintiff is still on his telephone in the middle of that footpath. Every one else managed to retreated to the protection of the wall or elsewhere.
84. Given that I have concluded that the plaintiff’s injuries were not caused by any negligence on the part of the defendants but rather as a result of a modest accidental collision between himself and a member of the Public Order Unit of an Garda Síochána while carrying our duties in a riot situation, I am thankfully absolved from ascribing any specific degree of blame worthiness to the Plaintiffs own actions.
85. For all of the aforementioned reasons I must dismiss this claim.
Kelly v Commissioner of An Garda Síochána [2015] IEHC 15JUDGMENT of Kearns P. delivered on the 23rd day of January, 2015
This is an application brought by the defendants pursuant to Order 19 rule 28 of the Rules of the Superior Courts seeking to have the Plaintiff’s claim dismissed or struck out on the grounds that the pleadings disclose no reasonable cause of action and that, on the basis of existing law, the Plaintiff’s claim is bound to fail.
The plaintiff is a former miner who resides with his two children at Ballintlea, Sixmilebridge, Co. Clare. He is the lawful husband of Sylvia Roche Kelly who was born on the 7th December, 1974 and who was murdered by one Gerry McGrath on the 8th December, 2007. Letters of Administration in the Estate of Sylvia Roche Kelly were granted to the plaintiff on the 23rd April, 2008. The present claim is one for damages brought pursuant to the provisions of Part IV of the Civil Liability Act 1961 by the plaintiff on his own behalf and on behalf of his two children, aged respectively twenty and eleven years, and other family members of the deceased.
In these proceedings, the plaintiff claims that the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact that he was at large and on bail when he should not have been and that the plaintiff is in the particular circumstances entitled to maintain an action in negligence against the various defendants herein.
FACTUAL BACKGROUND
The following chronology of events sets out the background circumstances of relevance:-
Date Event
1) 30th April, 2007 Accused assaults a female taxicab driver in Cavan:
Admitted to station bail;
2) 17th May, 2007 Accused appears at Virginia District Court:
Remanded on continuing bail;
3) 9th October, 2007 Accused is arrested at the scene of an abduction and false imprisonment of a young girl in Dundrum, Co. Tipperary. Gardai object to bail.
4) 10th October, 2007 Accused appears at Limerick District Court and is
remanded in custody;
5) 23rd October, 2007 Accused appears in Tipperary District Court and is
again remanded in custody.
6) 30th October, 2007 Bail hearing Limerick District Court. Gardai object
to bail but fail to bring taxi driver assault case to
attention of District Judge. Accused is admitted to
bail.
7) 12th November, 2007 The Director of Public Prosecutions directs that
more serious charges be brought in relation to the
Cavan incident;
8) 3rd December, 2007 The accused is charged at Virginia District court,
inter alia, with assault causing harm. The accused
is remanded on continuing bail. No mention of
remand by Limerick District Court;
9) 8th December, 2007 Accused murders Sylva Roche Kelly in Limerick.
Thereafter, on the 7th January, 2008 the accused pleaded guilty to the charges arising out of the assault on the 30th April, 2007 in Cavan. The accused received a nine-month sentence in respect of these offences.
On the 12th January, 2009 the accused received the mandatory life sentence for the murder of Ms. Roche Kelly from the Central Criminal Court.
On the 13th February, 2009 the accused attended Clonmel Circuit Court where he received a ten-year prison sentence in relation to the Dundrum offences, which was made concurrent with the life sentence imposed on the 12th January, 2009.
In the present proceedings brought against the defendants arising out of the aforesaid events, multiple allegations of negligence and breach of duty are raised, but the main allegations are of failure by the gardaí to inform Virginia District Court of the offences in Dundrum, Co. Tipperary in relation to which the accused had been arrested at the scene on the 9th October, 2007 and their failure to seek the revocation of the bail of the accused on the 3rd December, 2007. It is further alleged that the gardaí were negligent in failing to inform the District Judge at the bail hearing at Limerick District Court on the 30th October, 2007 that the accused had been charged with an assault on a female taxi driver in Cavan on the 30th April, 2007, thereby bringing about a situation whereby the accused was allowed to remain at liberty. The murder of Sylvia Roche Kelly took place on the 8th December, 2007, five days after the failure to apply to revoke bail at the sitting of Virginia District Court on the 3rd December, 2007.
It was not suggested in the present proceedings that there had been malfeasance on the part of the gardaí. It was accepted that in general the law, in the absence of mala fides, does not impose an actionable duty of care on gardaí in respect of the performance of their duties. Nevertheless, it was submitted that the recent decision of the High Court (Peart J.) in Smyth & Anor. v. The Commissioner of An Garda Síochána & Ors [2014] IEHC 453 suggested that this was not a principle conferring a ‘blanket immunity’ in all circumstances but rather a principle which admitted of exceptions in special circumstances. It was contended that, having regard to the plain obligation on the gardaí to bring forward certain matters for the attention of a judge dealing with a bail application, the failure of the respondents in this instance to do so was a failure of such egregious proportions as to warrant treating this case as exceptional.
In response, counsel on behalf of the respondents argued that the applicant’s case was “bound to fail” and should be struck out. Ms. Roche Kelly was an unfortunate woman who was killed by Gerry McGrath but there was no special connection between the killer and his victim such as gave rise to a duty of care on the part of the gardaí. Ms. Roche Kelly was not a complainant and had no prior connection to McGrath. There was no special relationship between the gardaí and the applicant, nor was there any assumption of special responsibility in relation to her, factors which were present in the case considered by Peart J. and the cases could be readily distinguished on that basis. In any event, counsel on behalf of the respondents argued that the murder of Ms. Roche Kelly was not foreseeable, and indeed it had not even been pleaded that the particular event was within the range of foreseeability.
Before considering any of the legal authorities on this topic, it is perhaps appropriate to refer to relevant provisions of the Bail Act 1997, an Act which was introduced with a view to tightening up bail laws in the aftermath of a referendum held for that purpose.
Section 2 of the Act provides:-
“2.—(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.
(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive evidence or submissions concerning—
(a) the nature and degree of seriousness of the offence with which the accused person is charged and the sentence likely to be imposed on conviction,
(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,
(c) the nature and strength of the evidence in support of the charge,
(d) any conviction of the accused person for an offence committed while he or she was on bail,
(e) any previous convictions of the accused person including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court,
(f) any other offence in respect of which the accused person is charged and is awaiting trial, (emphasis added) and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977.”
Given that a District Judge, absent evidence tendered by An Garda Síochána, can not know of “any other offence in respect of which the accused person is charged and is awaiting trial”, it was urged upon the Court by counsel for the applicant that this subsection should be purposefully construed so as to permit the Court to take the view that a significant duty of care under the Bail Act fell upon the respondents herein, sufficient to warrant the refusal of the relief sought by the respondents on the present application.
DISCUSSION
The tragic events which followed the communications failures in this case had disastrous consequences for the plaintiff and his family. There are certainly grounds from the above narrative of facts for thinking that there was negligence of a serious kind on the part of the gardaí and in an application of this sort under O.19 the Court must take the assertions underlying the plaintiff’s case as correct. While it is often said that hard cases make bad law, this is a particularly hard case where there is an understandable temptation to think that Ms. Roche Kelly’s family should not be left uncompensated. An internal Garda inquiry – even if culminating in significant disciplinary measures against the gardaí concerned – could never fully address the loss suffered by the family of the murdered woman.
Undoubtedly there are serious problems with our system of bail, not least in monitoring those on bail and in monitoring compliance with conditions attaching to bail. The monitoring of persons on bail is simply not possible and evidence to that effect was given by Deputy Chief Inspector Kevin Toland to an Oireachtas committee last week on behalf of the Garda Inspectorate. That committee was also told that about one quarter of recorded headline crime, more than 20,000 offences, including murders and rapes, is committed by people on bail. There is no power of arrest available to a member of An Garda Síochána for breach of a bail term and the member must in every case go back to court to seek a summons or a warrant. The amount of Garda time presently taken up by the failure of persons granted bail to abide terms of bail is considerable. These observations do not bear directly on the instant case but I include them as providing a wider context wherein practical considerations – such as adequacy of resources for any alternative modus operandi for An Garda Síochána – may be borne in mind when considering the kind of issues that arise in this case.
Our existing law is premised on the recognition that the work of the gardaí in the investigation and prosecution of crime would be rendered virtually impossible if an additional duty of care, actionable in damages, were to be superimposed on their already extremely difficult task in investigating and suppressing crime. This view is one which has been expressed firmly and repeatedly over the years by courts in this and our neighbouring jurisdiction. Mere failures of communication or failures to follow up lines of investigation would, if actionable in damages, inevitably drive the force into ever more defensive modes of performing their duties. How satisfactory would it be if cases in which offenders released on bail go on to commit further offences leave the Gardaí at risk of being sued in virtually every such instance by a victim of such crimes?
These are some of the policy considerations which have persuaded the courts in common law jurisdictions that it is not in the public interest to impose an actionable duty of care upon An Garda Síochána in the discharge and performance of their functions, many of which have been rendered more difficult and onerous through lack of resources. One must of course look at the particular facts of the case in every case, but ultimately one must also have regard to the total detriment to the public interest in all cases if some other approach is to be adopted in a particular case with hard facts such as this one. In the course of his judgment in Whelan v. Allied Irish Bank plc and others [2014] IESC 3, O’Donnell J. explained the difficulty and the approach which he felt had to be adopted:-
“…The just and reasonable test in Glencar is also essentially a policy consideration and it has been determined long ago that it is just and reasonable that a solicitor, or indeed any other professional advisor, should owe a duty of care in such circumstances. It is also important that the question must be approached at that level of abstraction. As Lord Browne-Wilkinson observed in Barrett v Enfield London Borough Council [2001] 2 AC 550 (pp. 559-560):
‘….The decision as to whether it is fair, just and reasonable to impose liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered…..Questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors are liable to shareholders for negligent auditing, are not liable to those proposing to invest in the company…That decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.’
The test does not mandate or permit a consideration of each individual case and whether the imposition of a duty of care, and therefore liability, meets some undefined concept of fairness in the particular case. If that were so, then the law would be no more than the application of individual discretion in different facts or circumstances which might well be decided differently from court to court. In such circumstances, the law of negligence would be little more than the wilderness of single instances criticised by Tennyson.”
In the case of Lockwood v. Ireland and Ors. [2011] 1 IR 374, this Court dismissed a claim made against the gardaí by a rape complainant, when a rape trial collapsed on account of a mistake made in the arrest of the accused (i.e. the arrest was deemed unlawful, leading to the inadmissibility of statements). The Court took the view that there was no duty of care in tort such as would create an entitlement to damages arising from the manner in which the gardaí conducted its investigation, and that a claimant would have to establish male fides on the part of the gardaí in order to maintain a claim for damages in such circumstances.
In L.M. v. The Commissioner of An Garda Síochána and Ors. [2011] IEHC 14, the High Court (Hedigan J.) found against a plaintiff who complained that the gardaí failed to properly investigate and prosecute a rape allegation. The formal rape complaint was made in May 1990 when the plaintiff was a child. No steps were taken between December 1990 and September 1996 until the English Child Protection Agency contacted the gardaí. The UK police interviewed the alleged perpetrator in April 1997 and he was thereafter extradited back to Ireland in October 1998 and convicted. The Court of Criminal Appeal quashed the conviction in 2001 and an order prohibiting a retrial was later granted. The plaintiff’s mental health deteriorated thereafter, and she sued An Garda Síochána for their delay in prosecuting the claim. Dealing with the elements required to impose liability, Hedigan J., held as follows:
“The necessary elements are proximity, foreseeability, considerations of public policy and also the test of whether it is just and reasonable to impose a duty of care. The key issue in this case is whether it would be contrary to public policy to impose a duty of care on the gardaí. It seems to me that the cases cited above establish that no duty of care exists in Irish law upon the defendants in respect of their investigatory or prosecutorial functions. This is because it would be contrary to the public interest that such a duty be imposed by reason of the inhibiting effect this would have on the proper exercise of those investigatory and prosecutorial functions. It is in the public interest that those bodies should perform their functions without the fear or threat of action against them by individuals. The imposition of liability might lead to the investigative operations of the police being exercised in a defensive frame of mind. A great deal of police time, trouble and expense might have to be put into the preparation of the defence to the action and the attendance of witnesses at the trial. The result would be a significant diversion of police manpower and attention from their most important function, that of suppression of crime.” (at page 26)
In the case of AG. v. J.K. and Ors. [2011] IEHC 65, Hedigan J. was again asked to consider the liability of An Garda Síochána. The plaintiff’s case was that the gardaí had asked her to provide accommodation to the husband of her murdered friend when he could no longer reside in his house (as it was a murder scene). The husband had a previous rape conviction. The plaintiff thereafter alleged that the husband later raped her. After reviewing the authorities the Court found that no duty of care existed. At page 24 of his judgment Hedigan J. stated:
“The crucial question is as to whether their action in bringing J.K. to A.G.’s house was something done in the course of their investigatory functions that night. I do not think it is possible to hold it was not…. It was inextricably a part of their investigatory functions that night. This I think disposes of the case. On the basis of the now well established law outlined above no duty of care arises from the circumstances herein.”
These various Irish decisions reflect the views expressed by the House of Lords in its seminal decision in Hill v. Chief Constable of West Yorkshire [1989] AC 53.
The facts of Hill are well known. The plaintiff was the mother of a woman who was killed by Peter Sutcliffe, otherwise known as “The Yorkshire Ripper”. The plaintiff alleged that the police investigation was negligent, and that if a proper investigation had been carried out Sutcliffe would have been apprehended sooner and her daughter would therefore not have died. The plaintiff’s mother claimed that the police were under a duty to use their best endeavours and exercise all reasonable care and skill to apprehend the perpetrator – who was unknown at the relevant time – and so protect members of the public who might be his future victims. A number of matters were particularised as to how the police had failed to exercise such reasonable care in the course of their investigation.
The Court held that, although police officers could be liable in tort to persons injured as a direct result of their acts or omissions, there was no general duty of care owed by them to identify or apprehend an unknown criminal, nor do they owe a duty of care to individual members of the public who might suffer injury through the criminal’s activities save where their failure to apprehend him had created an exceptional added risk, differing in incidence from the general risk to the public at large from criminal activities, so as to establish sufficient proximity of relationship between the police officers and the victims of the crime. It was held that although it could have been reasonably foreseen that S., if not apprehended, would be likely to harm young female members of the public, the fact that the plaintiff’s daughter had been young and female did not of itself place her at special risk and there being no other additional characteristics capable of establishing a duty of care owed towards her by the defendant in relation to the apprehension of S., the judge had been right to strike out the statement of claim as disclosing no cause of action. It was also held, further, that as a matter of public policy the police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime.
The underlying rationale for non imposition of an actionable duty of care was outlined in the speech of Lord Keith of Kinkel where at p. 63 he stated:-
“A potential existence of such liability may in some instances be in the general public interest, as tending towards the observance of a higher standard of care in the carrying on of various different types of activity. I do not, however, consider that this can be said of police activities. The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would not be uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crimes.”
Notwithstanding the apparent clarity of the underlying principle which was applied in the three Irish decisions cited above, it is suggested that the case of Smyth and Anor. v. The Commissioner of An Garda Síochána and Ors., [2014] IEHC 453, represents a move away from any kind of automatic exclusion. The High Court (Peart J.) refused to dismiss the plaintiffs’ claims, in circumstances where it might have been expected that a dismissal would be ordered on public policy grounds, stating that:
“It seems clear from some of the cases to which I have referred that there has been a movement away from the absolute exclusion of a duty of care on the part of the police in the matter of their investigation and prosecution of crime – perhaps less so in the House of Lords, though even there exceptions to the full force of the Hill principle have been identified. The Court of Appeal in a number of cases has been prepared to permit some such claims go to trial rather [than} be struck out on a preliminary application to strike out. The cases decided in this jurisdiction thus far seem to apply the full exclusionary principle of Hill based on public policy without permitting of exceptions.” (at para. 69)
At paragraph 74 of the judgment it is stated as follows:
“I do not consider that these policy considerations must be taken as holding good for all time. As I have said, the Hill principles as originally enunciated have been diluted over time. Exceptions have been identified, and it is right that such be the case in my view.”
The basis for an exception being made in the Smyth case was the subject of lengthy analysis in this comprehensive judgment, one feature influencing Peart J. being the presence of a special relationship between the plaintiffs and the defendants (by virtue of the fact that one of the complainants was a garda and the other did work with them). Further, the learned trial judge found that there had been an ‘assumption of responsibility’ by the gardaí in the particular circumstances of that case. These considerations fulfilled two of the principles outlined in the case of Glencar Exploration plc v. Mayo County Council (No. 2) 2002] 1 IR 84, and persuaded Peart J. to refuse, at least at the interlocutory stage of the proceedings, to dismiss the proceedings.
It is submitted on behalf of the plaintiff that there is an even stronger basis for making an exception in the present case, involving the death of Mrs. Sylvia Roche Kelly. The impugned activity of An Garda Síochána did not involve investigative activity, so strictly speaking it is not covered by the case law insofar as it relates to the investigation of crime. Also, it does not (at least arguably) involve ‘prosecution’ activity, so neither is it covered by the reference to such activity in the case law. Even if it is deemed to amount to prosecution activity, the Smyth case illustrates that this need not lead to automatic exclusion of liability. The activity complained of relates to a discrete area of garda activity covered by Statute, namely, that relating to the granting of bail. It is submitted that this area brings into play unique public policy issues which are as likely to promote the concept of liability as to exclude it.
It was submitted on behalf of the plaintiff that on any analysis of the facts of the Roche Kelly case, such public policy reasons as might be in favour of exclusion are outweighed by the public policy in favour of applying ordinary liability principles. This is so because the entire bail system, as a matter of public policy, attempts to avoid bail being granted to a person who may go on to commit a serious offence.
Some further reliance was placed by the plaintiff on Article 2(1) of the European Convention on Human Rights which imposes upon the State an obligation to protect the life of individuals against the acts of third parties which may be taken as including particular victims identifiable in advance as potential targets of lethal acts and also those not identifiable in advance. Reference was made to the case of Maiorano v. Italy (case no. 28634/06) in which the court, in a decision given on the 15th December, 2009, found that the Italian state was responsible in damages in respect of a double murder committed by a dangerous offender who was allowed out on day release. While it had not been possible to identify in advance the two murder victims as potential victims of crime, Article 2 required the general protection of society from potential danger such as that arising from a person who had been convicted of violent crime. In that case the court emphasised that Article 2 enjoined the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. One factual element of note in this case was the failure by the public prosecutor’s office to forward information on the perpetrator’s criminal activities to the relevant decision-maker.
In considering the application of the provisions of Article 2(1) of the Convention, as introduced into Irish law by s.3 of the European Convention on Human Rights Act 2003, it was submitted that the following facts were of relevance. First, members of An Garda Síochána knew that the accused was a dangerous person, having committed two serious and unusual crimes against females in the same year, in different locations and involving strangers on both occasions. It was at all times within the power of the gardaí to make an application that the bail granted in Cavan should be revoked and yet they failed to do so. Further, at the bail hearing on the 30th October, 2007 in Limerick District Court, the gardaí failed to make the District Court Judge aware of perhaps the most important fact of all, namely, that the accused was already on bail in respect of another offence committed in Cavan.
More generally, it was submitted that there is a heavy onus of proof resting on a defendant in an application of this nature (i.e. under Order 19 of the Rules of the Superior Courts) and reference has been made in the plaintiff’s submissions to the decision of the High Court (Clarke J.) in Salthill Properties v. Royal Bank of Scotland [2009] IEHC 207, where the potential for evidence emerging in the course of a case (e.g. by discovery) is emphasised. It was submitted that the potential in the instant case of some such evidence emerging was a very real one and it would be difficult at the present stage for the Court to form a clear view that the claim must necessarily fail. In cases where somewhat novel questions of law arise against a backdrop of unusual and complex facts, the High Court had recently held in D.F. v. Garda Commissioner & Ors. (Hogan J.) [2014] IEHC 213, that the summary strike out jurisdiction should not be applied “to an action involving serious investigation of ancient law and questions of general importance”. While the instant case does not involve questions of “ancient law” the general principle expressed by Hogan J. was nonetheless relevant. This case raised novel and difficult issues and was not well adapted to the summary strike out jurisdiction.
Not least because of the detailed and careful consideration given to the law by Peart J. in the case of Smyth v. An Garda Commissioner, I believe it is important to have particular regard to the facts of that case. In that case each of the plaintiffs (i.e. Paul Smyth, a Chief Superintendent in An Garda Síochána and Philip Smyth, his brother and a well-known hotelier) pleaded that the defendants were negligent in carrying out an investigation into complaints advanced by them of criminal conduct going back over a number of years. The case advanced by Philip Smyth was to the effect that the defendants failed to cause a full and proper investigation to be carried out into anonymous and false information which gave rise to a search by An Garda Síochána of his hotel premises on the 12th September, 1998 and the falsity of anonymous phone calls to the South East Regional Crime Squad of the Metropolitan Police Force in London between 1992 and 1995 alleging serious crimes of a subversive nature against both Philip Smyth and his brother Paul Smyth, who was then a serving officer in An Garda Síochána of Chief Superintendent rank. The anonymous calls allege complicity in drugs trafficking and a money laundering operation on behalf of the IRA through his companies. In the pleadings it was alleged that because Paul Smyth was a member of An Garda Síochána, he had a special relationship with the gardaí such that a duty of care was owed to him by An Garda Síochána to carry out a full and proper investigation of his complaint. In the case of Philip Smyth there was also alleged to have been a special relationship between him and members of An Garda Síochána by virtue of certain engagements between him and An Garda Síochána in relation to certain other matters unrelated to the facts of the proceedings. Despite knowing the identity of the principal suspects for the making of hoax calls disseminating false information, the investigating gardaí did not follow up the information in their possession, nor were steps taken to put a stop to the calls. It was also alleged that An Garda Síochána failed to request the cooperation of the U.K. authorities in dealing with the matter so that civil proceedings had to be commenced to ascertain the true facts. It was further alleged that Chief Superintendent Smyth suffered from the fact that false allegations were allowed to linger and he alleged that various promotional opportunities were lost to him because a cloud of suspicion and taint was allowed to linger over his good name.
Having recited the factual background in much more detail, Peart J. embarked upon a comprehensive review of legal authorities in this jurisdiction, the United Kingdom and the European Court of Human Rights in Strasbourg before concluding that there may be categories of cases, such as that before him, where it should be left to trial to determine if the plaintiff’s claim must fail and that in those cases it would be wrong to hold that a blanket immunity from suit was enjoyed by An Garda Síochána. I gratefully adopt his review of the various twists and turns taken by those courts in their efforts to deal with the complexities of this issue.
At paragraph 65 of his judgment he stated:-
“The cases decided here to date have necessarily been decided on their own particular facts. In so far as there may be a suggestion in the present case that the Irish cases to which reference has been made and which have been struck out as showing no reasonable cause of action have been struck out on the basis that no claim in negligence against An Garda Síochána can ever succeed on policy grounds, I would respectfully disagree with such an absolute interpretation of the Hill principle, especially in the light of the English cases to which I have made such extensive reference. … I believe that there may be cases which should be left to trial rather than be struck out on the basis that they are doomed to fail as it has been put.”
At paragraph 70 he stated:-
“Each of the Irish cases to which I have referred are cases decided of course on their own facts. I am not to be taken as in any way saying that they were wrongly decided. But I do think that on an application to strike out, as in this case, the plaintiff’s case must be looked at very carefully. The assumed facts must be taken at their highest, and as in the present case the existence of a special relationship must be assumed to be established as it is what is pleaded. Consideration of a special relationship does not appear to have been a feature of the cases already decided here to which I have referred. In the present case it is pleaded. The court cannot therefore on this application assess the merits of that argument as it would have to do at trial. The defendants have conceded the facts and pleas of the plaintiffs for the purpose of this issue. It may well be that the basis for the claim of a special relationship may founder at the hearing. But in spite of the decided cases here to date and the resolute adherence to the total exclusionary principle in Hill, I would be prepared to hold that such a relationship may in a particular case give rise to a closer proximity between the parties than in the ordinary case such as L. v. Ireland where simply a trial collapsed because a mistake had been made in relation to the arrest of the accused person. I can readily agree that public policy would require that An Garda Síochána should not be exposed to claims arising from such matters, absent mala fides.
71. An exception to the rule has been permitted where there has been an assumption of responsibility by the police. Again, it has been submitted in the present case that there was an assumption of responsibility by An Garda Síochána for fully investigating the plaintiff’s complaints and uncovering the author of the hoax calls when assurances were given that this would be done. Again, that may or may not turn out to accord with the evidence at trial, but it is pleaded and must be assumed. Even though in G. v. Minister for Justice, Equality and Law Reform [2004] 3JIC 1903, Hedigan J. on the facts of that case concluded that what happened was part of the investigatory process and that that was sufficient to dispose of the case, there may again be cases where what leads to injury and loss is the result of something which happens outside the investigatory process. This case may be such a one or it may turn out not to be; but I think the plaintiffs ought not to be barred from at least attempting to make the case that they plead, on the basis of what if, though not in name, in practice seems to operate as a blanket immunity.”
It seems clear from the foregoing that, far from any attempt to undermine the principles enunciated in the earlier decided cases, Peart J. was focussing on what was described in an earlier part of his judgment as a “narrow aperture” opened up by the particular facts of the case under consideration. He did not purport in any way to depart from the principles accepted by the plaintiffs in that case, consisting of the three tier test adopted in differing forms in this jurisdiction in cases such as Ward v. McMaster [1985] I.R. 29, Glencar Exploration plc v. Mayo County Council [2002] 1 IR 84 and Beatty v. Rent Tribunal [2006] 2 IR 191.
The three tier test to ascertain whether a duty of care exists towards a particular plaintiff requires that the following pre-conditions be met:-
1) That there is a relationship of such proximity between the parties as to call for the exercise of care by one party towards the other;
2) That it is reasonably foreseeable that breach of the duty of care will occasion loss to the party to whom that duty is owed; and
3) That it is just and reasonable that the duty should be imposed.
The first of these two conditions were found to have been satisfied in the Smyth case as already indicated and, that being so, it is understandable that Peart J. would have declined to strike out or dismiss the plaintiff’s claim as having no reasonable prospect of success, particularly when the facts of the case before Peart J. were so markedly different from those in the case of Hill. (Hill v. Chief Constable of West Yorkshire [1989] AC 53)
However, the facts in Hill bear very considerable resemblance to the facts of the instant case. The error or negligence arose on the operational side as distinct from the policy side of the respondents’ functions. The victim and the perpetrator of the criminal offence were unknown to each other. There was no assumption of special responsibility by the police authorities such as arose in the Smyth case. Indeed in the instant case, counsel for the respondents has pointed out that the murder of the plaintiff’s wife was not even pleaded as having been foreseeable.
Given that on an interlocutory application of this nature, every fact as pleaded must be assumed to be true, the omission of that particular plea is particularly significant.
CONCLUSION
As already stated, hard cases make bad law. In this case, with the benefit of hindsight, one finds it difficult to avoid strong feelings of frustration and anger over how matters were handled by An Garda Síochána. The failure to advise the judges called upon to address issues of bail in respect of a number of serious incidents was both negligent and disgraceful. It deprived those judges of the opportunity to properly evaluate the facts in relation to McGrath’s ongoing liberty, and the Court is satisfied that any reasonably informed judge or lawyer would have taken the view that bail would have been refused or revoked if the full facts had been made known to either court. Of course it is possible – given that it was a matter for judicial determination – that even if informed of the true position, there remained an outside possibility that, subject to strict bail conditions, bail might have been granted, but, for the purposes of this judgment, I am taking the view that it would not.
However, and even assuming this to be one of the worst cases of Garda negligence imaginable, it could not be said, in my view, that there existed in this case the requisite degree of proximity between the unfortunate deceased and her killer or that the death she met at his hands in a hotel bedroom was reasonably foreseeable from any of the information available in this case. The prior incidents of an assault on a female taxi driver at a location at the other end of the country and the abduction of a young girl in Tipperary on the 9th October, 2007 could not in the view of the Court have met a foreseeability test (even had it been pleaded) insofar as the death of Sylvia Roche Kelly is concerned. The victim and her assailant were unknown to each other and to say that requirements of proximity and foreseeability were met merely because of the gender of the deceased is not, in my view, a sustainable proposition.
Still less can it be said that in this case An Garda Síochána assumed some sort of special responsibility towards Sylvia Roche Kelly as distinct from the public in general. The facts of this case are, in my view, clearly distinguishable from those addressed by Peart J. in the Smyth case.
To the extent that the European Court of Human Rights may in the past have taken a somewhat different view from those expressed by the House of Lords in the Hill case, notably in the decision in Osman v. United Kingdom [1998] 29 EHRR 245, the same topic was revisited in their decision in Z. v. United Kingdom [2002] 34 EHRR 3 where the court concluded (at para. 100):-
“… The Court considers that its reasoning in the Osman judgment was based on an understanding of the law of negligence which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords. The Court is satisfied that the law of negligence as developed in the domestic courts since the case of Caparo Industries plc and as recently analysed in the case of Barrett v. Enfield includes the fair, just and reasonable criterion as an intrinsic element of the duty of care and that the ruling of law concerning that element in this case does not disclose the operation of an immunity. In the present case, the Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law.”
Hedigan J., himself a distinguished former member of the European Court of Human Rights, felt able to state at para 6.5 of his judgment in the L.M. case:-
“In the Z case the European Court of Human Rights reviewed the jurisprudence of the House of Lords on actions for police negligence. The court held that in light of developments in the domestic courts it was clear that what was involved in such cases was not a blanket immunity from suit which the police enjoyed, but rather that under substantive domestic law there existed no duty of care owed by the police in their investigatory and prosecutorial functions. This it was held was in accordance with the convention.”
The Court was referred to a summary note of a judgment delivered post Osman by a divisional chamber of the European Court of Human Rights in the case of Maiorano & Ors. v. Italy (Application No. 28634/06) where the state was held responsible in respect of a double murder committed by a dangerous offender, Angelo Izzo, while on day release.
The case in question concerned the obligation of the Italian judicial system to afford general protection to society against potential danger from a person who had been convicted for a violent crime. The court did not find fault in general with the arrangements in Italy for the resettlement of prisoners. The system had a legitimate aim and provided for sufficient safeguards. However, the manner in which that system had been applied in Mr. Izzo’s case was questionable. The court noted that the positive factors which had led the Palermo sentence execution court to grant day release, in particular the favourable reports by probation officers and psychiatrists, had been counterbalanced by many indications to the contrary. Throughout his imprisonment, Angelo Izzo had in fact regularly committed criminal offences and his behaviour had shown that he had a tendency to disrespect the law and authority. In view of the dangerousness of a repeat offender who had been convicted of exceptionally brutal crimes, those circumstances should have led the sentence execution court to be more prudent. Secondly, the court noted that the public prosecutor of Campobasso had been promptly made aware of the fact that Angelo Izzo, once granted day release, had re-established contacts with the criminal underworld and was actively planning criminal acts. Despite the fact that it had taken this danger seriously, and had even ordered police surveillance, the public prosecutor’s office had not informed the sentence execution judge with a view to the possible withdrawal of the day release scheme.
The court took the view that the granting by the Palermo sentence execution court of day release to Angelo Izzo, despite his criminal record and behaviour in prison, together with the failure by the public prosecutor’s office of Campobasso to forward information on his criminal activities to the sentence execution judge, had constituted a breach of the duty of care required by Article 2 of the Convention. Accordingly, the court held unanimously that there had been a violation of Article 2 under its substantive head. The court awarded €10,000 to the father of the man whose wife and daughter had been murdered by Izzo, the father being a prisoner whom Izzo had known in Palermo prison. Other relatives were awarded €5,000 each.
This finding was made against a background where the applicants had filed a criminal complaint against the police prosecutors who, they allege, should have forwarded to the sentence execution courts information in their possession from two fellow prisoners of Izzo about his “suspicious behaviour” and in particular “his intention to commit a murder”. Those complaints had not been acted upon and no disciplinary action had been taken against those prosecutors. It was in these circumstances that it was held that the state had not entirely fulfilled its positive obligation to ascertain whether any responsibility could be imputed to its agents in respect of the double murder.
It seems to this Court that this case can not be taken as speaking directly to the facts of the case before this Court. The Italian case is one which arose under a different criminal and judicial structure and was one where the offender had been convicted of similar offences in the past, was serving a prison sentence, and was released under a day release system against a backdrop where relevant authorities had failed to act on specific warnings of his declared intention to commit further crimes. It is not a case, nor does it purport to be a case, which could be taken as rolling back the considered view of the full Court expressed in the “Z Case” as to the adequacy of domestic law in a common law jurisdiction. The summary provided to this Court does not in any way address the issue of an unconvicted person being at large due to communications failures, negligent or otherwise, which might have conveyed to the relevant judge under a different legal system information which was relevant to its decision whether or not to grant bail.
While the threshold for success in an application under order 19 is a high one, the underlying facts of this case are not in dispute, nor has it been shown that discovery could lead to the establishment of any facts which might satisfy the requirements of the first two limbs of the test in Glencar Explorations plc v. Mayo County Council [2002] 1 IR 84.
The Court is therefore compelled, notwithstanding the many disturbing aspects of this case which hopefully will result in an appropriate investigation elsewhere, to dismiss the plaintiff’s claim, not on the basis of some supposed ‘blanket immunity’ but because long established common law principles whereby a duty of care is deemed to arise are not present on the facts of this most unfortunate case.
Mooney v Commissioner of An Garda Síochána [2016] IEHC 252
JUDGMENT of Mr. Justice Gilligan, delivered on the 15th day of March, 2016.
1. The plaintiff in these proceedings, which were held in camera, alleges that as a result of representations made to him, he entered into the Witness Security Programme giving evidence against two identified individuals who were convicted and sentenced to terms of imprisonment. He alleges that members of An Garda Siochana made a number of verbal representations to him which would have resulted, inter alia, in him being provided with a very substantial sum of money, with a new identity, and relocated abroad in a specified country of his choice, with all the necessary documents, to enable him to start a new life and to work in the specified country. 2. The plaintiff contends that the defendants failed to honour the representations as made to him on their behalf and as a result he has suffered loss and damage, and in particular he claims the following reliefs:-
1. An Order directing the defendants and each of them, their servants or agents, to take all necessary steps to place the plaintiff in the State’s Witness Protection Programme and to provide him with the benefits thereof;
2. A Declaration that the plaintiff and the defendants entered into a binding agreement, which is still enforceable, whereby in return for the defendants’ promise to place the plaintiff in the State’s Witness Protection Programme the plaintiff agreed to provide certain information to the Gardai and to give certain evidence at the trial of two individuals who, partly on foot of that evidence, were subsequently convicted;
3. An Order for specific performance of the said agreement;
4. A Declaration that the defendants, their servants or agents were guilty of misfeasance in Public Office and/or of abuse of the said office in pursuing a course of conduct (by making representations to the plaintiff that he would be protected by means of being admitted into the defendants’ Witness Protection Programme) designed to induce the plaintiff to provide certain information to the Gardai and to give certain evidence at a criminal trial, in the knowledge that failure to follow through on those promises or to take any bona fide steps to honour same would expose the plaintiff to grave risk to his physical and mental wellbeing, bodily integrity and his ability to earn a livelihood;
5. Damages for breach of contract;
6. Damages for negligence, breach of duty, and misrepresentations;
7. Damages for breach of legitimate expectation;
8. Damages for breach of the plaintiff’s constitutional rights;
9. Damages for misfeasance in Public Office;
10. Damages for deliberate and/or reckless infringement by the holders of Public Office of the plaintiff’s constitutional rights to his psychological and bodily integrity and right to earn a livelihood;
11. Exemplary, punitive and/or aggravated damages;
12. Such further or other relief as this Honourable Court shall seem fit;
13. Interest pursuant to the Courts Act, 1981;
14. Costs.”
3. The various allegations as made on the plaintiff’s behalf and the reliefs as sought are all denied on the defendants’ behalf and in particular, it is alleged that the Witness Security Programme is a non-statutory scheme operated by An Garda Síochána whereby witnesses to criminal offences can be protected by means of the provision of various services and facilities ranging from the provision of security advice to full relocation and identity change where appropriate. The extent of the participation of a given witness is determined by reference to the extent of the security threat against that witness. It is submitted on the defendants’ behalf that the determination of An Garda Síochána as to the extent of the protection necessitated in a given case is based on an expert assessment of all of the relevant information and by its nature is not amenable to review. Moreover, the defendants’ contend that the nature of the function exercised by An Garda Síochána in deciding the extent of the protection to be afforded to a witness is in the nature of a function which is incapable of giving rise to a duty of care as pleaded by the plaintiff.
4. At the commencement of the hearing, it was clarified on the plaintiff’s behalf that:
• The plaintiff asked the court to note the evidence that there is still a real and ongoing risk to the plaintiff’s life and to note the commitments of the defendants in that regard allowing the parties liberty to apply.
• The plaintiff seeks damages in a sum of €600,000.00 being made up of the sums of €350,000.00 and €250,000.00, which the plaintiff alleges was represented to him by a member of An Garda Siochána as being the appropriate sums for starting a business and purchasing a house.
• The plaintiff no longer seeks specific performance of the alleged agreement as entered into between himself and the Commissioner of An Garda Síochána.
Background
5. The background details of this case are that in or about May/June, 2002, the plaintiff, in association with a number of other persons, opened a nightclub in Dublin. The plaintiff was approached by two individuals who indicated to him that unless he paid protection money to them on behalf of the IRA for use to support prisoners’ wives, the club premises would be destroyed and the business would never get off the ground.
6. It is not disputed but that the plaintiff paid a substantial sum of money to the two individuals, but unfortunately, in any event, a few nights after the club had opened there was a very substantial orchestrated disturbance as a result of which the plaintiff made a complaint to An Garda Siochána, and agreed to provide a written statement in which he very clearly implicated the two individuals in illegal criminal activity, and this brought the plaintiff to the attention of higher officials within An Garda Siochána who assessed the plaintiff, accepted that his life was under serious threat if he was to give evidence against the two individuals and, on the 30th August, 2002, an application was made by the Special Detective Unit of An Garda Siochána to have the plaintiff admitted to the Witness Security Programme. On the 19th December, 2002, a meeting took place within An Garda Siochána at which it was agreed to admit the plaintiff into the programme, and the plaintiff was relocated within this jurisdiction. On the 10th February, 2003, the plaintiff signed a protocol document (The “Entry Document”). Throughout 2003, there were difficulties with the plaintiff’s participation in the Witness Security Programme which is best explained by the plaintiff’s particular personality, the type of lifestyle he had been used to living, the fact that he appears to have been a very outward going person who enjoyed a very full social life, the fact that there was clearly a personality clash between the plaintiff and his handlers within the Witness Security Programme, the fact that the plaintiff, to a significant extent, appears to have been out and about in public, and, on at least one occasion, indicated to a person he had just met that he was part of the Witness Security Programme. He indicated further to a number of people that he was a member of An Garda Siochána, a Detective Sergeant, and a member of certain other specialist divisions of An Garda Siochána. He indicated at times that he would not give evidence at the trial of the two individuals in the Special Criminal Court, and provided information to certain persons and sections of the media, all of which led to very strained relations between the plaintiff and his handlers leading into the trial of the two individuals which commenced in the Special Criminal Court.
7. It is of some significance to state that the plaintiff was a person who had no criminal record whatsoever and was an unusual subject to be taken into the Witness Security Programme, and was one of the first Irish citizens to come forward to give evidence against members of the IRA in a court of law.
8. The plaintiff gave his evidence during the course of the trial and was highly commended by the Court and described as a truthful and reliable witness. This aspect was heavily relied on in the Court of Criminal Appeal and, subsequently, in the Supreme Court, and again in the European Court of Justice, and there is no doubt but that the plaintiff’s evidence was the vital factor leading to the conviction of the two individuals who were each sentenced to four years imprisonment.
9. The plaintiff found his participation in the Witness Security Programme particularly difficult and from time to time he broke free of it and was involved in several incidents, which did result in citizens who were involved directly with the plaintiff making contact with An Garda Siochána and making a complaint about him and his behaviour.
10. Subsequent to the trial, in or around 9th December, 2003, a meeting was held with the plaintiff and a decision appears to have been taken in the background by An Garda Siochána that there should be a final agreement with him, whereby he would be paid a relatively substantial sum of money at the time bearing in mind the plaintiff’s own financial circumstances, and that would be a conclusion to the matter save only that, if he had any apprehension or the relevant members of An Garda Siochána had any apprehension that he was at a continuing risk, further arrangements for his security would be made for him.
11. In any event, on the 3rd February, 2004, the plaintiff signed a memorandum of understanding (the “Exit document”) with An Garda Siochána and on or about the 4th February, 2004, he received the first payment pursuant to that memorandum of understanding and a year later, in early 2005, he received the second and final payment.
12. The plaintiff’s case, in essence, is that members of the Witness Security Programme had discussions with him both prior to signing the initial agreement and subsequent thereto, leading into the trial in the Special Criminal Court and subsequent thereto, to the effect that the plaintiff would be provided with sufficient funds to commence a new business abroad, the necessary funds to purchase a house, that he would be provided with a new identity and inter alia, the necessary documentation to enable him to reside and work in a specified country. The plaintiff contends that it was on the basis of this representation that he entered the programme, gave evidence, placed his life at risk and that having done so, those members of An Garda Siochána responsible for the Witness Security Programme failed to honour their representations to him and, effectively, in early 2004, duped him into signing an agreement, and that they have failed to honour their legal commitment to him.
13. On the contrary, the defendants maintain that the arrangement as between An Garda Siochána and the person taken into the Witness Security Programme is at the discretion of An Garda Siochána, and in the particular circumstances the plaintiff failed to adhere in a material way to the obligations that were placed upon him when admitted into the programme. It is contended on the defendants’ behalf that the plaintiff, on several occasions, blew his cover, represented himself as a member of An Garda Siochána and, in general terms, brought about a situation whereby no host country could be asked to accept him, and even if asked, would not accept him, and even if they did accept him and he behaved in a like manner, he would be disowned by the authorities in the host country and returned to Ireland because they would not wish that their witness security system in any way would be exposed or compromised. There is also the difficulty as maintained on the defendants’ behalf that in the particular circumstances of this case, the plaintiff has gone to the media and completely exposed his situation. The defendants, in the circumstances, took the view that the most appropriate course of action was that a final arrangement should be entered into which let the plaintiff remain in Ireland subject to certain ongoing arrangements for his security, and he was compensated for his cooperation.
Submissions on behalf of the plaintiff
14. Counsel for the plaintiff, Mr. McCullough, submits that this case involves the legal principles in relation to the duty of care and the duty to act fairly, the doctrine of legitimate expectation and its application, misrepresentation, misfeasance in public office, the right to bodily integrity, and the right to work pursuant to the Constitution.
15. In relation to the claim pursuant to a duty of care and the duty to act fairly, counsel for the plaintiff referred to the dictum of Walsh J. in East Donegal Cooperative v. Attorney General [1970] I.R. 317 where he stated at p. 341:
“…the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts.”
16. The programme is non-statutory and, as such, does not come squarely within this dictum. However, counsel contends that the approach in East Donegal subtends a broader proposition articulated by Hardiman J. in Dellway Investments Ltd v National Asset Management Agency [2011] 4 I.R. 1 at 279 (albeit again against a statutory background), in which he adopted an extract from De Smith Judicial Review of Administrative Action (6th ed., 2009, Sweet & Maxwell) as a statement of the position in this jurisdiction:
“The term ‘natural justice’ has largely been replaced by a general duty to act fairly which is a key element of procedural propriety. On occasion, the term ‘due process’ has been invoked. Whichever term is used, the entitlement to fair procedures no longer depends upon the adjudicative analogy, nor on whether the authority is required or empowered to decide matters analogous to a legal action between two parties. The law has moved on; not to the state where the entitlement to procedural protection can be extracted with certainty from a computer, but to where the Courts are able to insist upon some degree of participation in reaching most official decisions by those whom the decisions will affect in widely different situations, subject only to well established exceptions.”
17. As Hardiman J. concluded at page 289:
“It appears to me, therefore, that there is ample authority both in Ireland and elsewhere for the existence of a right to fair procedures in the making of a discretionary decision by a public official or officials is based on the status of the person claiming such fair procedures as a person who is or may be ‘affected’ or ‘adversely affected’ by such decision.”
18. Hardiman J. also made reference to the dictum of McMahon J. in Khan v. Health Service Executive [2008] IEHC 23, where he observed, in the context of natural justice and the duty to act fairly, that:
“… the H.S.E. must comply with rules which adhere to fair procedure/standards. The H.S.E. might like it to be otherwise. To those involved in administration, adherence to fair procedure standards may appear cumbersome, irritating and even irksome on some occasions. Undoubtedly, the necessary adherence may slow down the administrators and may not be conducive to efficiency. But that is the way it is. The battle between fair procedures and efficiency has long since been fought and fair procedures have won out. Insistence on fair procedures governs all decision makers in public administration.”
Counsel for the plaintiff contends that there is no doubt but that An Garda Síochána come, in the instant context, within the ambit of decision makers in public administration, and, notwithstanding that the programme was not a statutory scheme, An Garda Siochána were administering a public scheme and, as such, were and are required to observe fair procedures. More specifically, counsel referred to the decision of Denham J. (as she then was) in People (DPP) v Gilligan [2006] 1 IR 107 where various submissions were made as to how a programme such as the Witness Security Programme should be properly operated. As was noted in her judgment:
“Submissions were made on behalf of the accused as to the necessity for rules and a structure for the management of a Witness Protection Programme. The establishment of a Witness Protection Programme is a matter for the Executive and/or the legislature. It falls to the courts to ensure fair procedures.”
19. Counsel submits that in LM v Commissioner of An Garda Siochana [2011] IEHC 14, it is expressly accepted by Hedigan J. that a duty of care is owed by An Garda Siochána to third parties. The judgment of Hedigan J. refers to Gray v Minister for Justice [2007] 2 IR 654. This case concerned the negligent disclosure of sensitive and confidential information by Gardaí to journalists. It was held that this could give rise to a cause of action for damages for negligence if the disclosure resulted in reasonably foreseeable loss, damage or injury to a person affected by the disclosure. It is a vexed question, both here and in England, as to whether the State owes a duty of care to the victims of crime, but counsel submits that this question has nothing to do with the present case. The question to be dealt with in the instant proceedings is whether the State owes a duty of care to persons whom it accepts into the Witness Security Programme. There is no doubt, counsel contends, but that the State must owe a duty of care to persons whom it takes into the programme. Any other suggestion would be a shocking one. It would involve, for instance, the court accepting, to use an argument by way of analogy, that if the State let somebody into the Witness Security Programme and then deliberately revealed their whereabouts the State would have no liability to that person. It was expressly accepted by Garda witnesses during the trial that they owed a duty of care to the plaintiff. While these witnesses were not talking in legal terms, they were talking in more general terms, it is still revealing, counsel contends on behalf of the plaintiff.
20. It was submitted on the plaintiff’s behalf that fairness was manifestly absent in the present case for the following reasons:
• The plaintiff was not given any or any ample time to consider what has become known as the “Entry Document” and to understand its relevance, although a member of An Garda Siochána accepted that he would have been entitled to such time;
• The plaintiff never received any legal advice in relation to the Entry Document;
• The plaintiff was introduced to a psychotherapist after his admission to the Programme. He was never offered psychological or psychiatric counselling, either in relation to his ongoing situation prior to the trial or, in particular, in relation to relocating abroad;
• To say that the plaintiff was unsuitable for relocation abroad or for the programme generally, without ever having offered him such counselling or had an assessment of his suitability for relocation abroad carried out, was in itself manifestly unfair;
• The Witness Security Programme Review Group did not conduct a meeting at which a decision was taken to purportedly exit the plaintiff from the programme (or, to be exact, no minutes exist of such a meeting and none of the defendants’ witnesses could state that there was such a meeting). A member of An Garda Siochána indicated that another member had conveyed the decision to him, but that it was unclear if the decision had been discussed it with anyone else. The plaintiff was frisked prior to being brought into the meeting at which he was presented with what has become known as the “Exit Document”;
• In answer to a question from the Court, a member of An Garda Siochána confirmed that the plaintiff was not specifically told that he didn’t have to sign the Exit Document if he wasn’t happy with it;
• Notwithstanding that the Exit Document is expressed to be not legally binding, the defendants clearly regard it as in some way constituting an acknowledgement by the plaintiff of the extent of his entitlement;
• It is abundantly clear that no one ever informed the plaintiff as to the reason for his being exited from the programme and asked to sign the Exit Document. Certainly An Garda Siochána never sat the plaintiff down and articulated matters in such terms;
• The plaintiff was never given the opportunity to respond to the allegations which were in essence being made about him, together with adverse conclusions being drawn, effectively, behind his back.
21. In relation to the plaintiff’s claim pursuant to the doctrine of legitimate expectation, counsel for the plaintiff referred to the dictum of Lord Denning M.R. in Amalgamated Property Co. v. Texas Bank [1982] Q.B. 84, at 122:
“When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”
Counsel for the plaintiff contends that the plaintiff entered the programme on the assumption that he would obtain certain benefits, and he was never disabused of this. It is submitted that it would be unfair or unjust to allow the defendants to go back on that assumption.
22. In Glencar v Mayo County Council [2002] 1 IR 84, Fennelly J. set out three propositions in relation to legitimate expectation (although qualified them insofar as he stated that they should not be regarded as definitive), which propositions he revisited in McGrath v Minister for Defence [2010] 1 IR 560. As he had explained in Glencar:
“In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person or group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously possible. Equally they are qualified by considerations of the public interest including the principle that freedom to exercise properly a statutory power is to be respected. However, the propositions I have endeavoured to formulate seem to me to be preconditions for the right to invoke the doctrine.”
23. Putting this passage in the context of this case, counsel submits it must have been a representation that was conveyed either directly or indirectly to an identifiable person, in this case to the plaintiff, in such a way that it formed part of a transaction definitively entered into or a relationship between that person and the public authority, with the plaintiff having acted on the good faith of the representation. The touchstone of the legitimate expectation doctrine is, ultimately, whether it would be unjust to allow the public authority to resile from what Fennelly J. has described as the representation. Counsel submits that whatever else is true about this case, it is certainly the case that, with the knowledge of the defendants, the plaintiff was proceeding happily at all times on an assumption that he would be relocated to a specified country. It was submitted by counsel that the Glencar propositions are readily satisfied in the instant case. Counsel argued that it is manifestly clear that the plaintiff had expectations as to the benefits he was going to receive from the programme. On his case, these were explicitly made to him. Even if the Court finds that they were not explicitly made, it is submitted that they must be implied, as the plaintiff articulated these expectations and was never disabused of them. As such, he had a false impression, at a minimum. It is contended that An Garda Síochána were aware that the plaintiff was of the belief that he could relocate to the specified country and that he would receive benefits associated with this. The plaintiff argued that it is clear that, at a minimum, on 19th December, 2002, a member of An Garda Siochána knew that the plaintiff had a preference for relocating to a specified country. These expectations led to the plaintiff entering into the programme. As far as he was concerned, the plaintiff had no reason to believe that the defendants would resile from their commitments.
24. During supplemental submissions to the Court, counsel on behalf of the plaintiff stressed that the crux of this case lies in the plaintiff’s legitimate expectation that he would be relocated to the specified country upon completion of the trial. It was argued that the defendants were actually aware that the plaintiff thought he would be relocated to the specified country and did nothing to disabuse him of this notion, even though they have given evidence to the fact that at all times they knew the plaintiff could never go to the specified country.
25. Counsel also referred the Court to the more recent Supreme Court decision of Lett v Wexford Borough Council [2012] 2 JIC 0301. The two most important points to take from that decision were that legitimate expectation can give rise to substantive rights and not just procedural rights, and secondly, that the breach of a legitimate expectation can result in damages. As O’Donnell J. held, at paragraph 23:
“23. I recognise the reasons for caution in this regard not least because this is an issue which would benefit from more extensive argument in a future case but it seems to me in principle at least, and indeed by analogy with the position in estoppel in private law, that the issue for the Court is that once a legitimate expectation or estoppel has been identified, it is necessary to make good the equity so found, and that in such circumstances again in principle, the Court can make an order, whether characterised as damages or restitution, in order to make good the breach identified.”
26. The Court has heard the plaintiff’s direct evidence that a straightforward representation was made to him at the meeting of 26th November, 2002, that he would be relocated, that the relocation would be to the specified country, that it would involve between €350,000.00 and €450,000.00 to start a new business and €150,000.00 to buy a new house. On the other hand, a member of An Garda Siochána gave evidence to the effect that no representations were made at that meeting. Evidence submitted to the Court includes a member of An Garda Siochána’s account of the meeting of 26th November, 2002, in which he wrote “[the plaintiff] is willing to relocate outside of the jurisdiction once the trial is complete but does not want to go to [a particular country].” It is thus clear that, on the written evidence before the court, there was at least a discussion at that meeting of relocation outside of the jurisdiction. In a later letter between two members of An Garda Siochána, it is stated that “in relation to a country of choice for future relocation, [the plaintiff] has indicated his preference for [a specified country], but I believe that further consultation may broaden his selection with the exception of [a particular country.]”
27. In relation to the plaintiff’s claim of misrepresentation, counsel relied on the decision of this Court (McCracken J) in Colthurst v La Touche Colthurst [2000] IEHC 14 which stated that, to succeed, a plaintiff must show:
“that there was a representation of a fact, that that representation was untrue and that the plaintiffs were induced to enter into the [agreement] by reason of the representation.”
The plaintiff’s case is based in part on the representations made to him, and that it is the making of such representations, knowing them to be false, or their being made recklessly, that has led to a claim for breach of contract, negligence, and breach of duty. It was submitted by counsel for the plaintiff that the representations were made in the knowledge that they were false, or alternatively, were reckless, in that a member of An Garda Siochána (and, as appropriate, his colleagues) did not care whether the representations were true or false. This is particularly so in relation to relocation to the specified country which, the Court has been told, would essentially not be possible for the plaintiff. As explained by a member of An Garda Siochána, other than in very limited circumstances where certain interests were affected, the specified country did not operate a programme whereby it was prepared to be a “host” country in terms of relocated witnesses.
28. Counsel for the plaintiff relied on this Court’s judgment in Carey v Independent Newspapers [2004] 3 I.R. 52, where this Court held, at page 72, that –
“Where a plaintiff has been induced to enter into a contract by a misrepresentation of fact on the part of a defendant or his agent, if the representation forms part of the concluded contract (whether the representation constitutes a condition or a warranty is immaterial in this context), the plaintiff may sue for breach of contract and loss of bargain, which entitles the plaintiff to be placed in the same position as he would have been in had the representation of fact been true and obligations consequent upon the representation been performed by the defendant. However, if the representation is not a term of the contract, there is, by definition, no breach of contract and the plaintiff’s only remedy will lie in tort: the plaintiff will have a remedy in deceit where the misrepresentation is fraudulently made, and there will be a remedy in negligent misrepresentation where the misrepresentation was made negligently in the context of a duty of care owed by the representor to the plaintiff.”
Counsel submits that the instant case is a contractual one in that a representation was made that subsequently became a term of the contract, and as such the basis of damages should be the measure of damages required to bring the plaintiff in to the position that he would have been in if the representation had been acted upon. Furthermore, while leaving somebody to labour under a misapprehension does not constitute a misrepresentation, there are exceptions which are analysed in the Carey decision at page 66:
“In principle, the Irish courts have accepted that silence or non-disclosure regarding facts or changes in circumstance not known to the other party can give rise to an obligation to disclose such facts and circumstances and such failure to disclose will constitute a misrepresentation. In Pat O’Donnell & Co. Ltd. v. Truck and Machinery Sales Ltd. [1998] 4 I.R. 191 at p. 202, O’Flaherty J. remarked:-
“In general, mere silence will not be held to constitute a misrepresentation. Thus, a person about to enter into a contract is not, in general, under a duty to disclose facts that are known to him but not to the other party. However, in certain circumstances, such a party may be under a duty to disclose such facts. A duty of disclosure will arise, for example, where silence would negate or distort a positive representation that has been made, or where material facts come to the notice of the party which falsify a representation previously made.””
As such, counsel submits, this case falls within both the contractual principle and the tort principle. A representation was made, in the simplest of possible terms, whether express or implied, that the plaintiff would be entitled to relocation. If the Court concluded that this formed part of an agreement between the plaintiff and the defendants then the plaintiff should be entitled to damages for breach of that misrepresentation, the measure of damages being the amount that it takes in order to fulfil the representation. In terms of the tort issue, there must have been a duty of care owed by the defendants to the plaintiff, and there must have been a negligent or fraudulent misrepresentation. Counsel for the plaintiff submits that both tenets of the test are met in the instant case. Counsel also referred to the case of Stafford v Mahony [1980] I.L.R.M. 53 where this Court (Doyle J.) summarised the relevant principles as to negligent misrepresentation as follows:
“…in order to establish the liability for negligent or non-fraudulent misrepresentation giving rise to an action there must first of all be a person conveying the information or the representation relied upon; secondly, that there must be a person to whom that information is intended to be conveyed or to whom it might reasonably be expected that the information would be conveyed; thirdly that the person must act upon such information or representation to his detriment so as to show that he is entitled to damages.”
It was submitted that the plaintiff comes squarely within such a definition.
29. The plaintiff has also brought a claim for misfeasance in public office against the defendants and/or of abuse of the said office in pursuing a course of conduct (by making representations to the plaintiff that he would be protected by means of being admitted into the defendants’ Programme) designed to induce him to provide certain information to An Garda Síochána and to give certain evidence at a criminal trial, in the knowledge that failure to follow through on those promises or to take any bona fide steps to honour same would expose the Plaintiff to grave risk to his physical and mental wellbeing, bodily integrity, and his ability to earn a livelihood.
30. The English case of Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 involved a claim that senior officials in the banking supervision department of the Bank of England had been guilty of misfeasance in public office in licensing a particular bank when they knew that it was unlawful to do so, and had shut their eyes to what happened thereafter. Lord Steyn set out the three ingredients of the tort of misfeasance in public office in the following terms:
“(1) The defendant must be a public officer:
It is the office in a relatively wide sense on which everything depends. Thus a local authority exercising private-law functions as a landlord is potentially capable of being sued: Jones v Swansea City Council [1990] 1 WLR 54. In the present case it is common ground that the Bank satisfies this requirement.
(2) The second requirement is the exercise of power as a public officer:
This ingredient is also not in issue. The conduct of the named senior officials of the Banking Supervision Department of the Bank was in the exercise of public functions. Moreover, it is not disputed that the principles of vicarious liability apply as much to misfeasance in public office as to other torts involving malice, knowledge or intention: Racz v Home Office [1994] 2 AC 45.
(3) The third requirement concerns the state of mind of the defendant:
The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintiff. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful.”
It was submitted by counsel for the plaintiff that the first two requirements are readily met, in that representations were made to the plaintiff by members of An Garda Síochána acting in that capacity. Even if the Court finds that representations were made only in part, or were not explicitly made, it is submitted that the plaintiff was clearly allowed operate under the assumption that he had various expectations when members of An Garda Síochána knew that such expectations were either unrealistic or, in fact, impossible.
31. The plaintiff has also claimed damages for breach of his constitutional rights to bodily integrity and the right to work / earn a livelihood. Counsel for the plaintiff argued that the plaintiff’s life is in danger. There was no necessity for the State to put him in a situation whereby that exposure continued. In fact, the purpose of putting the plaintiff into the Programme was to protect him. Counsel argued that by making representations in relation to the Programme, and by accepting the plaintiff into the Programme, but by then reneging on the representations made to him, the defendants have exposed him to personal risk; indeed, they have also, in his view, exposed his family to risk.
32. In relation to the plaintiff’s claim pursuant to his constitutional right to work, the plaintiff accepted that as part of his entry into the programme, he would, inter alia, be paid certain entitlements. As he was in the programme, he could not work. He accepted this on the basis that as part of his entry to the programme, he would be given a new name, social insurance number and the necessary paper work, such that he would be able to seek employment abroad having given evidence at the trial. He has not received any of these benefits. He still cannot use his PPS number. As such, he is still unable to work. The plaintiff has argued that the defendants are thereby depriving him of the right to work and/or to earn a livelihood other than on a casual basis.
33. The plaintiff asks the Court to note the evidence that there is still a real and ongoing risk to the plaintiff’s life and to note the commitments of the defendants in that regard, allowing the parties liberty to apply. In practical terms, this could be achieved by the Court expressly noting that, based on the evidence adduced by the defendant, it appears that the Commissioner of An Garda Síochána will comply with the following (based on the points set out in the Exit Document):
– An Garda Síochána will maintain a regular status update of the plaintiff’s threat assessment
– An Garda Síochána will notify any adverse intelligence to the plaintiff
– Any re-evaluation of the plaintiff’s security is to take place in that context.
The plaintiff also seeks damages. As to the quantum of such damages, it was submitted by counsel for the plaintiff that the amount paid to the plaintiff is not an appropriate sum. Rather, the sum of €600,000.00, being made up of the €350,000.00 + €250,000.00, is sought, as, on the plaintiff’s evidence, it was represented by a member of An Garda Siochána as being the appropriate sums for, respectively, starting a new business and purchasing a house.
Submissions on behalf of the defendants
34. Counsel for the defendants, Mr. Costelloe, submits that there are many factual disputes in this case. For instance, some of the issues of fact which require to be determined by the Court are as follows: whether the Gardai made any promises of specific benefits to the plaintiff; whether the entry protocol was a ruse concocted by the Gardai for the purpose of misleading the plaintiff to give evidence in the trial before the Special Criminal Court; whether the plaintiff sought legal advice prior to the entry and exit protocols; whether and how the plaintiff signed the entry and exit protocols; whether the Gardai instructed the plaintiff to pass himself off as a Garda when dealing with others. In respect of each of these central issues of fact, the defendants argue that the position of the plaintiff is wholly uncorroborated and the plaintiff’s version of events is denied on the defendants’ behalf in evidence.
35. Counsel for the defendants further submitted that the plaintiff is merely seeking to engage in some form of judicial review of a decision that took place over 10 years ago without having so much as pleaded any entitlement to same in the papers. It was submitted that this is an abuse of process and should not be permitted.
36. Mr. Costelloe, on behalf of the defendants, submitted to the Court that there has been a shift in the position of the plaintiff between the commencement of the proceedings and the final submissions to the Court. The plaintiff originally pleaded, in both his statement of claim and his direct evidence to the Court, that he was explicitly promised certain matters by the defendants, in particular by two members of An Garda Siochána. These alleged promises included a new house, a new social insurance number, the necessary work documentation, an income, or the means to get an income, a new name, a car, and that he would be put into the care of the specified country’s authorities while he was there and that if he had to travel back and forth he would be accommodated in so doing. However, counsel contends that the case has changed considerably and what is now being suggested is that these promises were, in fact, only implied, a markedly different proposition to how the case commenced.
37. Furthermore, the defendants do not accept the submission of the plaintiff that a duty of care was owed to the plaintiff merely by virtue of the fact that he was placed in the Witness Security Programme.
38. Whilst one might argue that the State at large owes a duty of care to ensure the safety of witnesses who testify in criminal proceedings, this has never been determined in this jurisdiction. However, the defendants argue that should such a duty exist it is met by putting in place appropriate security measures when necessary, something that the defendants duly did in the present case. The existence of a legally binding duty is absolutely not accepted by the defendants.
39. Insofar as counsel for the plaintiff cites the passage from the judgment of Denham J in DPP v. Gilligan [2006] 1 IR 107 in support of the contention that it falls to the courts to ensure that fair procedures are observed in relation to the operation of the WSP, the courts referred to are the criminal courts. As such, it was argued by the defendants that the issues of fairness under consideration in Gilligan concerned the fairness of the criminal trial and whether the manner in which the WSP was operated could result in unfairness to the accused, not to the witness. It was further contended that the many references in Gilligan to the necessity to ensure the existence of fair procedures derive from the operation of Article 38 of the Constitution and patently have no application to the position of a participating witness.
40. The defendants argue that the decision to exit the plaintiff from the WSP was not one that determined any rights he enjoyed. The State acknowledged and continues to acknowledge an ongoing obligation to protect his person. Moreover, the decision was not one that can be considered to have been made in the context of a decision-making process or otherwise be amenable to review any more than any other operational decision in the course of a Garda investigation might be.
41. In relation to the alleged obligation on the defendants to furnish the plaintiff with legal assistance, counsel for the defendants submits that at no stage prior to signing the Entry Document did the plaintiff request a solicitor. The plaintiff gave evidence during the proceedings that he attempted to get legal advice from a solicitor but that nobody would take his case. More fundamentally, the defendants submitted, the Entry and Exit Protocols are explicitly described as not being legally binding, and thus it is difficult to understand how legal advice could impact on a decision whether or not to engage in a non-binding arrangement. Moreover, the defendants argue that the law is reasonably clear as to when there exists a right to legal advice i.e. in circumstances where a suspect is being interviewed for a certain criminal offence. The suggestion that such a right be extended (on an actionable basis) to circumstances relating to the interaction with a witness is a radical one.
42. In relation to the claim of legitimate expectation, the plaintiff contends that he was promised one thing verbally whilst accepting that he signed up for something entirely different in written form. Counsel for the defendants argues that the most the plaintiff can contend for is an illegitimate or unreasonable expectation that might well have been passionately held. Reference in this regard was made to the decision of the Supreme Court in Minister for Justice .v Johnston [2008] IESC 11, in which observations made by Macken J. were considered particularly apposite to the circumstances of the present case. In that case, the respondent to a European Arrest Warrant claimed that he held a legitimate expectation that he would not be prosecuted for the offence for which his surrender was sought. Macken J. quoted with approval the following passage from the decision of Barr J. in Canon v Minister for the Marine [1991] 1 I.R. 82:
“The concept of legitimate expectation, being derived from an equitable doctrine, must be reviewed in the light of equitable principles. The test is whether in all the circumstances it would be unfair or unjust to allow a party to resile from a position created or adopted by him which at that time gave rise to a legitimate expectation in the mind of another that that situation would continue and might be acted upon by him to his advantage.”
43. In response to allegations made on behalf of the plaintiff of misfeasance and misrepresentation on the part of the defendants, the defendants contend that the overwhelming evidence is that no such representations were ever made to the plaintiff. He was told, in the content of the Entry Document, what he would receive. Subsequently, because he could not abide by the terms of that document and thereby stay in the WSP, the terms of what he was to receive were altered and this is reflected in the terms of the Exit Document.
44. It was submitted on the defendants’ behalf that the Gardai have done all that they could do to vindicate the plaintiff’s right to life and personal safety. The plaintiff’s principle complaint is that he was not relocated to another jurisdiction. The evidence in the present case, counsel contends, showed that the plaintiff was manifestly unsuitable for relocation of the sort he expected, as the State owes an obvious duty of candour to any cooperating state in relation to the suitability of any relocated witness and the plaintiff proved himself to be incapable of maintaining ‘cover’ and seemingly intent on drawing attention to himself.
45. Counsel for the defendants concluded by stating that the evidence clearly established that relocation as a protected witness to the specified country was simply never an option. For reasons that were dealt with in some detail in the evidence, the plaintiff was deemed to be unsuitable for relocation as a protected witness, due to the many instances of bizarre behaviour and occasions when the plaintiff blew his cover. Moreover, the fact that the plaintiff was not informed that a particular country was not an option for relocation is of somewhat academic interest when it transpired that he was not suitable at all for relocation. Furthermore, there is evidence to the effect that no other country would ever accept the plaintiff as a relocated witness given his admitted deliberate actions in ensuring that those who were previously engaged with him as witness protection officers were ‘outed’ in the media. The effect of his conduct has been to render him wholly unsuitable to be relocated as a protected witness. If the threat level were to change from ‘low,’ Gardai could assist him with relocation, but not on an anonymised basis as a protected witness.
46. While it is accepted between the parties that the Entry and Exit Protocols are not legally binding as they explicitly express themselves in such terms, it is contended on the defendants’ behalf that this is not to say that they are to be regarded as in any sense evidentially neutral. They represent the understanding of the respective parties and they reflect an explicit record of what was promised at the relevant times. This, it was argued, is of considerable significance in the context of the case made by the plaintiff in relation to misrepresentation and legitimate expectation.
47. In relation to the plaintiff’s expulsion from the programme, counsel for the defendant brought the Court’s attention to the so-called ‘Entry Document’ which he signed. All parties agree that this document was not legally binding, however, it is useful in that in its preamble, it sets out a number of matters, for example:
“Any failure by you to abide by the conditions set out in this protocol may render your participation in the Witness Security Programme void and An Garda Siochána would be entitled to withdraw and/or review any measures or arrangement agreed with you.”
Counsel submits the plaintiff failed to comply with the expectations as set out in the Entry Document.
48. In relation to the reliefs sought by the plaintiff in these proceedings, specifically damages, it was submitted on the defendants’ behalf that the money being sought by the plaintiff in order to rebuild his life abroad completely ignores the fact that he was paid a large sum of money to aid him in relocating outside the jurisdiction. Although he declined to do so for a considerable period of time, and rather appears to have lived openly in Ireland after the trial, he did, on his own account, ultimately re-locate to another country. That effort was abbreviated due to some difficulty he encountered with the person he was working for (unrelated to the matters before the Court). He then, according to his evidence, moved with his family to a different country where he stayed for almost three years. The plaintiff told the Court that he returned from that country not because of his inability to work but because he could not afford to pay for two households – one here in Ireland and one in the other country. It was contended on the defendants’ behalf that there is nothing precluding the plaintiff from now relocating out of the jurisdiction where he can again obtain work or work within the jurisdiction. The defendants are in no way inhibiting him from doing this and as such a breach of his constitutional right to work does not arise.
49. Furthermore, the plaintiff also signed the so-called “Exit Document,” albeit he alleges that he signed it under duress. He was told by the defendants that he was not going to be relocated and that he would get a sum of money in two tranches over two years. Counsel for the defendants points to the fact that he raised no objections in that intervening year regarding any grievances he felt he had with signing the document or the deal he got out of it. Counsel submits that during the intervening years since the plaintiff had accepted the compensation from An Garda Siochána he had no difficulty relocating himself to another jurisdiction for three years. Counsel also queries the damages that the plaintiff is now seeking. Just because the plaintiff could not go to the specified country does not mean that he has a loss that is quantifiable so as to lead to an award of damages.
50. It was further submitted on the defendants’ behalf that it is noteworthy that there is not one reference anywhere, in any material disclosed, nor in any of the correspondence available to the Court between the parties or in any of the pleadings, to the figure of €600,000.00. This figure is flatly refuted by the defendants, specifically the two members of An Garda Siochána who were responsible for negotiating the terms of the Exit Document.
Conclusion
51. I am satisfied to find, on the balance of probabilities, that the plaintiff cooperated with the Garda authorities in their investigation of the allegation of extortion as against the two individuals, members of the I.R.A, provided a statement to be used in evidence against them, attended at an identity parade where he identified both of them, agreed to give evidence on behalf of the Director of Public Prosecutions against them and that he was accepted into the Witness Security Programme. I am satisfied, on the balance of probabilities, that there was no meaningful assessment carried out by the Garda authorities in accordance with the provisions of the Witness Security Programme, and that such assessment as there was, was only carried out after the plaintiff’s admission. I am further satisfied that it was a significant feature in the fight against organised crime and subversive organisations that the plaintiff made a statement, attended the ID parade, and agreed to give evidence at the trial of the action of the two accused men. I am satisfied that the plaintiff was unique at the time of his admission into the Witness Security Programme by reason of the fact that he was an ordinary citizen and a member of society with no previous criminal convictions. I am satisfied that there was unfortunately a very serious breakdown in the inter-personal relationship as between certain members of An Garda Siochána, and the plaintiff, which is fuelled by allegations and counter allegations and that this in turn led to tension as between the Garda investigation team and the Witness Security Programme team, which culminated in the plaintiff advising a member of An Garda Siochána that he would not give evidence at the trial, but subsequently agreeing with another member of An Garda Siochána that he would give evidence.
52. I am satisfied, on the balance of probabilities, that this inter-personal breakdown between the plaintiff and the Witness Security Programme team came about as a result of the plaintiff’s failure to comprehend that, in simple terms, he had to have regard to the terms of the entry protocol and greatly change his lifestyle and lie low while remaining within Ireland, pending the criminal trial. The plaintiff’s position was clearly set out in the entry document as signed and he, as the person maintaining these proceedings, failed to comply with the terms in accordance with the understanding as set out in the document, and this is the position notwithstanding that the Entry Document was not intended to create legal relations.
53. I am not satisfied, on the balance of probabilities, that the defendants made a statement or maintained a position amounting to a promise or representation, express or implied, that following the trial the plaintiff would be going to a specified country with all the necessary paperwork and a very substantial sum of money running to several hundred thousand euro. Any conversations that took place before the trial could not be construed on any reasonable interpretation as being a basis for a transaction definitively entered into and could not, in the view of this Court, on the balance of probabilities, be found to be such that would constitute a representation, express or implied, to be relied on. I do not accept that the plaintiff was allowed operate under any assumption as a result of conversations he had with members of An Garda Siochána. The Entry Document adequately summarises the position and it is clear that there were ongoing discussions about a specified country, not going to a particular country, and the possibility of other countries. Insofar as the plaintiff alleges that he understood and was never disabused of the notion of going to a specified country, he never had a representation that he was going, either express or implied, and the Entry Document and continuing discussions could not have given rise to any form of a representation that he was going.
54. I do not accept that the entry protocol was a ruse concocted by An Garda Siochána for the purpose of misleading the plaintiff as regards the trial before the Special Criminal Court and I am satisfied on the evidence that if the plaintiff wanted legal advice prior to signing the entry and exit protocols, he was a capable adult male and could have indicated, which I do not accept that he did, that he wished to obtain legal advice and he could have declined to sign both the entry and exit protocols until he obtained independent legal advice.
55. I find on the evidence, on the balance of probabilities, that the plaintiff divulged details of his situation to persons contrary to the agreed provisions of the entry protocol, that the plaintiff made contact with members of An Garda Siochána other than the members of the Witness Security Programme, that the plaintiff gave interviews and passed information to the media, and further, that it was necessary for the plaintiff to be spoken to by members of An Garda Siochána about a number of incidents, that the plaintiff failed to pay back a credit card bill which he agreed to do, and further that the plaintiff represented himself to members of the public as being a Garda. I do not accept that any member of An Garda Siochána told the plaintiff to say he was a member of An Garda Siochána.
56. The plaintiff was introduced to a psychotherapist, and it is accepted that he was not offered or provided with psychological or psychiatric counselling in relation to his ongoing situation prior to the trial. By the time of the trial and having regard to the events which followed, it is quite clear to this Court that the plaintiff simply was totally unsuitable for relocation to any host country and the fact that he was not given any assistance other than by the psychotherapist, does not in itself render the procedure that was adopted unfair as claimed on the plaintiff’s behalf.
57. The decision as regards the plaintiff’s exit from the Witness Security Programme was on the evidence on the balance of probabilities taken by a member of An Garda Siochána and that decision was conveyed to the relevant member of An Garda Siochána. The final meeting in respect of the plaintiff’s exit did come about in unusual circumstances and the frisking of the plaintiff prior to entry to the final meeting serves to demonstrate the complete breakdown in the relationship as between the plaintiff and certain members of An Garda Siochána. The events surrounding the Exit Document are clouded by the plaintiff’s allegation that he signed the document in a different manner to that as presented to the Court and this Court is of the view that, on the balance of probabilities, the plaintiff’s recollection in this regard is not correct and it was always open to him to walk away from signing the Exit Document on the day in question and to obtain legal advice and this Court does not accept that he was placed under duress although quite clearly there was a significant amount of money on offer to him in two tranches and he agreed to the proposition as put forward at that point in time. In many ways, most tellingly, is the fact that the plaintiff had a year to consider his position and obtain legal advice or raise many of the contentions which he has raised in these proceedings after accepting the first instalment of money which he did not do and then proceeded to accept the second instalment without demur. His explanation that he had to accept the money because of his financial standing does not find favour with this Court having regard to the case he now makes out. Insofar as an allegation is raised that the plaintiff was never given the opportunity to respond to the allegations which were in essence being made about him, together with adverse conclusions being drawn allegedly behind his back, there is no dispute by the plaintiff as regards a variety of the incidents that occurred. It is only necessary in this regard to refer to the content of the entry agreement as signed by the plaintiff which set out a reasoned description of the understanding that lay ahead for the plaintiff on his entry into the scheme and which simply does not correspond to the plaintiff’s ongoing behaviour.
58. Mr. McCullough, on behalf of the plaintiff, contends that the defendants owe the plaintiff a duty of care to act fairly as decision makers within the context of public administration notwithstanding that the Witness Security Programme is a non-statutory scheme. Mr. McCullough relied specifically on the decision of the Supreme Court (Denham J.) in DPP v. Gilligan [2006] 1 IR 107 wherein it was stated that it was a matter for the Courts to ensure fair procedures in situations involving the Witness Security Programme but, as contended for by counsel for the defendants, that decision was made in the context of the fairness of a criminal trial and not civil proceedings such as are presently before this Court. It is contended on the plaintiff’s behalf that the defendants have conceded that they owed a duty of care to the plaintiff but this is categorically rejected on the defendants’ behalf. The issue of a duty of care arose in the context of fairness in the decision making process in the context of public administration.
59. The decisions of the High Court in L.M. v. The Commissioner of An Garda Síochána & others [2012] 1 ILRM 132 and Belinda Lockwood v. Ireland and the Attorney General & others [2011] 1 IR 374 are referred to by Mr. Costello on the defendants’ behalf which judgments in the High Court respectively held that no duty of care existed to a victim of a crime by a member of An Garda Síochána in the investigation and prosecution of a crime. Both of these decisions have recently been revisited and are the subject matter of a judgment of the Supreme Court as delivered on the 3rd November, 2015, under Supreme Court reference 143/2011. In essence, the Court (O’Donnell J.) carried out a very extensive review on the very issue of the potential of a duty of care being owed by members of An Garda Síochána to victims of crime arising from the investigation and prosecution or non-prosecution of the alleged perpetrators of a crime and the Court took the view that it would be inappropriate to address important issues of law that arise in the context of the limited information and material that was placed before the High Court in both cases which were dealing with issues that arose by way of the trial of a preliminary issue.
60. The position in relation to an alleged duty of care to act fairly in the particular instance has to take into account that the Witness Security Programme is a non-statutory scheme. What is involved here is a Garda operational decision in the course of a Garda investigation arising from a complaint made by the plaintiff which resulted in the successful prosecution and conviction of two accused persons. Clearly the negligent disclosure of sensitive or confidential information by Gardai to journalists may give rise to a cause of action for damages for negligence if the disclosure resulted in reasonably foreseeable loss, damage or injury to a person affected by the disclosure. Likewise, if a person acted mala fides or with a view to gain in a case involving the disclosure of the identity of a person within the Witness Security Programme then it may be that the person affected by the disclosure would be entitled to damages for reasonably foreseeable loss, damage or injury caused by the disclosure. As Mr. McCullough submitted to the Court it is a vexed question both in this jurisdiction and in England as to whether the State owes a duty of care to victims of crime but, as submitted by Mr. McCullough, this question has nothing to do with the present case.
61. Taking an overview of the evidence and the findings as set out herein, I do not accept that the plaintiff was dealt with unfairly.
62. Insofar as the plaintiff raises the doctrine of legitimate expectation, I am satisfied to come to a conclusion that the expectation of the plaintiff, in general terms, was that he would be given a new identity and paid a sufficient amount of money to enable him to carry on a life and work outside of Ireland, subject to the understanding as set out in the Entry Document, but this expectation is completely undermined by the plaintiff’s own behaviour and, in this regard, I accept that the plaintiff could not be relocated to any destination because, on the full facts being disclosed by An Garda Siochána to the operatives of a similar receiving scheme in a host country, they would not have accepted the plaintiff because he would run the risk of undermining and exposing their system, and quite clearly the potential risk that at any stage the plaintiff might behave in a way similar to his propensity in this regard as demonstrated in Ireland would, as a probability, have resulted in his relocation being terminated in a foreign host country and he would, as a probability, have been returned to Ireland.
63. In this instance, the discussions concerning being removed to a host country with a new identity and with sufficient financial resources were always in general terms and not on any specific basis. Any discussion was always on the premise that the plaintiff was going to be a suitable candidate and as already indicated this Court is of the view that he was totally unsuitable for relocation to a host country.
64. I am satisfied in any event, on the evidence, that there was no specific or agreed terms arrived at with the plaintiff prior to the giving of his evidence at the trial and in the particular circumstances this would be a clear case where it would not be unjust to allow An Garda Siochána to resile in general terms from what was proposed in general terms as regards the plaintiff being relocated abroad with a new identity and sufficient financial resources. The plaintiff was not proceeding happily at all times on an assumption that he would be relocated to a specified country. He knew the basis of the understanding as regards the conditions of his entry and on reading the entry conditions it is quite clear that he was in complete disregard of the conditions that were expected of him. Insofar as it is alleged that the plaintiff had no reason to believe that the defendants would resile from their commitments, insofar as any commitments arise, the plaintiff also had commitments from which he resiled. In respect of the plaintiff being relocated, I do accept that he was not actually disabused of the notion that he at least had a chance of going to the specified country, but the reality of the situation was that neither was it ever confirmed to him on the general thrust of the evidence and it had to be clear to the plaintiff that if relocation was to take place it may have been to the specified country or to an alternative destination apart from one destination which the plaintiff specifically asked not to be sent to. I do not find that the plaintiff was entitled to a legitimate expectation that he would be relocated to the specified country with all the necessary documentation, with a new identity, and with sufficient financial resources in the manner that he alleges were indicated to him, and that his actions and behaviour were in some way irrelevant.
65. I further take the view that there is no basis for a claim in misrepresentation because there was no actual representation of a fact or a situation where any representation was untrue or that the plaintiff was induced to enter into any arrangements by reason of a representation. As previously indicated, there was an entry into the Witness Security Programme, there was an understanding set out which the plaintiff should have adhered to, there was a general discussion which did indicate that the plaintiff may well be relocated to a host country, but any aspect of the discussion on the defendants’ part was not false, or made recklessly, or contained the necessary ingredients for the plaintiff to set up a claim for alleged breach of contract or negligence or breach of duty or of a duty of care. I do not accept that any representation was made by any member of An Garda Siochána that was false or reckless or was made by a member of An Garda Siochána not caring whether the representations were true or false and I do not find that any member of An Garda Siochána acted with mala fides.
66. I do not find that the plaintiff was induced to enter into any contract by a misrepresentation of fact on the part of the defendants or any of their servants or agents. Further, I do not find that there was any concluded contract between the plaintiff and the first named defendant or any of her servants or agents. I do not find that there was such a silence on the part of the defendants, their servants or agents, or that this alleged silence can be held to constitute some form of a misrepresentation.
67. It follows that I do not consider that there is any basis for a claim for misfeasance in public office against the defendants and/or abuse of that office or that they, or either of their servants or agents, pursued a course of conduct by making representations to the plaintiff that he would be protected by means of being admitted to the Witness Security Programme. It has to be borne in mind that the plaintiff himself had made the complaint to An Garda Siochána and had provided a statement to An Garda Siochána before he was approached with regard to the Witness Security Programme and he, at all material times, knew from the entry protocol what was expected of him and he failed to comply with those expectations.
64. As regards the aspect of the ongoing threat to the life of the plaintiff, I note in particular the views of a member of An Garda Siochána that it would be irresponsible of him to say other than that the threat was still there. He believes that it is not an imaginary threat. He takes the view that the IRA view people who collaborate with law enforcement agencies as informers who are to be executed. I accept that leading into the trial and following the trial and for a number of years thereafter, on the balance of probabilities, the threat to the plaintiff’s life was probably high but with the passage of time and having regard to the plaintiff’s attitude to an open lifestyle both before and after the trial I take the view that, in conjunction with the evidence of a member of An Garda Siochána, the threat may potentially always be there, and I am satisfied on the evidence adduced that An Garda Siochána will maintain a regular status update of the plaintiff’s threat assessment and will notify the plaintiff of any adverse intelligence which would threaten him in any regard and furthermore, that if necessary, a re-evaluation of the plaintiff’s security will take place in that context and all of this is against a background where even though there have been many references throughout the evidence to the plaintiff exiting the Witness Security Programme, in fact a person such as the plaintiff never exits entirely from the programme and is always subject to An Garda Siochána maintaining a regular status update as regards the plaintiff’s threat assessment. The state defendants acknowledge an ongoing obligation to protect the plaintiff and, in my view, there is nothing unfair or unjust in the circumstances pertaining. As such, I find no basis for the proposition that the plaintiff’s constitutional right to bodily integrity has been infringed. It follows, therefore, that there is no reasonable basis why the plaintiff could not continue to use his PPS number and collect social welfare, search for a job or start another business, whatever the case may be.
65. Mr. Costello contends that there exist very substantial grounds for the underlying principal that these proceedings are not justiciable on the grounds of public policy and that there are compelling reasons why the operation of the Witness Security Programme could not be subject to a broad review as contended for on the plaintiff’s behalf. I do not consider that it is necessary in the light of my findings of fact to decide this issue on this occasion.
66. Accordingly, having regard to the reasons as outlined herein I do not find favour with the plaintiff in the case he makes out against the defendants and I will hear the submissions of counsel as to the form of the order to be drawn up.