Statutory Issues
Cases
Walsh v Kilkenny County Council
[1978] ILRM 1 Gannon J.
This is a claim for £2,480, the agreed value of the loss sustained by the plaintiff upon the occasion of the death by poisoning of eight milking cows on his property, on the 11th November 1975. These animals were from a herd of 130 cows that had free-run grazing upon a substantial area of pasture which was bounded at a short stretch by a cemetery in which two yew trees were growing. The cattle had gained access to the yew trees by passing through a gap in the boundary wall between the cemetery and the plaintiff’s pasture and by going across some 70 to 77 yards of the cemetery.
The plaintiff said in evidence that he had this farm at Danesfort County Kilkenny, which adjoins the old graveyard or burial ground, for 27 years. He said he never knew that there were yew trees in the cemetery. The maintenance of the wall which separated the cemetery from his land was always understood by him to be the responsibility of the County Council. At one portion there was a small gap in the wall for some years, but the wall at this point was sufficient to prevent cattle from going through. About twelve months prior to the occasion giving rise to the claim he had observed that in a storm a portion of the wall had split along its length. The effect was to cause a portion of the split wall to spill in on his land while the corresponding portion innermost to the cemetery remained standing. He expressed the opinion that ivy growing along the wall kept the damaged portion standing. It was this portion which collapsed and left the gap through which his cows had gone into the cemetery on the morning of the 11th November 1975. There was no evidence of any particular incident which might have caused this damaged portion of the wall to collapse. The plaintiff said that during the twelve month period prior to that morning he did not think his cows would go into the cemetery or that it was necessary to tell the County Council of the condition of the wall or that it would be necessary to take any steps to prevent his cows going into the cemetery. He said he knew that yew was poisonous to cattle and that cattle were fond of eating ivy. He thought that if there was ivy near the yew the cattle while eating ivy might also eat yew. The cows at that time were left out for grazing day and night but were fed at the yard when milked morning and evening, and the plaintiff considered that they had plentiful grazing pasture at that time.
On behalf of the defendants, the County Council of Kilkenny, evidence was given by Peter Doran who stated that the cemetery was maintained by the County Council and the damaged wall has since been repaired by the County Council. He produced a plan of the location. He stated that the cemetery was inspected and cleaned up annually, the grass was usually cut in the summer months, probably in July, and any repairs required were done. He said that if the County Council had known of the split in the wall they would have repaired it, and if it had appeared to be in danger of collapse they would have repaired it immediately. It was his evidence that the portion of wall of which the plaintiff complains on inspection had appeared to be all right on the defendants’ side.
The following facts which appear to me to be material were proved to my satisfaction in evidence. The defendants accepted the obligation to, and did, maintain the wall between the cemetery and the plaintiff’s pasture in a state of repair sufficient to prevent entry by cattle from the pasture into the cemetery. For a period of about twelve months prior to the 10th November 1975, a portion of this wall was in a damaged state to the knowledge of the plaintiff but unknown to the defendants. During this period the plaintiff did not think it necessary to inform the defendants of the condition of the wall, nor did he think his cows would break into the cemetery, nor did he think it necessary to take steps to prevent his cows getting into the cemetery. During this period the damaged portion of wall was effective to prevent the plaintiff’s cattle getting into the cemetery. Between the 10th and 11th November 1975 the plaintiff’s cows did get into the cemetery through a gap in the wall corresponding to the damaged portion which was then found to be colJapsed. The plaintiff’s cattle were poisoned by eating yew in the cemetery. How or why the damaged portion of the wall ceased on the night of the 10th November 1975 to continue to be effective to prevent the plaintiff’s cattle getting into the cemetery has not been proved. Other than to suggest that that portion of the wall collapsed without some force or activating agency the plaintiff, on whom the burden of proof lies, gives no answer to this query. On the evidence I have heard I think the inference most consistent with probabilities is that some of the plaintiff’s cattle commenced eating ivy growing along the damaged portion of the wall and in the course thereof caused that portion of the wall to collapse. No evidence was given to establish whether or not the cemetery is a burial ground attached to or contiguous to a church, chapel or place of worship. The plan and photographs admitted in evidence seem to indicate that the cemetery was a burial ground which had been attached to and contiguous to a church, chapel or place or worship.
I
On these facts the plaintiff seeks to establish liability in the defendants for the amount of his loss on the basis either of breach of the statutory duty imposed on the County Council as the Health Authority by section 185 of the Public Health (Ireland) Act 1878, or alternatively under the statutory rules made pursuant to section I81 of that
i
Act on the 6th July 1988, or in the further alternative on the basis of negligence at
common law.
In relation to the statutory duty the plaintiff contends that under rule 1 of the
Regulations for Burial Grounds dated 6th July 1888 made pursuant to section 181 of the
Public Health (Ireland) Act 1878 the defendants were obliged to maintain the cemetery ‘sufficiently fenced’. Rule 1 of the 1888 regulations is as follows: “Every burial ground shall be kept sufficiently fenced, and, if necessary, shall be underdrained to such a depth as will prevent water remaining in any grave or vault.” The plaintiff contends that the defendants failed to maintain the cemetery “sufficiently fenced” and that the plaintiff is a person for whose benefit the duty was created by statute and who has suffered damage from the failure of the defendants to perform this duty. It was submitted that, in the absence of any statutory penalty prescribed for failure to perform the duty, the remedy in damages lies for any person damnified by the breach of statutory duty. The defendants in answer, on this aspect, submit that the injury alleged to have been sustained by the plaintiff is not attributable to any breach of this statutory duty, and further that the plaintiff is not a person within the ambit of the purposes of the statutory duty imposed upon the county council by the Public Health (Ireland) Act 1878.
Not every failure to comply with a statutory duty from which damage ensues entitles a person damnified to recover compensation from the party in breach of the statute in a claim for damages founded on that ground alone. As stated by Maughan LJ in Monk v Warbey [1935] 1 KB 75 at page 85:
“The court has to make up its mind whether the harm sought to be remedied by the statute is one of the kind the statute is intended to prevent; in other words it is not sufficient to say that harm has been caused to a person and to assert that the harm is due to a breach of the statute which has resulted in the injury.”
Furthermore the fact that the statute does not exact a penalty from the defaulting party is not the only factor which signifies that damages may be recovered ina civil action founded on the breach of the statutory duty. In Philips v Britannia Hygienic Laundry Co
Ltd [1923] 2 KB 832 at page 840 Atkin LJ says:
“Whena statute imposes a duty of commission or omission upon an individual, the question whether a person aggrieved by a breach of the duty has a right of action depends on the intention of the statute. Was it intended that duty should be owed to the individual aggrieved as well as to the State, or is it a public duty only? That depends upon the construction of the statute as a whole, and the circumstances in which it was made, and to which it relates. One of the matters to be taken into consideration is this: does the statute on the face of it contain a reference to a remedy for the breach of it? If so, it would, prima facie, be the only remedy, but that is not conclusive. One must still look to the intention of the legislature to be derived from the words used, and one may come to the conclusion that, although the statute creates a duty and imposesa penalty for the breach of that duty, it may still intend that the duty should be owed to
individuals.”
Romer LJ in Solomons v Gertzenstein Ltd [1954] 2 QB 243 at 266 observed:
“No universal rule can be formulated which will answer the question whether in any given case an individual can sue in respect of a breach of statutory duty. “The only rule” said Lord Simonds in Cutler’s case (Cutler v Wandsworth Stadium [1949] All ER 544 at
547) ‘which in all circumstances is valid is that the answer must depend ona consideration of the whole Act and the circumstances, including the pre-existing law in
which it was enacted.”‘
The statute under consideration in the present case is the Public Health (Ireland) Act 1878 and in particular part III thereof of which is a re-enactment with amendments of most of the Burial Grounds (Ireland) Act 1856 and its amending Act of 1860 both of which were repealed. Sections 58 and 59 of the Cemeteries Clauses Act 1847, which relate to the protection of cemeteries, were expressly incorporated by section 193 of the Public Health (Ireland) Act 1878. By section 234 of the Act it is provided, inter alia, that the expenses incurred by a Burial Board established by the Act shall be charged on and paid out of the poor rates in cases of rural districts, and in cases of urban districtsa rate to be levied specially for the purpose. Taking the provisions of this Act asa whole and in particular the provisions of part III and the other sections related to that partI am in no doubt that this is an enactment for the benefit only of the public at large, and that the duties and obligations therein are imposed for the benefit only of the public at large, and not for the benefit of any class of persons nor of any individuals. The several sections with parts VI and VII of the Act make provision for claims by the public authority upon whom the statutory duties are imposed and by persons who may be aggrieved by the performance or the breach of any of the duties imposed by the Act. None of these sections is capable of being construed as constituting the plaintiff in this case asa person for whose benefit the statutory obligations alleged w[ere] imposed on the defendants. Having regard to sections 161 to 181 inclusive of part III of the Act it would appear that the declared and primary purposes of the duties imposed on the defendants are the protection of public health, the maintenance of public decency, and the prevention of violation of the respect due to the remains of deceased persons. The provisions of section 171 and of section 58 of the Cemeteries Clauses Act 1847 incorporated by section 193, which confer powers on the defendants to punish troap inconsistent with the imposition of any duty on the defendants to trespllNIOl’lt to fence imposed by the Regulations of the 6th July, 1888 made pursuant to seems to be a duty to protect the property vested in the burial board from other interference by trespassers. The plaintiff, who is admittedly a trcspa claim that he is a person for whose benefit this duty is laid upon the defen 185 must be read in conjunction with sections 186 and 187, and on the facta these sections have no application and do not assist the plaintiff …
Long v Saorstat & Continental Steamship Co
93 ILTR 137 Superme Court
Maguire CJ: The defendants in this action move the court to set aside the jury and the order and judgment of the President of the High Court in favour of the Plaintiff for the sum of £5,261 and costs and to enter judgment for them with costs ore for such order as to the court may seem meet.
.On April 18th 1951, the plaintiff was employed as a stevedore in the unloading of a cargo from the SS City of Cork, the property of the defendants, then berthed at the North Wall extension in the port of Dublin. A gangway connecting the ship with the shore was free at the shore end, but was held in position by ropes which were lashed to rings on the coaming surrounding a hatch on board the ship which was open. At the time of the accident out of which this action arises the fall of the tide brought the deck below the level of the quay. As a result, the gangway was at an angle with its free end in the air. The plaintiff was standing near the end which rested upon the deck. He was engaged in superintending the unloading of long iron. Two men who were talking to the plaintiff turned and proceeded up the gangway. As they approached the shore the gangway tipped upwards from the deck. The lashing was so arranged that this could happen. The plaintiff had turned to face the open hold. In this position he was struck by the upward swinging gangway. He was thrown into the hold, suffering serious injuries.
He brought this action claiming damages for negligence and breach of statutory duty. In their defence, the defendants deny this and plead contributory negligence on the part of the plaintiff …
The jury … found that the defendants were guilty of a breach of statutory duty in failing to comply with Statutory Rules and Orders 1928, No 69. The relevant part of that order is art 9, which provide:
“If a ship is lying at a wharf or quay for the purpose of loading or unloading or coaling, there shall be safe means of access for the use of persons employed at such times as they have to pass from the ship to the shore or from the shore to the ship as follows:
⦁ where a gangway is reasonably practicable, a gangway not less than twenty-two inches wide, properly secured, and fenced throughout on each side to a clear height of two feet nine inches by means of upper and lower rails, taut ropes or chains or by other equally safe means.”
.
The jury … found that the defendants were guilty of a breach of statutory failing to comply with Statutory Rules and Orders 1928, No 69. The relevant part order is art 9, which provide:
“If a ship is lying at a wharf or quay for the purpose of loading or unloading or coaling there shall be safe means of access for the use of persons employed at such times as they have to pass from the ship to the shore or from the shore to the ship as follows:
(a) where a gangway is reasonably practicable, a gangway not less than twenty-two inches wide, properly secured, and fenced throughout on each side to a clear height of two feet nine inches by means of upper and lower rails, taut ropes or chains or by other equally safe means.”
…
It is clear that this regulation is intended to provide that there shall bea safe means of access from ship to shore and vice versa. The accident out of which this action arose was not in any way connected with the use of the gangway as such. Even if the gangway had not complied with the terms of the regulation, I am of opinion that the plaintiff would have no cause of action arising out of a breach of the duty imposed by the order. In Garrisv Scott LR 9 Exch 125 it was held that the plaintiff could not recover for sheep which were washed overboard from a ship by reason of the defendant’s neglect to takea precaution required by a statutory order on the ground that the object of the statute was to prevent the spread of disease among animals and not to protect them from perils of the sea. The evidence here is that the gangway was properly constructed. No evidence was given that in its structure it failed to comply with the regulations. The manner in which it was secured prevented any danger to persons using it as a means of going to or from the ship. It accordingly complied with the statutory regulation.
In my opinion, the answers to the questions whether the danger was unusual and whether there was a breach of statutory duty had no evidence to support them. The
O’Byrne J:I concur in the view expressed by the Chief Justice that the statutory regulation, on which the plaintiff sought to rely, was made for the benefit of persons passing and re-passing from the ship to the shore and that the plaintiff, who was not using it as means of access between the ship and the shore, cannot rely upon it …
Kingsmill Moore J: … The relevant portions of Article 9 are as follows:”Ifa ship is lying at a wharf or quay for the purpose of loading or unloading, there shall be safe means of access for the use of persons employed at such times as they have to pass from the ship to the shore or from the short to the ship ..”.
It appears to me plain that this article is for the purpose of securinga means of access which is safe for persons passing from the ship to the shore and the shore to the ship, and only persons who come within that category can complain of a breach. The plaintiff is outside the ambit of this regulation, which imposes a duty on the shipowner or his servants towards persons not using the gangway as a means of access …
Murnaghan and Lavery JJ concurred.
Dunne v Honeywell Control Systems Ltd and Virginia Milk Products Ltd
[1991] ILRM 595 Barron J:
…..
Photographs of the ladder have been given in evidence as well as a drawing showing its several features. The ladder is 300 millimetres wide and approximately three and half metres high. There is a hand rail on the right-hand upright of the ladder ata distance of four inches out from the upright. When it reaches the platform to which the ladder is the means of access it continues for a short distance. It then bends to the right and again straightens so that it ends up parallel to the position in which it first started. There is no hand rail on the left-hand upright of the ladder. There is a girder to the left of the ladder and the hand rail runs the length of that girder. That hand rail is eight inches laterally from the left-hand upright of the ladder and eight inches out from the face of that upright. The rungs of the ladder are 300 millimetres apart and vary in distance from the wall against which the ladder is placed from 230 millimetres at the bottom to 170 millimetres at the roof. The distance between the two hand rails where they continue
above the level of the platform at their widest point is 610 millimetres but the available space is reduced to 500 millimetres by the girder. The available space is further reduced at the roof and below to 390 millimetres.
Evidence has been given by three engineers one for each of the parties. Mr Abbott on behalf of the plaintiff gave evidence of the various measurements to whichI have already referred. He had a number of criticisms to make of the ladder. In the first place it was an addition to the factory premises and had to be built within the constraints of the existing structure. There was insufficient space for the person using the ladder at the point where the two rails were raised above the level of the roof. The space available at the roof, 500 millimetres, was less than the recommended width as set out in the relevant British standard for ladders issued in 1985. The right-hand rail where it passed within one and half inches of a condensate pipe was both less than the standard distance of 3″ and could be dangerous, because the pipe was from time to time hot. The steps were both too narrow and too deep and again were in breach of the standard to which he had referred. There were no protective hoops around the ladder which would in the events which happened almost certainly have prevented the plaintiff from falling. In his view there were a multiplicity of defects of a medium to serious nature. Mr Tennison, who was called on behalf of Honeywell, had similar criticisms to make of the ladder. His view was that had there been hoops there would have been no accident. He relied upon the Engineering Equipment Users Handbook for 1982 from which the British standard for 1985 was taken. Mr O’Neill was called on behalf of Virginia. He took the view that the steps were not too narrow nor too deep. He did not accept that the British standard was generally used in this country while both Mr Abbott and Mr Tennison were of that view. There were a number of standards which were used in this country and the steps came within the limits of American standards. He did, however, say that he would have designed the ladder differently and with different features which would have been more comfortable to use. I prefer the evidence of Mr Abbot and Mr Tennison. In my view, the design of the ladder including the several features to which I have referred created a potential danger to those using the ladder.
The case with which the plaintiff was descending the ladder was 150 millimetres deep, 475 millimetres long and 350 millimetres wide. Since there was only a distance of 90 millimetres between the left-hand vertical rail of the ladder and the girder to the left it was not possible to bring the case, even in the manner in which the plaintiff was holding it, over the edge of the roof without at the same time bringing it over the upright of the ladder. It was clearly a particularly awkward manoeuvre and one which would have involved the plaintiff in moving his body away from the ladder so as to accommodate the case. This was dangerous because the evidence of Mr Abbott is that it is important to maintain one’s centre of gravity as near to the ladder as possible and this clearly was not possible if he had to lean away in order to bring the case off the roof. This problem was accentuated by the fact that the case weighted over 25 lbs and was an awkward shape. In my view the plaintiff ought not to have attempted to ascend and descend the ladder while carrying his case.
The plaintiff sustained his injuries by reason of a combination of these two factors. It is necessary now to consider whether these factors were a breach of any duty owed to the plaintiff by either or both of the defendants.
In Daly v Greybridge Co-Operative Creamery Ltd [1964] IR 497 a young boy who was not employed at the creamery was injured by reason of the failure of the defendants to fence adequately certain machinery in breach of its duty under the provisions of the Factories Act 1955. The reason for this decision is set out in the judgment of Walsh J at page 502 as follows:
“In the present case the plaintiff was quite clearly not ’employed or working on the premises’ within the meaning of ss 21, 22 or 23 of the Act ofl955 and, indeed, I doubt if he could be held to have been employed or working in any sense of those terms on the occasion of the accident. He was lawfully on the premises but I cannot subscribe to the view adopted by the learned trial judge that that fact is in itself sufficient to give him the benefit of the statute as I think it is abundantly clear that the object of the Act is to protect only those persons who, broadly speaking, are employed in the factory premises at the work in which the factory is engaged or at work incidental to it.”
The distinction is further emphasised in the judgment of Walsh J in Roche v P Kelly & Co Ltd [1969] IR 100. At page 110 he says:
“This court in Daly v Greybridge Co-operative Creamery Ltd … held that the provisions of the Factories Act were not of an entirely general application to any person who happened to be in the premises in the course of his duties; the true distinction was
between those who were there working for the purpose of the factory, or at work incidental to it, and those who are not.”
In Rochev Kelly the plaintiff was an independent contractor employed by the defendant in the performance of a contract by the defendant to build a hay barn. In the course of his work he fell from scaffolding erected by the defendant and suffered serious injuries. The scaffolding was not erected in accordance with the provisions of the Building (Safety, Health and Welfare) Regulations 1959. It was held that he had a cause of action for breach of statutory duty as against the defendant. The obligation on the part of the
defendant to comply with the regulations in the circumstances contained in regulation 29(1) which provided as follows:
“Every employer undertaking building operations to which these regulations apply shall comply with such of the requirements of the regulations as affect any workman
employed by him or as relate to any work, act or operation performed or about to be performed by the employer.”
It was held that an independent contractor was not a workman within the first part of the regulation and so this part could not be invoked by him. It was however held that the second part of the regulation applied to an independent contractor, following the decision in Daly v Greybridge Cooperative Creamery Ltd, provided that the employer was performing any work, act or operation within the meaning of the regulation. On the facts, since the defendant remained in effective charge and control of the work, it was held that he was. Accordingly the defendant was subject to the obligations imposed by regulation 29 and the plaintiff succeeded. This latter decision was applied in O’Sullivan
v Dwyer [1971] IR 275 in respect of the same regulations where the plaintiff was also an independent contractor.
These cases show that the persons to whom the statutory duty is owed depend upon the construction of the terms of the provision which imposes the duty. Such persons must, however, come within the category of those who are working on the premises for the purposes of the factory or at work incidental to it. The duty relied upon in the present case is that imposed by section 37(1) of the Factories Act 1955, as enacted by section 12(1) of the Safety in Industry Act 1980. The plaintiff comes within the category of persons to whom the section can apply. The question is whether it should be so
construed as to give him the benefit of the provisions in the circumstances of this case. The provision is as follows:
“(I) Every place at which any person has at any time to work shall be made and kept ina safe condition and in addition to the foregoing there shall so far as is reasonably
practicable be provided and maintained safe means of access to and egress from every such place.”
Part III of the Factories Act 1955 deals with safety. Some of its provisions are silent as to whom it is intended to protect. Other provisions refer to “every person employed or working on the premises.” Section 37 refers to “every place at which any person has at any time to work.” Having regard to the words used in the relevant provisions of part III of the Act there is no reason why the section should be given a construction limiting its protection to servants of the factory owner. The plaintiff was required to work on the
factory premises for the purposes of the factory and was accordingly entitled to the benefit of the section.
An employer has a duty to take reasonable care for the safety of his employee. Where an employee is working on premises other than that of his employer the duty of the employer to use reasonable care for his safety does not in any way diminish. Nevertheless what might be reasonable for an employer to do for the safety of his employee on his own premises may no longer be reasonable where the employee is working elsewhere. See Mu/care v South Eastern Health Board [1988] ILRM 689.
This duty remains upon the master wherever and for whoever the servant may be working unless in the actual case that other person should in law be regarded as the master. In Lynch v Palgrave Murphy [1964] IR 150 a forklift and driver were hired out to a firm of stevedores. The plaintiff was injured through the negligence of the driver. It was held that if the driver had passed into the special employment of the stevedore, then the latter would be vicariously liable for his negligence; whereas, if he had not, this liability would have remained with his general employer. The court held that it was a question of fact whether or not the particular acts complained of were carried out as an employee of the stevedore or as an employee of the owner of the forklift.
The present case differs in the sense that the question is not, which employer should be vicariously liable for the acts of the plaintiff, but which employer owed him the duty of care owed by a master to his servant. But the test is the same, was the control exercisable by the person for whom he was working such as to make that person in reality the master. When it is, then it is that person who is liable. See Garrard v Southey [1952] 2 QB 174.
Here the plaintiff was performing a maintenance contract on behalf of Honeywell. Employees of Honeywell were regularly at the factory for that purpose. How the plaintiff carried out the maintenance of the processor and dealt with the control valve which required to be freed was a matter for him. It was because of his particular skill that he was required to do the work rather than an electrician employed by Virginia. To this extent Virginia had no control over him as he went about his actual work. Nevertheless he was doing that work for the benefit of Virginia. If his work impinged on other work being carried out, Virginia was entitled to order the work to suit itself. Virginia had a control over the plaintiff to that extent. This control did not make Virginia the plaintiff’s master. Nevertheless, it seems to me that the employer for the benefit of whose business the employee is working owes a duty of care to that employee commensurate with the extent of the control he is entitled to exercise over him. If the employee does or does not do something which it would be within the employer’s control to prevent or require, as the case may be, he is in breach of duty. Here the plaintiff would normally have had the assistance of one of Virginia’s electricians. In my view, if Virginia had a duty, as they had, to tell their own electrician not to carry cases or other materials as he ascended or descended the ladder, it had an equal duty to the plaintiff to give him a similar instruction.
Both defendants were in breach of their respective duties towards the plaintiff. The plaintiff was carrying his tools in a case which had been provided for him by Honeywell. In previous employments, he had used a satchel which he could carry over his shoulder and so leave his hands free when ascending or descending a ladder. However, Honeywell thought that a case gave his work a better image.
Honeywell should have known that the plaintiff would have been required to ascend and descend this ladder. Its employees went regularly to these premises and had presumably installed the equipment. It is reasonable for it to have inspected the premises in advance to ascertain the nature of the access to the workplace which would be provided for its employees. He should have been warned not to carry his whole case of tools onto the control room roof. Virginia was entitled to expect that Honeywell would have performed its duty of care towards the plaintiff to this extent. Once Virginia saw that this was how the work was being done, it should have prevented it and provided an alternative method for getting the tools to where they were required. Other testing devices were also carried up and down the ladder and this also Virginia failed to stop. Neither Honeywell nor Virginia did what was required of them in these respects. Honeywell left everything to the plaintiff and Virginia did not concern itself with him. Virginia was not entitled to ignore the presence of the plaintiff once it knew or ought to have known he was on the premises. No evidence has been given by Virginia in this regard. However even if Virginia did not know that the plaintiff was on their premises, they ought to have known and cannot escape liability on this basis.
The plaintiff cannot be totally exonerated. He ought to have realised the danger. In my view, the defects in the ladder for which Virginia is liable as occupier of the factory and the use of the case rather than a satchel were equally the cause of the accident and the fault attributable to each cause was likewise equal. I would assess the degrees of fault at common law as being 70% on Virginia, 20% on Honeywell and 10% on the plaintiff.
Contributory negligence in an action for breach of statutory duty has a different meaning from contributory negligence in an action of negligence at common law. In the former case the employee is not guilty of contributory negligence merely because he was careless or inattentive, or forgetful, or inadvertent. This meaning is taken from a passage
in the judgment of 6 Dalaigh CJ in Kennedy v East Cork Foods [1973] IR 244 at page
249. There he is citing with approval part of the charge of the trial judge to the jury in a case where a jury had found contributory negligence against the plaintiff in relation to his claim for common law negligence but had exonerated him of contributory negligence in his claim for breach of statutory duty. The passage to which he referred continued:
“It must be shown that he did something rather more than that. He must enter into the realm of downright carelessness, because the Factory Act was passed for the express
purposes of saving factory workers from their own carelessness, and their own inattention.”
The plaintiff was not taking sufficient care for his own safety, not through any positive act on his part, but because the danger did not occur to him. For this reason having regard to the principle of law to which I have referred, the plaintiff was not guilty of contributory negligence in relation to his claim for breach of statutory duty. He is accordingly entitled to recover in full against Virginia for breach of statutory duty.
Cosgrove v Ireland
[1982] ILRM 48 (HC, 1981)
McWilliam J: In December oflast year, in an action brought by the plaintiff in which he claimed that his constitutional rights and his rights under the Guardianship of Infants Act 1964, had been infringed. I held that the plaintiff’s rights as joint guardian of his children under the Act of 1964 had been infringed by the issue of passports for them to his wife after the Department of Foreign Affairs had been notified by him that he was objecting to the issue of the passports. I was of opinion that, after such notice as aforesaid, the passports should not have been issued without an application to the court. The children have been in Holland with the plaintiff’s wife since March 1975 and are
still there, and the plaintiff’s wife has stated that she will not agree to the children coming to Ireland. She has obtained a divorce from the plaintiff in Holland. The parties were married in 1970. The plaintiff was a small farmer and his wife was a qualified nurse. They were not compatible and by the end of 1974, the marriage had hopelessly broken down. It is always difficult to apportion blame when a marriage breaks down but there is no doubt but that the plaintiff was, at least, eccentric, and after his wife’s departure from the matrimonial home, he spent a short period in a psychiatric hospital. One of the psychiatrists at the hospital formed the opinion that he suffered from paranoia. After she left the matrimonial home the wife and her children were accommodated in a home for battered wives in Harcourt St Dublin. It is not unreasonable to suppose that she went to such an institution as a last resort, whether her apprehensions were justified or not. It was while she was there that the passports for her children were issued to her.
Having given my decision that the plaintiff’s rights had been infringed, the matter now comes before me to determine what relief, if any, the plaintiff is entitled to obtain. Orders are sought directing the defendant to make representations to the authorities in Holland regarding the custody of the children and access to them by the plaintiff but no argument ha[s] been addressed to me which persuades me that I have jurisdiction to make any such orders even if they had been sought in the statement of claim. The main arguments have centred round the plaintiff’s claim for damages.
On behalf of the plaintiff I have referred to an old case in the reign of Queen Anne, Ashby v White (1703) 2 Ld Raym 938. The substantial effect of this decision was that, if there is a right, there is a remedy and, if there is no other remedy, the remedy will be in damages. It is significant that, in this case, there was no pecuniary loss of any sort, merely the deprivation of a right to vote for a member of parliament. I was also referred to the judgment of Walsh J, giving the judgment of the Supreme Court in the case of Meskell v C6ras Jompair Eireann [1973] IR 121, in which he said, at page 136, that, for the breach of a constitutional right, a person is entitled to such damages as may, upon inquiry, be proved to have been sustained by him; and, at page 138, he said that a person may sue for damages suffered by reason of the infringement of his constitutional rights. I was further referred, on behalf of the plaintiff, to the case of Heywood v Wellers [1976] QB 446. This was a case in which solicitors had been grossly negligent in their conduct of, or failure to conduct at all, proceedings on behalf of their client to restrain an objectionable form of molestation. It was there held that it was foreseeable by the solicitors at the time of their retainer that failure to take the appropriate steps on behalf of their client would result in a continuance of the molestation or, at least, in a risk of its continuance. The solicitors having failed to take the appropriate steps, the client was further molested and it was held that she was entitled to recover damages for the distress resulting from the negligent failure of the solicitors to obtain the relief which they were employed to obtain.
I have also read the judgment of Birkett J, in the case of Constantine v Imperial Hotels Ltd [1944] KB 693. This was a case brought by a traveller against an innkeeper who had wrongfully refused to receive and lodge him. The issue related to the right to sue for breach of a common law right without proof of special damage. It was held that there was such a right and that the plaintiff was entitled to succeed in the action. This issue does not arise in the present case but, in his judgment, Birkett J, having reviewed a great many decisions, including that in Ashby v White, held that he was not entitled to award substantial or exemplary damages although he found that the plaintiff had suffered much unjustifiable humiliation and distress, and awarded only nominal damages.
The position as to damages for mental stress was considered by all the judges in
Heywood v Wellers. Lord Denning MR said (at 459):
“It was suggested that even if the solicitors had done their duty and taken the man to court he might still have molested her. But I do not think that they can excuse themselves on that ground. After all, it was not put to the test: and it was their fault that it was not put to the test. If they had taken him to court as she wished – and as they ought to have done – it might well have been effective to stop him from molesting her any more. We should assume it would have been effective to protect her unless they prove it would not.”
James LJ (at 461-2) referred to an earlier judgment of Lord Denning in Cook v Swinfen
[1967] 1 WLR 457. Lord Denning said in that case at 461:
“So both in tort and in contract the measure of damages depends on what may reasonably be foreseen. In these circumstances I think that, just as in the law of tort, so also in the law of contract, damages can be recovered by nervous shock or anxiety state if it is a reasonably foreseeable consequence.”
Bridge LJ said (at 463–4)
“There is, I think a clear distinction to be drawn between mental distress which is an incidental consequence to the client of the misconduct of litigation by his solicitor, on the one hand, and mental distress on the other hand which is the direct and inevitable consequence of the solicitor’s negligent failure to obtain the very relief which it was the sole purpose of the litigation to secure. The first does not sound in damages: the second does.”
Although I have not referred in argument to the case of Constantine v Imperial Hotels Ltd, it was submitted that I am not entitled to award any damages for mental distress. However I prefer to adopt the views expressed in the later cases, as I can see no reason why the principles there applied in cases of contract and tort should not also be applied in the case of the infringement of a statutory right. Accordingly, I am of opinion that the plaintiff is entitled to recover such damages as have been proved to have been sustained by him and also general damages for foreseeable mental distress, anxiety and
inconvenience.
The plaintiff visited Holland in the autumn in each of the years 1976, 1977, 1978 and 1979. His evidence in that he spent sums, not very satisfactorily estimated, in travelling to Holland and staying there on these four occasions. He has also claimed sums in respect of defending divorce proceedings brought against him by his wife in Holland.I have also had evidence from a travel agent as to the costs of travelling to Holland and from an actuary as to the capital value now of the sums required to meet such costs until the children reach ages varying from 16 to 18 years. This amounts to a substantial sum
and is claimed on behalf of the plaintiff.
Although the Department adopted an incorrect procedure and thereby infringed the rights of the plaintiff, I think I am bound to consider, in relation to any special damage, what was the difference between the damage actually sustained and the probable damage had the correct procedure been adopted. It appears to me, from the evidence I have heard, that the result would probably have been the same had an application been made to the court except that the court might have tried to impose some condition on the wife that the issue of the passports would be made subject to suitable arrangements for access by the plaintiff to his children. How such a condition could have been implementedI do not know but, had it been made, it is possible that some condition would also have been made requiring the plaintiff to contribute to the support of his children. He has not contributed anything towards the support of his wife or children since they left Ireland. The behaviour of the plaintiff while the parties were in Ireland was such that his access to the children would probably have been very greatly restricted had his wife and children remained in Ireland. It is quite inconceivable that he would have been given custody of the children when the parties separated.
The plaintiff’s visits to Holland were unsatisfactory from the point of view both of the plaintiff and of his wife. I am not satisfied that meetings would have been any more satisfactory had they taken place in Ireland except that the children would have been able to speak in English to the plaintiff. One unsatisfactory aspect of the visits was that the plaintiff made no prior arrangements with his wife regarding them and did not adopt any normal procedures for arranging the visits. In addition he refused to furnish the address at which he stayed in Holland and made no attempt to co-operate with his wife or her family while he was there. Having regard to all the circumstances of the case, I cannot accept the figures put forward on the plaintiff’s behalf as justified. I am satisfied that he did sustain some expense as a result of the issue of the passports in the way in which they were issued but, in my opinion, this was very small and I will award a sum of £250 on this account. I am also satisfied that the claim for substantial general damages is not justified either, but the plaintiff must have suffered considerable distress when his request, in effect, that the proper procedures should be ignored. Accordingly, he is entitled to no more than mere nominal damages and I will award a sum of £1,000 on this
account, making a total of £1,250.
Hughes v. Dundalk Harbour Commrs
[1923] 1 IR 43
Samuels J. (for Powell J.)
The following are the material provisions of the Pilotage Orders Confirmation (No. 2) Act, 1920 (10 & 11 Geo. 5, c. civ):
“1. The Pilotage Orders set out in the schedule hereto shall be and the same are hereby confirmed and all the provisions thereof shall have full validity and force.
2. This Act may be cited as the Pilotage Orders Confirmation (No. 2) Act, 1920.”
The following are the provisions of the Dundalk Pilotage Order made under the Act:
“DUNDALK PILOTAGE ORDER.
1. The limits of the Dundalk Pilotage District (hereinafter referred to as ‘the Pilotage District’) shall be the waters of the harbour and bay of Dundalk between the bridge of Dundalk and an imaginary line drawn between Dunany Point and Cooley Point in the county of Louth.
2. The pilotage authority for the pilotage district (hereinafter referred to as ‘the Authority’) shall be the Dundalk Harbour Commissioners as constituted by the Dundalk Harbour and Port Act, 1855 (hereinafter referred to as ‘the Act of 1855’).
3. Pilotage shall be compulsory within the Pilotage District.
4.(1) There shall be constituted a pilotage committee (hereinafter referred to as ‘the committee’) of the Authority consisting of seven members appointed and elected as follows:
(a) Five members appointed by the authority of whom three shall be members of the Dundalk Harbour Commission one being nominated as chairman and two shall be persons registered at the port of Dundalk as shipowners or persons entitled as shareholders in shipping companies to vote at the election of commissioners under the Act of 1855 such two last-mentioned members to be appointed in preference from amongst the Dundalk Harbour Commissioners:
(b) Two members elected in manner hereinafter provided by the pilots licensed for the pilotage district (hereinafter referred to as ‘the licensed pilots’) from among persons who either are or have been licensed pilots for the Pilotage District.
(2) The members of the committee shall be appointed and elected respectively in manner in the schedule hereto provided.
5. The authority may delegate to the committee any of their powers or duties under the Pilotage Act of 1913. The decisions of the committee on matters so delegated to them shall not require confirmation by the Authority but the committee shall report their proceedings to the Authority.
6.(1) The chairman if present shall preside at every meeting of the committee. If the chairman is absent at any meeting such other member as the members then present choose shall preside.
(2) Every question at a meeting of the committee shall be decided by a majority of votes of the members of the committee present and voting on that question and in the case of equality of votes the person presiding at the meeting shall have a second or casting vote.
(3) The quorum of the committee shall be four.
(4) No member of the committee shall take part in any proceedings of the committee relating to any question affecting himself personally.
(5) Subject to the provisions of this Order the committee may regulate their own procedure.
(6) No act or proceeding of the committee shall be invalid on account of any vacancy in the number of the committee at the time of such act or proceeding or on account of the appointment or election of any member having been defective.
7. Members of the committee shall hold office from the date of their appointment or election respectively until such time as their successors may be appointed or elected respectively.
8. Members of the committee going out of office may be reappointed or re-elected respectively.
9. The Authority may out of any moneys coming into their hands as harbour authority under the Act of 1855 without prejudice to any other of their powers pay the whole or any part of the administrative expenses incurred by them as pilotage authority and may also contribute towards any pilots’ benefit fund established in the Pilotage District such sums not exceeding £150 in any year as they think fit.
10. Separate accounts shall be kept by the Authority of all moneys received and expended by them in connection with the pilotage service.
11. In addition to the powers of the Authority to make bye-laws regulating the system to be adopted for the supply of pilots they may from time to time if it shall appear desirable so to do build purchase or hire and employ in the pilotage service one or more pilot cutters and may demand such sum of money from the licensed pilots for the use thereof as the Authority may think fit.
12. Sections 87 to 99 of the Act of 1855 and any other enactment or order relating to pilotage in the Pilotage District shall cease to have effect and shall for the purposes of section 59 of the Pilotage Act, 1913, be deemed to be superseded.
13. This Order shall come into force on the day when the Act confirming this Order is passed.
14. This Order may be cited as the Dundalk Pilotage Order, 1920.
SCHEDULE.
With respect to the appointment and election of the members of the committee the following provisions shall have effect (that is to say):
1. The persons to be appointed by the Authority as members of the committee shall be chosen at the first meeting of the Authority held after their annual election in the year 1920 and each year thereafter.
2.(1) The members to be elected by the licensed pilots (hereinafter referred to as ‘the pilot members’) shall be elected at meetings of the licensed pilots which shall take place in the month of September in the year 1920 and each year thereafter at a time and place to be fixed by the Authority or failing them by the Board of Trade and advertised ten days at least before the day appointed for such election in one or more of the newspapers published and circulating in the town of Dundalk.
(2) The Secretary of the Authority or failing him some other person to be appointed by the Authority shall be the chairman of the meeting and the returning officer and shall preside at and regulate the proceedings at such meeting.
(3) Every licensed pilot shall be entitled to attend or to be represented at the meeting and to take part and vote in each election of pilot members thereat but this provision is not to authorise attendance to the prejudice of the pilot service.
(4) Candidates for the office of pilot member shall at such meeting be nominated and seconded by licensed pilots and if the number of persons so nominated does not exceed two the persons so nominated shall be deemed to be duly elected but if the number of persons nominated exceeds two the election shall be decided by the majority of the licensed pilots present or represented at the meeting.
(5) Any licensed pilot not present at any election meeting may by writing under his hand appoint any licensed pilot as proxy to represent him provided that all instruments in writing appointing such proxy shall be lodged with the Authority not later than the day preceding the day of the meeting.
(6) Every licensed pilot present or represented at any election shall be entitled to two votes but shall not give more than one vote for any one candidate.
(7) The chairman of the meeting shall as soon as may be after the election certify in writing to the Authority the name or names of the person or persons elected to be pilot members and all such persons shall thereupon become members of the committee.
(8) In case there is a failure to elect a pilot member at the first or any subsequent election the Board of Trade may appoint any licensed pilot to fill the vacancy and such person shall hold office as though he had been elected under the provisions of sub-sections (1) to (7) of this section.
(9) The costs charges and expenses of and preliminary and incidental to the election of pilot members shall be paid by the Authority.
3. In the event of any vacancy among the appointed or elected members of the committee arising otherwise than by effluxion of time the vacancy shall be filled as soon as may be thereafter in the manner prescribed for the annual appointment or election but any person so appointed or elected shall hold office only until the next annual appointment or election.”
The following are the material provisions of the bye-laws made by the Dundalk Harbour Commissioners:
“INTERPRETATION.
1. In these Bye-laws
‘The Pilotage District’ means ‘the Dundalk Pilotage District,’ as defined in the Dundalk Pilotage Order, 1920, namely:The waters of the Harbour and Bay of Dundalk between the Bridge of Dundalk and an imaginary line drawn between Dunany Point and “Cooley Point in the County of Louth.
‘The Pilotage Authority’ means the Pilotage Authority for the Dundalk Pilotage District.
‘The Pilotage Committee’ means the Pilotage Committee appointed under the Dundalk Pilotage Order, 1920.
LICENSING OF PILOTS.
2. A person shall not be licensed as a Pilot unless or until he satisfies the following conditions:
(a) He is a natural born British subject and the son of parents both of whom were at the time of his birth either natural born or naturalised British subjects;
(b) He is not more than 40 years of age at the time of a license being granted to him;
(c) He has satisfied the Pilotage Authority that he possesses the qualifications detailed in Bye-law 3.
DUTIES OF PILOTS.
12. The Pilot Master, who shall be the Harbour Master of Dundalk for the time being, will keep a rota assigning to each Pilot his turn of duty, and any Pilot boarding a vessel out of his turn shall be liable to a penalty not exceeding £5.
13. Each Pilot shall board an outgoing vessel when directed by the Pilot Master, and shall use his utmost endeavour to approach and board an incoming vessel when so directed, and for any breach of this Bye-law shall be liable to a penalty of £5.
14. Every Pilot ordered to an outward bound steamer shall repair on board in sufficient time before such vessel shall leave the Dock or Port to ascertain if the vessel be ready for sea, and if not, when his services will be required, and if ready, shall then remain on board, and if not ready, shall proceed on board when required and shall then remain on board and give directions for the management of such vessel, generally fulfilling the requirements of these Bye-laws, until she is safely outside the bar of Dundalk Harbour, and in default of doing so shall for every such offence be liable to a penalty not exceeding £5 or to suspension or dismissal.
PILOTAGE RATES.
39. If in consequence of the hoisting of a signal for a pilot by any vessel a pilot boat shall have put off and approached or made towards such vessel, the Master, Owner or other person in command of such vessel shall be deemed to have taken and employed a pilot and shall be subject to Pilotage charges whether he shall have taken such pilot on board or not.
40. The Masters of all vessels liable to Pilotage rates shall pay the same to the Secretary of the Pilotage Authority or to the Harbour Master or to some person authorised on their behalf and not to the pilots employed.
41. All applications for a reduction or refund of the Pilotage Rates shall be made within one month from the date of the Pilots’ service in respect of which same may be claimed, otherwise such application shall not be entertained.
POOLING OF PILOTAGE DUES.
45. The Pilotage dues earned by the licensed pilots shall be pooled, and after the deduction provided for in Bye-law 47 shall be distributed in such manner as the Pilotage Committee shall determine.
PILOTS’ BENEFIT FUND.
46. The Pilotage Authority shall establish a Pilots’ Benefit Fund into which they shall pay a sum not exceeding £150 in any year out of any moneys coming into their hands as Harbour Authority, and also the contributions on the Pilotage dues earned by the licensed pilots provided for in Bye-law 47, and also the contribution by the Owners of ships provided for in Bye-law 48.
47. A proportion of the Pilotage dues received by the Pilotage Authority amounting to ten per cent. shall be deducted by them and shall be paid into the Pilots’ Benefit Fund.”
SAMUELS J. , having stated the facts and pleadings, continued:
The facts are not in dispute. Under the defendants’ bye-laws, approved by the Board of Trade, the plaintiffs are licensed pilots on the rota for service on outgoing vessels, and bound to board such vessels when directed by the pilot master and tender their services under a penalty of £5 for any breach of such duty. Messrs. Lockington & Co. are the owners of two steamships which constantly ply to and from the port of Dundalk. Neither the masters nor mates of these vessels are licensed pilots for the Dundalk district. Messrs. Lockington have constantly refused to carry pilots in their vessels. The plaintiffs, in accordance with the bye-laws of the pilotage district under the direction of the defendants, the pilotage authority, given through the pilot master, have each, according to his turn on the rota of pilots for duty, gone aboard the vessels of Messrs. Lockington in due time before the vessels left for sea and offered their services as pilots; these offers of services have been invariably refused; and the plaintiffs have handed in the regulation dockets on each occasion showing their attendance on board and the refusal by the masters of Messrs. Lockington’s ships to employ them. An account has been kept by the defendants of these rejected offers of pilotage and of the amount of fees that would have been earned had the ships carried the pilots, and demands for pilotage rates have been regularly made by the defendants in their account for harbour dues and other port rates furnished to Messrs. Lockington, who have always struck out the amount of the pilotage rates and refused to pay them. For instance, on November 16th, 1920, an account for £119 4s. 6d. was furnished by Messrs. Lockington, including £9 11s. 3d. pilotage fees, and Messrs. Lockington sent a cheque for £109 13s. 3d., striking out the balance of £9 11s. 3d. on the ground that they had not obtained the services of any pilots. The defendants, thus defied by Messrs. Lockington, have not proceeded in any way, either by seeking to enforce fines against the masters of the offending ships or by any action against the owners of the vessels to enforce the Pilotage Act, 1913, in the case of Messrs. Lockington, or to prevent their vessels from being navigated within the pilotage district without employing any licensed pilots. The plaintiffs say that they have a very substantial pecuniary interest in the enforcement of compulsory pilotage in the pilotage district; that, in fact, their subsistence depends on it; and that if the defendants had enforced the Compulsory Pilotage Act in the case of Messrs. Lockington considerable sums would have been payable to the defendants for pilotage dues, the greater portion of which would have been pooled, paid into the pilot fund, and distributed among them as licensed pilots of the port, and other portion of which would have been applied for the local Pilots’ Benefit Fund in accordance with the Pilotage Act, 1913.
Under sect. 11, sub-s. 1, of the Pilotage Act, 1913, every ship (other than an excepted ship), while navigating in a pilotage district in which pilotage is compulsory for the purposes of entering, leaving, or making use of any port in the district . . . shall be either (a) under the pilotage of a licensed pilot of the district, or (b) under the pilotage of a master or mate possessing a pilotage certificate for the district. Messrs. Lockington’s vessels are not excepted vessels within the section, and (as above stated) neither their masters nor mates possess pilotage certificates for the district. Their vessels have regularly navigated the pilotage district of Dundalk without any licensed pilots, and Messrs. Lockington have consistently contravened the Act, and have paid no pilotage dues for their vessels.
Sect. 11, sub-s. 2, of the Pilotage Act, 1913, provides that if any ship (other than an excepted ship), in circumstances in which pilotage is compulsory, is not under pilotage after a licensed pilot of the district has offered to take charge of the ship, the master of that ship shall be liable in respect of each offence to a fine not exceeding double the amount of the pilot dues that could be demanded for the conduct of the ship.
This section does not impose any penalty on the owner of the vessel, nor does any other section make the owner liable to a fine or other penalty for directing or allowing his vessel to be navigated without a licensed pilot.
The defendants contend that the statutory remedy given by this section, viz., to take proceedings to fine the master, is an exclusive remedy; and that no proceedings could be taken by them as the pilotage authority to restrain the owners, Messrs. Lockington, from plying with their vessels in the Dundalk pilotage district without carrying a licensed pilot. They further contend that they are not under any legal obligation as the pilotage authority to proceed against the masters; that the pilots themselves can as common informers proceed against the masters; and that under sect. 49 of the Pilotage Act, 1913, the owners are not liable to pay pilotage dues unless the services of a licensed pilot were obtained, which they have not been in the case of Messrs. Lockington’s vessels.
The defendants contend that in any event they as pilot authority have no duty cast upon them, so far as the pilots are concerned, to enforce the Act either against the masters or against the owners. Their contention amounts to this: that, though they are constituted a statutory authority, with great and important duties imposed on them, and though they have exclusive jurisdiction over the pilotage district, and though the pilots must act in accordance with their bye – laws, they themselves are under no liability to the pilots to carry out their statutory obligations; and that, though Dundalk is by Act of Parliament a compulsory pilotage district, to be administered as such by them, they can, so far as the pilots are concerned, permit it to be used by the owners and masters of particular vessels as a district in which pilotage is not compulsory. If this construction is correct, the defendants could give undue privileges to particular owners, and practically reduce the provisions of the Pilotage Act to a nullity by neglecting to enforce it. I do not agree with the contention of the learned counsel for the defendants that they have no means of enforcing as against Messrs. Lockington the obligation to carry licensed pilots on their vessels navigating within the defendants’ district. Even were the penalties recoverable by summary jurisdiction imposed on the owners, as they are upon the masters of vessels violating the compulsory pilotage regulations, the defendants as the pilot authority could (apart from any other remedy) compel by injunction the observance on the part of the owners of the statutory obligation to carry licensed pilots. It may possibly be that the pilotage authority should, if they proceed by injunction, sue as relators through the Attorney-General; but I am not to be taken as deciding whether, having regard to their particular position under the Act as pilotage authority, it would be necessary for the Attorney-General to be a party. It is, however, in my opinion, clear that there is not, as is contended, only one remedy open, viz., the imposition of fines upon the masters for the enforcement of the statutory duty to carry licensed pilots. The owners who habitually violate these statutory obligations may be restrained by injunction from permitting their ships to be navigated without licensed pilots: Attorney-General v. Ashborne Recreation Ground (1); Devonport Corporation v. Tozer (2); Attorney-General v. Wimbledon House Estate Co., Ltd. (3); Attorney-General v. Appleton (4).And there are doubtless other remedies open to the pilotage authority against owners who deliberately violate the statutory provisions relating to the district, and are, practically, in so doing, trespassers in the port.
Are the defendants then liable to be sued by the plaintiffs in damages for the loss of pilotage fees incurred by the plaintiffs through the neglect of the defendants to enforce the Pilotage Act, 1913? The law is plain that whosoever undertakes the performance of, or is bound to perform duties imposed by the assumption of an office is liable for injuries caused by the negligent discharge of those duties. It matters not whether he makes money or a profit by means of discharging the duties, or whether it be a corporation or an individual who has undertaken to discharge them: Gilbert v. Corporation of Trinity House (5). To quote Lord Watson in Sanitary Commissioners of Gibraltar v. Orfila (6): “Their Lordships do not wish to suggest that commissioners or other public trustees who have no pecuniary interest in the trust which they administer can escape liability when they are negligent in the active execution of their trust. It is an implied condition of statutory powers that when exercised at all they shall be executed with due care. But in the case of mere non-feasance no claim for reparation will lie except at the instance of a person who can show that the statute or ordinance under which they act imposed upon the commissioners a duty towards himself which they negligently failed to perform. In the Mersey Docks Case (7) it was held that the trustees owed to all shippers and ship-owners using the docks and paying toll for the accommodation the statutory duty of keeping the docks and their entrances in a sate condition and further, that the fact that the trustees held the tolls which they collected, not for their own purpose, but for the public interest, did not exempt these funds from liability for damage arising from the neglect of that duty. Lord Blackburn, in delivering the opinion of the consulted judges, stated the proper canon of construction to be that ‘in the absence of something to show a contrary intention the Legislature intends that the bodythe creature of the statuteshall have the same duties, and that its funds shall be rendered subject to the same liabilities as the general law would impose on a private person doing the same thing.'”
Under the Pilotage Act, 1913, penalties are not imposed on the pilot authority itself for misfeasance or neglect of duty. A person injured by their negligence is entitled to sue them at common law for any wrong which gives him a cause of action. In the present case the statute contains general provisions for the benefit of the pilots; the due administration of these provisions is a duty imposed by the statute on the pilotage authority. If the pilotage authority, through the neglect of their obligations to enforce compulsory pilotage, cause particular injury to an individual or a class of individuals who are intended to be benefited by the Act, that individual or class can make the pilotage authority liable in an action.
It is clear in the Act that the pilots have a great pecuniary interest in the enforcement by the defendants of compulsory pilotage in the district. They earn their living by acting as such pilots. Pilotage Orders, made under sect. 7 of the Pilotage Act, 1913, can only be made subject to provision being made for compensation to pilots for any loss or damage which may be incurred by them in consequence of a rearrangement of a pilotage district. Under sect. 17, sub-s. 9, a pilotage authority can fix a limit to the number of pilots to be licensed, determine the system to be adopted with regard to their supply and employment, fix the rate of payments to be made for their services as pilots, define the conditions on which pilotage may be payable on different scales, and provide for the distribution and collection of pilotage dues, provide for the pooling of the dues earned by the pilots, and provide for a deduction from the sums received by pilots of any sums required for the administrative expenses of the authority or any contributions required for any fund established for the payment of pensions or other benefits for pilots, their widows, or children by creating a pilots’ benefit fund. The authority can also provide for the examination of masters and mates applying for pilotage certificates for the district, and prohibit the granting of certificates to masters or mates who do not hold at least a mate’s certificate of competence under the Merchant Shipping Act. They can require the owners of ships whose masters or mates hold pilotage certificates to contribute towards the pilot fund of the district. By sect. 21 all receipts of a pilotage authority (other than on behalf of and paid to any pilot, or received as direct payments to the pilots’ benefit fund) shall be paid into a separate account or fund, to be called the pilot fund or account of the pilotage district; and, by sub-s. 2 of that section, all expenses incurred by a pilotage authority in the exercise of their powers and duties shall be paid out of the pilot account or fund, and, subject to such payment, the balance shall be applied to the purposes of any pilots’ benefit fund established for the district, and so far as not required for that purpose shall be applied for the benefit of the pilots in such manner as the pilotage authority determine, with the approval of the Board of Trade.
Again, the pilots have a series of statutory rights and obligations conferred or imposed on them which are regulated and controlled by the pilotage authority and defined by their bye-laws. It is unnecessary to refer to the sections of the Act in detail. The licensed pilots are persons who under the statute are specially provided for, and who have peculiar rights and obligations, and have an interest, quite distinct from that of the general public, in the due administration and enforcement by the pilotage authority of the Pilotage Act, 1913.
On the other hand, the pilots are subject to heavy penalties if they do not perform their duties under the Act and observe the directions of the pilotage authority. To take an instance relevant to the present action, under sect. 48, sub-s. 11 (g), any licensed pilot who refuses or wilfully delays to pilot any ship when required to do so by the master, owner, or consignee thereof, or by any officer of the pilotage authority, shall, in addition to any liability for damages, be liable in respect of each offence to a fine not exceeding £100. By bye-law 13 each pilot shall board an outgoing vessel when directed by the pilot master, and for any breach of this bye-law shall be liable to a penalty of £5; and, by bye-law 14, every pilot ordered to an outward-bound steamer shall repair on board in sufficient time before such vessel shall leave the dock or port to ascertain if the vessel is ready for sea, and if and when his services will be required, and if ready shall remain on board, and if not ready shall proceed on board when required, and shall give directions for the management of the vessel generally, fulfilling the bye-laws, until she is safely outside the bar of Dundalk Harbour, and in default of so doing shall for every such offence be liable to a penalty not exceeding £5, or to suspension or dismissal.
It was proved that the several plaintiffs, under the direction of the pilot master, attended and boarded the outgoing vessels of Messrs. Lockington, whether they left by night or day, thus, as far as in them lay, being prepared to carry out their duty under the bye-law; but their services were refused. The defendants had these refusals reported to them on each occasion, and an account has been kept of them; but further than keeping such account the defendants did not proceed, and they have declined or neglected to take any action against the owners or masters of these vessels, which invariably left the port without having on board any pilot, or any master or mate licensed as a pilot for the district. The defendants recognized their duty so far as to require the plaintiffs, the pilots, to attend the outgoing vessels, and, through their proper officer, ordered them to do so. Had the plaintiffs neglected to do as they were ordered they could have been fined, suspended, or dismissed by the defendants. In my opinion the defendants, as the pilotage authority, should not have been content to direct the plaintiffs to proffer their services; they should also have taken steps to compel the owners and masters of these vessels to carry pilots; and, through their not having done so, they are, in my opinion, liable to the plaintiffs for the breach of the duty imposed on them by the statute.
The plaintiffs cannot themselves collect the pilotage rates. Under bye-law 40 the masters of all vessels liable to pilotage rates shall pay the same to the secretary of the pilotage authority or to the harbour master, or to some person authorized on their behalf, and not to the pilot employed. It was the duty, therefore, of the defendants to carry out the Act, and to see that the pilotage dues were enforced and collected, and when collected paid or applied in accordance with the Pilotage Act to the pilots or for their benefit. This was a duty they owed to the plaintiffs, just as it was a duty the plaintiffs owed the defendants to be prepared to board, as they did, the outgoing vessels in accordance with the directions of the pilot master. For the breach by the defendants of their duty to enforce the Act they are, in my opinion, liable to the plaintiffs.
But it is contended that the defendants cannot recover the pilotage dues from the offenders, Messrs. Lockington, as sect. 49, sub-s. 1, provides that the owner or master shall only be liable to pay pilotage dues for any ship for which the services of a licensed pilot were obtained; and that, as Messrs. Lockington and the masters of their vessels did not obtain the services of a licensed pilot, having refused to accept them, pilotage dues are not payable by them. Assuming that this is correct, yet it does not preclude liability, either on the part of the defendants to the plaintiffs, or of Messrs. Lockington to the defendants. Once the services were refused, the pilotage authority should, in my opinion, have carried out their obligation and enforced the penalties provided by the Act against the masters, and taken any other steps necessary to prevent the flagrant violation of the Pilotage Act by the owners; and it is not, in my opinion, any answer to the plaintiffs’ claim here to say, in effect, to them, “It is true we ordered you to tender your services as pilots, but, as the owners and masters of the ships declined them, they are not liable to pay dues, and we are not under any liability to you accordingly.” In my opinion the defendants are liable to pay damages to the plaintiffs for their breach of duty in not enforcing the Act, and the measure of damages is the amount of pilotage fees that could have been earned by the plaintiffs had the vessels carried the licensed pilots. The amount can be readily ascertained, as the account of such fees has been kept by the defendants. The damages cannot be carried further back than six months before action brought, having regard to the Public Authorities Protection Act.
I find as a fact that the defendants, as the pilotage authority of the Dundalk pilotage district, have, during six months before action brought, neglected and refused to enforce the Acts and bye-laws relating to compulsory pilotage in their district in the case of certain ship-owners and masters of vessels plying in the district to the prejudice of the plaintiffs, and I shall direct an inquiry as to damages suffered by the plaintiffs owing to such neglect and refusal by the defendants. The plaintiffs are entitled to their costs against the defendants.
Doherty v South Dublin County Council
[2007] I.E.H.C. 4, Charleton JJUDGMENT of Mr. Justice Charleton delivered on the 22nd day of January 2007
Facts
1. The applicants have been married to each other for fifty three years. They have fourteen surviving children and over one hundred grandchildren. They are members of the Irish Traveller Community. Most of their lives have been spent as nomads. Mrs. Doherty is seventy years old while Mr. Doherty is seventy five. They have always lived in a caravan. The pattern of where, and how, they have lived is a reflection of the changing legal attitudes towards their community. For decades they moved from place to place, for ten years they had lived in a place called Hillside in Galway, along with other traveller families, though without facilities. They had also lived near Ennis on a site which had basic services. As a result of trouble the site was closed down and they then lived on the side of the road for around four years. When they moved to Dublin, about ten years ago, it was the first time that they had access to any accommodation facilities or services in their lives. After an error, they were offered a place at Lynch’s Lane halting site on a temporary basis pending the provision of permanent halting site accommodation. This has continued for some seven or eight years.
2. Lynch’s Lane was opened by South Dublin County Council in the mid-1990s in order to provide serviced bays for the caravans of Travellers who traditionally pursued a nomadic way of life and to accommodate Travellers who are awaiting the provision of permanent accommodation by the Council. There are twenty four caravan bays accommodating twenty two families. The transient nature of the site means that not every bay has a standard electricity supply. To provide this, according to the Council, would mean that what was supposed to be transient or temporary becomes permanent. Their long-term plan, due to be completed in mid 2008, involves the redevelopment of Lynch’s Lane to the most modern standard for the caravan accommodation of members of the Irish Traveller Community. Meanwhile, the facilities on Lynch’s Lane are basic. The applicants now live in a mobile home that was purchased three or four years ago with the assistance of a loan from the Council. It has not been repaid. Its electricity supply is basic, it has no internal plumbing, so therefore toilet and shower facilities are in a central block; with pots in the caravan providing temporary relief. The applicants live and sleep in the sitting room area of the caravan in order to keep warm. Only one electrical appliance can be used at a time. The applicants are in poor health. Mrs. Doherty uses an electrically powered nebuliser for up to sixteen hours a day. The attempt to heat the caravan has caused condensation in cold weather and the resulting dampness seems to be contributing to them both picking up ailments including, in Mrs. Doherty’s case, pneumonia. She needs to use the toilet frequently and, in consequence of her increasing immobility, the use of a pot at night is the best practical facility available to her. Because of concerns in relation to her health, and the poor standard of their accommodation, an occupational therapist’s report was prepared in November, 2004. Whether this was brought to the attention of the Council or not at the time, it appears that it was never placed on their housing file, a fact which became apparent on 5th October, 2005, when the applicants’ solicitor made a request to seek the release of the housing file.
3. When, on 27th April, 2005, Mrs. Doherty was discharged from the Adelaide and Meath Hospital, Dublin; Irene Dunne, the Community General Nurse, wrote to the Travellers Unit of South Dublin County Council indicating that Mrs. Doherty had a serious chest condition which in its final stages had to be treated with home oxygen. Her letter indicated that the basic needs of Mrs. Doherty were for an indoor toilet, central heating in her caravan, and hot running water. The letter continued:-
“The caravan she is living in is cold and damp and ideally needs to be replaced with a newer model with double glazing, central heating and indoor sanitation. I understand that all of this is a very tall order for the Council to meet, however as Mrs. Doherty’s health is under serious stress because of their living conditions they deserve your immediate consideration in this matter.”
The Offers
4. These proceedings were commenced in February, 2006. The first substantive offer to the applicants was made about six weeks later. The material part of the letter reads as follows:-
“The Council has been advised by the County Architect that equivalent standards and specifications required for standard type social housing under Departmental Guidelines and the Building Regulations are not found in, and cannot be achieved in respect of, caravan/mobile home type accommodation ….
In the circumstances, the Council is of the opinion that the provision of another, albeit newer, caravan with internal plumbing would not adequately or safely address the needs of the applicants or safeguard them against cold, draughts and dampness. Accordingly, the Council is unable to provide your Clients with caravan accommodation of the type sought by them. As your Clients can no longer remain in occupation of the caravan situate in Bay 16, they may now be regarded as homeless persons for the purpose of the Housing Acts. While the Council is in a position to arrange them temporary accommodation of the type offered to other homeless applicants, that is, accommodation in a ‘Bed and Breakfast’ establishment, it is accepted that such accommodation would not be appropriate having regard to your Client’s ill health and advancing years. The Council accepts that your Clients have indicated that standard housing accommodation is not generally acceptable or suitable to them as members of the Traveller Community and notes that your Clients have not applied for such accommodation. Your Clients are included in the assessment carried out by the Council under the Traveller Accommodation Programme 2005-2008 and while it was intended to meet their accommodation needs in the new residential caravan park comprising ten group houses and ten residential caravan sites planned for Lynch’s Lane, the position is that these accommodation works are not expected to commence until the third quarter of 2006 and will not be completed until the summer of 2008. As the Council is unable to provide your Clients with suitable temporary accommodation of the type that they would prefer and does not possess any other suitable temporary alternatives at the present time, I am instructed to inform you that by reason of your Clients’ homelessness and medical priority, the Council is in a position to allocate to your Clients standard housing accommodation in a two bed roomed ground floor apartment at either [addresses stated]. These apartments can be viewed by prior appointment. …”
5. That offer was refused by letter dated 28th March, 2006. By a further letter dated 21st April, 2006, the Council varied their offer:-
“While the Council is of the view that the offer of permanent accommodation is a sufficient discharge of its statutory duties to your Clients in circumstances where it is not in a position to provide them with permanent accommodation in a residential caravan park, it is nonetheless prepared, having regard to your Clients age and health concerns to offer your Clients on a temporary basis accommodation at [a two bed ground floor apartment in Clondalkin] pending the development of the new residential caravan park at Lynch’s Lane and the provision of permanent accommodation to them in that park. It may be of some assistance to your Clients to know that an elderly traveller couple … and their daughter resides [there]. This site is part of a recently constructed sheltered housing development, with on site support services. There are no vacancies at the moment in Ballyowen Hall, Lucan. However one of the remaining units which has yet to be handed over to the Council, has been reserved for your Clients. Another temporary alternative which might be of interest to your Clients is a housing development reserved for older persons at [stated]. There are already two traveller families living in this development …”
Reasons for Refusal
6. Neither of these offers was taken up. It is a consistent feature of the correspondence between the applicants and the Council that they have always opted for caravan type accommodation with a group housing scheme, among other Travellers, as a second option. As early as 18th December 1998, the Clondalkin Travellers Development Group, on their behalf, made it clear that the residence in Lynch’s Lane was temporary and was one which they felt would impact negatively on their health. It was an offer which they accepted “because of the electricity and the safety of having neighbours”. That letter seeks to impress on the Council “the extreme reasons as to why they are willing to move into Lynch’s Lane for Christmas” and asks for priority in the provision of permanent accommodation.
7. Paddy Doherty, in his grounding affidavit in these proceedings emphasises his aversion to a permanent form of housing. He says:-
“I do not believe that physical housing would be the more appropriate solution to our difficulties. Our poor living conditions can be just as well addressed through the provision of a properly insulated and heated mobile home which has an indoor toilet and shower. What my wife and I seek is simply a home in which we can safely live, appropriate to our traditions and customs as members of the Travelling Community. It is our deepest wish that we be able to spend our final years together as a family.”
8. In a later affidavit dated 3rd April, 2006, Mr. Doherty says that, while he appreciates the offers coming from the Council, he and his wife are unable to accept them:-
“We have lived in caravan style accommodation all our lives and have lived among the Traveller Community all our lives. We are now too old to adjust to a new way of life, living in an apartment amongst people whom we do not know and in an environment we are not familiar with. We are not refusing the offer of standard accommodations in order to be awkward or difficult. Our connection with the traveller way of life is something we cannot change. While some of our children have moved into housing and have made that adjustment successfully, my wife and I would find that simply impossible. We would be like fish out of water. We get on well with our neighbours on Lynch’s Lane and they provide us with the community and support that we need at this stage of our lives. Although we no longer travel the way we once did, living on a halting site still maintains that connection with our old way of life … I have no doubt that if we were to move to one of the apartments, we would find ourselves very isolated and lonely and without the support and friendship that exists for us on the Lynch’s Lane site. I say that being as old as we are, we simply want to be left where we are, live the way we have always lived and to stay in the only community we have ever known. All we need to do that is an improvement in our physical accommodation. This is not a matter of demanding a high level of luxury, or of the Council spending a large amount of money on our behalf, but we are looking for something that would be adequate to our needs as elderly Travellers with a number of health problems. I can understand why members of the settled community would find it exceptionally difficult to adjust to living on a halting site; as Travellers, my wife and I would find it exceptionally difficult to adjust to living in a house.”
The Claim
9. These proceedings seek a declaration that the failure of the respondents to ensure that the applicants are provided with a centrally heated, insulated and internally plumbed caravan is in breach of the respondents’ duties under the Housing Acts 1966-2004, as interpreted in the light of s. 2 of the European Convention on Human Rights Act, 2003; is in breach of s. 3 of European Convention on Human Rights Act, 2003; is in breach of the Equal Status Acts 2000-2004; and is in breach of Council Directive 2000/43/EC (The Race Directive). Other relief is sought including injunctive relief requiring the Council to provide the applicants with a centrally heated, insulated, and plumbed caravan, an order of mandamus in that regard and ancillary reliefs. The opposition to this claim has been in the form of contrary affidavits, legal argument and an objection that the reliefs sought are not available in judicial review proceedings. If the proceedings are capable of being compressed into a simple claim and answer, it is that the applicants feel that they are being treated unequally by being offered bricks and mortar accommodation and that they have an absolute statutory right to opt for the traveller way of life, involving caravan accommodation, under the relevant legislation. Insofar as they have made this option, which undoubtedly they have, they say that the treatment afforded to them by the Council is unequal by reason of the fact that members of the settled community who, by reason of their homelessness, are required to be housed by local authorities, receive a roof over their heads, in the form of bricks and mortar. However, members of the Irish Traveller Community who exercise the option special to them in the relevant legislation receive only a piece of tarmac on which to park their caravan, together with ancillary services of a variable kind. The applicants assert that the Council is discriminating against them as members of the Traveller Community by insisting on moving them into a house and, in effect, to adopting a way of life, or circumstance of living, which is alien to them. In effect, the applicants assert that once they have made the choice as Travellers – for non bricks and mortar accommodation – that choice must be respected in all circumstances by the Council and they should then receive a caravan roof over their heads in the same way as the settled community receive a bricks and mortar roof over their heads. The answer of the Council to this assertion is that their offers to the applicants are reasonable and accord with what they are obliged to do by statute.
10. It is not impressive that accommodation offered to the applicants on a temporary basis has continued to be their place of residence for in excess of six years. Nor is it helpful that two substantive offers were made to the applicants only on the commencement of these proceedings. It is important to record, however, that insofar as accusations of unequal treatment and mentions of the Race Directive may give rise to the suspicion that the worse forms of motivation for human conduct are at play here, the Court finds no evidence on the papers before it that the respondents have acted out of prejudice against Travellers. Much of the delay can be explained on the basis of administration and its burdens coupled with the fact that the applicants, having moved into Lynch’s Lane, began to reassert entitlements in writing only after a health crisis. South Dublin County Council does, in fact, have a traveller accommodation programme which was adopted by the County Council at its meeting held on 9th May, 2005. At that stage they were either planning or had completed 215 Units for the accommodation of Travellers in a variety of schemes including the group housing transient halting sites and temporary halting site accommodation. In addition, the plan notes that approximately 120 families are in standard houses in mainstream Council accommodation. Those schemes that are in the course of development show that the Council is moving from accommodating Travellers in a number of very basic tarmacadam sites, with basic services, to permanent facilities where a caravan can be parked beside a day house, assigned to one family, where all the functions of living can be carried out except that bedrooms are reserved to the caravan or mobile home parked nearby. No doubt the Council could, or perhaps should, do more. That however, is not an issue for the court. What is at issue here is as to whether there has been a breach by them of their legal duties towards the applicants or whether there have been failures by the other State bodies contributing to same.
The Equality Acts
11. Both counsel for the Attorney General and for South Dublin County Council have argued that there is no unequal treatment in the provision of accommodation offered pursuant to statute to the applicants. Fundamentally, they argue that the Court, in adjudicating on this judicial review, is not entitled to have any regard to the provisions of the Equal Status Act, 2000 and the Equality Act, 2004. The rights and obligations therein created, it is argued, belong only within the scheme created by those Acts and administered within the mechanisms set up by them. Prior to the Equal Status Act, 2000, a person selling a house would have been entitled to advertise it in the newspapers as being for sale only to a purchaser of a particular Christian denomination or an individual over 60 years of age. The Act of 2000 announces itself, in its long title, as a measure to promote equality and to prohibit discrimination whereby members of the public will have general access to goods and services. Most importantly, the Act has mechanisms for investigating and remedying discrimination through the Equality Authority, which it sets up. The applicants are clearly members of the “Traveller community”, which the Act, by s. 2, defines as “the community of people who are commonly called Travellers and who are identified (both by themselves and others) as people with a shared history, culture and traditions including, historically, a nomadic way of life on the island of Ireland”. Discrimination occurs, within the meaning of the Act, where one person is treated less favourably than another person. There can be good reasons for discrimination. For instance, one does not pick an elderly man as part of an international sprinting team. The discrimination that is prohibited is therefore described in the Act. It includes gender, marital status, family status, sexual orientation, religious belief, age, disability, ethnic origins, membership of the traveller community or victimisation because a complaint has been made by that person under the Acts; s. 3 of the Equal Status Act, 2000 as amended by s. 48 of the Equality Act, 2004. This kind of discrimination is prohibited within a range of human activities including the sale and renting of accommodation, the provision of goods and services, and within clubs and educational establishments. Part 3 of the Act of 2000, as amended, deals with enforcement. Section 21 provides that a person who claims that discrimination has been directed against them “may…seek redress by referring the case to the Director”: that is the person in charge of the Equality Authority set up by the Act. The case is then, subject to time limits and other procedural matters, investigated and may be subject to mediation and ultimately decision; s. 25 of the Equal Status Act, 2000 as amended by s. 59 of the Equality Act, 2004. Redress may be ordered under s. 27 of the Equal Status Act, 2000 as amended by s. 61 of the Equality Act, 2004. There may be compensation or a mandatory order. Thereupon the matter may be appealed to the Circuit Court; s. 28 of the Equal Status Act, 2000. From there an appeal may be taken on a point of law to the High Court. Under the scheme of the Acts, this Court could have been involved earlier, pursuant to s. 23 of the Equal Status Act, 2000, as amended by the Equality Act, 2004. This creates a legal norm whereby an injunction may be granted by the High Court, on the application of the Director, in respect of discrimination, which is called prohibited conduct, which is likely to re-occur. The Equality Act, 2004 recites in its long title that it is passed into law, in part, for the purpose of implementing certain European Union Directives. So, for instance, s. 64 inserts a new s. 38A in the Equal Status Act, 2000 providing for a reversal of the burden of proof and this accords with Article 8 of Council Directive 2000/43/EC of 29th June, 2000.
12. In my judgment, the Equal Status Acts, 2000 – 2004 do not create new legal norms which are justiciable outside the framework of compliance established by those Acts. Prior to the Local Government (Planning and Development) Act, 1963 one could lawfully turn one’s house from being a family home into a block of apartments. Subject to tort laws relating to nuisance, one could establish a factory or workshop in one’s back garden. Many activities which involved the development of land would also have required one to obtain a licence, for instance to run a slaughter house, but these were incidental to one’s general right to develop one’s property as one wished. Prior to the Unfair Dismissals Act, 1977, the only right that an employee would have in respect of his or her employer was for a period of notice to be given of dismissal, as specified in the contract of employment, or such as were implied by law where the contract was silent. There was no recognition that an employee had a right to work or had any quasi-proprietary interest in their job; see Redmond, Dismissal Law in Ireland (Butterworths, Dublin, 1999) 3 – 27. The Unfair Dismissals Act, 1977 established such rights and, like the Equal Status Acts, 2000 – 2004, set them up within a framework providing for a specific tribunal enforcing new legal norms and with particular rights of appeal to specified courts in particular circumstances. The difference between the Unfair Dismissal legislation and the Equal Status Acts, 2000 – 2004 is that under the Unfair Dismissal Act, 1977, a person must opt to choose between a claim for wrongful dismissal pursuant to his employment contract, or for unfair dismissal under the Act. Wrongful dismissal would involve litigation in the ordinary courts, which historically have dealt with all the questions related to contract, whereas by claiming unfair dismissal one would come under the special tribunal established by that Act.
13. Article 34.3.1 of the Constitution provides that “The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal.” It is on this basis that the applicant claims that the rights available to him under the Equal Status Acts, 2000 – 2004 may be pleaded and determined in judicial review. In Tormey v. Ireland [1985] I.R. 289, Henchy J. at 295 analysed this provision of the Constitution in the light of the remainder of Article 34 and in the light of the Constitution as a whole. He said:-
“Article 34, s. 3, sub-s. 4 amounts to a recognition of the fact that the High Court is not expected to be a suitable forum for hearing and determining at first instance all justiciable matters. Apart from practical considerations, it would seem not to be in accordance with the due administration of justice underlying the Constitution that every justiciable matter or question could, at the instance of one of the parties, be diverted into the High Court for trial. For example, the right given by Article 38, s. 2 of the Constitution to provide for the trial of minor offences in the District Court must imply that it would not be open to a prosecutor or a defendant in any such case to opt for a trial in the High Court. Fundamental fairness, the right to equality before the law and compliance with the basic purpose of Article 38, s. 2 would all seem to require that it should not be an option of one of the parties to such a prosecution to frustrate a trial in the District Court by asserting a constitutional right to a trial in the High Court.”
14. Earlier, Henchy J. referred to the wording of Article 34.3.1 as giving jurisdiction to the High Court to determine “all matters and questions” as being required to be read “all justiciable matters and questions”. Many of the rights and obligations created by modern statute were never justiciable until they were created by the passage of legislation. Some legislation consolidates existing rights in a code form while others interfered with the general freedom of contract by establishing, for instance, that particular terms of contracts in particular circumstances may be unfair. These Acts tag onto the existing law, by way of amendment or tidying up, and divert the law in a particular direction. Such legislation contemplates that the courts are to be used for the settling of controversies. Where, however, an Act creates an entirely new legal norm and provides for a new mechanism for enforcement under its provisions, its purpose is not to oust to the jurisdiction of the High Court but, instead, to establish new means for the disposal of controversies connected with those legal norms. In such an instance, administrative norms, and not judicial ones are set: the means of disposal is also administrative and not within the judicial sphere unless it is invoked under the legislative scheme. In the case of the Planning Acts, in employment rights matters and, I would hold, under the Equal Status Acts, 2000 – 2004, these new legal norms and a new means of disposal through tribunal are created. This expressly bypasses the courts in dealing with these matters. The High Court retains its supervisory jurisdiction to ensure that hearings take place within jurisdiction, operate under constitutional standards of fairness and enjoy outcomes that do not fly in the face of fundamental reason and common sense. In some instances, the High Court has declined jurisdiction on the basis that a forum established by law, over which it exercises supervisory jurisdiction, as above, is a more appropriate forum. In Deighan v. Hearne [1986] 1 I.R. 603 at 615, Murphy J. declined to engage in a tax assessment of the plaintiff in favour of the administrative tribunal established in this regard. He felt the jurisdiction of the High Court would only come into play in the most exceptional circumstances because legislation provided a constitutional procedure “competently staffed and efficiently operated to carry out that unpopular but very necessary task”. In my judgment it is no function of the High Court, at first instance, to adjudicate on planning matters, to assess income tax, to decide on unfair dismissal or to decide whether there has been unequal treatment. I allow that there is a category of legislation which creates specific rights under statute and the breaches of which can be pleaded as tortious liability as breaches of statutory duty. An example of this is the Safety and Industry Acts. These create conditions whereby workers may be safely employed, breaches of which are criminal offences. A failure to comply with these is not simply a crime triable before the court given jurisdiction in that regard but is also a breach of the workers rights and which can give rise to damages. Francis Bennion in his “Statutory Interpretation” (Butterworths, London, 2002) states at p. 53 that if no criminal sanction is provided for a breach of a statute the inference is that a civil sanction is intended. Here, instead of a criminal sanction, there is a complete mechanism for resolution.
15. The general test developed in the law of tort was stated by Lord Diplock in Lonrho Limited v. Shell Petroleum Co. Limited and Others [1982] A.C. 173, [1981] 2 All E.R. 456 where he indicated that the existence of a statutory provision could give rise to a right in damages:-
1. Where the provision is designed for the protection or benefit of a particular class of persons and a member of that class is injured as a result of the breach; or
2. Where the provision creates a public right, but the plaintiff has suffered particular injury over and above the type of harm suffered by the public generally.
16. The ultimate test, however, is a matter of statutory interpretation. The issue is whether the legislature intended that private law rights of action should be conferred upon individuals where breaches of statutory duty are shown to have occurred. Of itself, the fact that a particular provision was intended to protect certain individuals, such as member of the Irish Traveller community, is not sufficient to confer a right of action before a court. Legislation creates obligations. All of the case law concerned with private law rights centres around categories of legislation where the right of enforcement is not specifically stated to be in the context of a civil claim. Often, the breach is triable before a criminal court. In addition, rights of action in private law may be created where the breach of the protection has caused an injury to the persons in respect of whom it was designed to provide protection and where the legislation creates a public right where the plaintiff has suffered a particular injury as a result of the breach. The fundamental rule of statutory interpretation remains, however, that stated by Tenterden C.J. in Doe d, Bishop of Rochester v. Bridges [1824-34] All E.R. Rep. 167 at p. 170:-
“Where an act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.”
The rules as to determining tort liability arise by virtue of an exception to that rule. I note that in amending s. 21 of the Equal Status Act, 2000, s. 54 of the Equality Act substitutes for the words “to seek redress under this Act”, with “to seek redress by referring the case to the Director”. Here, a specific legal obligation is created for the first time by statute, a mode of enforcement is set up through an agency which was thereby created and limited rights of access to the courts are created. In my judgment this amounts to the creation of a separate legislative and administrative scheme which does not create a series of private rights which are either enforceable in damages, or outside the context of that scheme.
17. I am fortified in this conclusion by a statement made by Fennelly J. in the course of his judgment in Maha Lingam v. Health Services Executive, (Unreported, Supreme Court, 4th October, 2005) where, in the context of a claim which, in part, relied on the Protection of Employee’s Fixed Term Work Act, 2003 he stated:-
“However, having looked at that Act the Court cannot see that it significantly alters the matter. It is unnecessary to go into it except that the general policy of the Directive and the Act seems to be to protect employees who are employed on short term fixed term contracts and who have been employed on such basis for a certain minimum number of years, either three or four years, and, accepting for the sake of the purpose of the present case, that the plaintiff is employed under such a contract of employment, the question would be whether he could make out a case to justify the grant of an interlocutory injunction. There are two major obstacles in place of the plaintiff/appellant in this context; firstly that it is the implementing Act, the 2003 Act, contains, like the Unfair Dismissals Act, its own statutory scheme of enforcement and it does not appear to be envisaged by the Act that it was intended to confer independent rights at common law or to modify in general the terms of contracts of employment to be enforced by the common law courts; and the second is that in any event the general terms and provisions and policy of the Act and of the Directive seems to be to put persons who were in such short term contracts in the same position as if they were persons who were on fixed long term contracts but in neither event does it appear to interfere with the ordinary right and obligation of the employer to terminate the contract on the giving of reasonable notice and for that reason the matter comes back within the general ambit, therefore, of the sort of remedy that would be available to the plaintiff/appellant for the termination of the contract.”
18. For the sake of removing doubt, if I were to analyse the case of the applicants under the Equal Status Acts, 2000 – 2004, I do not feel that I could hold that their treatment has been discriminatory. My reasons are as set out below.
The Right to be Housed
19. The Housing Act, 1966 consolidated existing legislation as to the provision of housing. It also cast a duty on local authorities to survey the need for housing within their functional area and to make provision, based on the scheme of priorities, whereby people who are otherwise unable to afford housing might be offered accommodation at reasonable rent. Section 60 provided that it is the duty of a housing authority to make a scheme determining the priorities to be accorded to categories of persons who are in need of housing. This scheme was a public document which could be inspected; s. 60(9). The primary objectives of this section were replaced by s. 9 of the Housing Act, 1988, which recasts s. 60, which it repealed. Section 9 makes it the duty of a housing authority to assess the needs of the homeless, of Travellers, of those in unsuitable accommodation, of young people without family support, of the sick and the elderly, and those without adequate means. This includes those who may later enter the functional area of the authority. Under s. 10 further powers to offer accommodation, such as Bed & Breakfast accommodation, are conferred on the housing authority. Part IV of the Act of 1966 is concerned with the elimination of slum and tenement dwellings and, in that regard, empowers local authorities to serve orders for repair or demolition and to bring prosecutions in respect of related offences. Section 56 of the Act of 1966 provides:-
“56 – (1) A housing authority may erect, acquire, purchase, convert or reconstruct, lease or otherwise provide dwellings (including houses, flats, maisonettes and hostels) and such dwellings may be temporary or permanent.
(2) A housing authority may, in connection with dwellings provided, to be provided or which in the opinion of the authority will in the future require to be provided under this Act, provide and, if they think fit, maintain in good order and repair roads, shops, playgrounds, places of recreation, parks, allotments, open spaces, sites for places of worship, factories, schools, offices and other buildings or land and such other works or services, as will, in the opinion of the authority, serve a beneficial purpose either in connection with the requirements of the persons for whom the dwellings are provided or in connection with the requirements of those persons and of other persons.”
20. The following section of the Act of 1966 allows for the provision of sites for housing in a similar way. There is no specific mention in the Act of 1966 of the Irish Traveller Community. One notes however, the reference in s. 56 to temporary accommodation which could, although it is not specified, include a mobile home or caravan. Section 13 of the Housing Act, 1988 applies only to those who belong “to the class of persons who traditionally pursue or have pursued a nomadic way of life.” The section was replaced by s. 29 of the Housing (Traveller Accommodation) Act, 1998. It is to be noted that the definition does not confine the rights enabled by the section to those who have pursued this lifestyle on this island, as does the Equal Status Acts, 2000 – 2004. It applies, on the face of it, to all traditional nomads. As substituted by s. 29 of the 1998 Act, s. 13 of the 1988 Act reads, as to its material part:-
“13 – (1) This section applies to persons belonging to the class of persons who traditionally pursue or have pursued a nomadic way of life.
(2) A housing authority may provide, improve, manage and control sites for caravans used by persons to whom this section applies, including sites with limited facilities for the use by such persons otherwise than as their normal place of residence or pending the provision of permanent accommodation under an accommodation programme within the meaning of s. 7 of the Housing (Traveller Accommodation) Act, 1998, and may carry out any works incidental to such provision, improvement, management or control, including the provision of services for such sites.
(3) Section 56(2) of the Principal Act shall apply in connection with the provision of sites under this section as it applies in connection with the provision of dwellings under that section.”
21. Section 56(2) of the Housing Act, 1966, enables the authority to maintain buildings and services ancillary to housing. Section 13(7) of the Act of 1988, as substituted by s. 29 of the Act of 1998, defines a caravan as:-
“Any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by towing or transport on a vehicle or trailer, and includes a motor vehicle so designed or adapted and a mobile home, but does not include a tent.”
A site with limited facilities is defined by reference to the temporary nature of the stay but which, in that regard, must have sufficient water, a hard parking surface and facilities for waste disposal. Just as under the Housing Act, 1966, there was a duty to make an assessment of housing needs, so under the Housing (Traveller Accommodation) Act, 1998, Part II provides a duty on a housing authority to assess the need for sites and to adopt an accommodation programme for Travellers. Under
s. 25, the authority may make a loan for the acquisition or repair of a caravan, or to purchase a site. Under s. 15 of the Housing Act, 1988, as inserted by s. 30 of the Housing (Traveller Accommodation) Act, 1998, the Minister may pay to a housing authority a grant or subsidy in respect of:-
“(a) The provision of dwellings (including houses, flats, maisonettes and hostels) by the authority;
(b) The improvement or reconstruction of dwellings provided by the authority;
(c) The provision of caravans or the provision, improvement or management by the authority of sites for caravans referred to in s. 13 (as amended by the Housing (Traveller Accommodation) Act, 1998) for persons to whom that section applies;
(d) The acquisition of land for the provision of dwellings or sites referred to in this section;
(e) The carrying out of ancillary works … ; and
(f) The provision of assistance under s. 5 to a body approved of by the Minister for the purposes of that section.”
22. Counsel for the applicants have argued that the foregoing legislation, which I have referred to in some detail, comprises a scheme for the housing of members of the Irish Traveller Community and of settled persons on an unequal basis. It is claimed that this amounts to discrimination. Further, it is argued that this legislation has running through it a division as to the accommodation requirements of Travellers and of members of the settled community. Once, it is asserted, a person who has pursued a nomadic life opts to be treated as such, then the relevant legislation allows that person to make an untrammelled choice for caravan accommodation: they cannot be housed in bricks and mortar unless they make a choice to opt out of caravan accommodation. The inequality claimed arises from the fact that a Traveller will only receive a site, with services, whereas a non-Traveller will receive accommodation. I cannot accept either argument.
23. Under the scheme of the Acts there was a duty cast upon housing authorities to work on the elimination of homelessness within their functional areas according to a scheme of priorities set out by the Oireachtas. Homelessness is, of its nature, a measure requiring an emergency response. I cannot accept that it was the intention of the Oireachtas to establish a rigid division between members of the Irish Traveller Community and persons who are settled by providing that the problem of homelessness would be dealt with by the authority always being required to provide only caravan or site accommodation to Travellers, at their option, but bricks and mortar accommodation to settled persons. It seems to me that the resolution of this problem hinges around the issue as to how homelessness is defined. Section 2 of the Housing Act, 1988, provides that definition:-
“2. A person shall be regarded by a housing authority as being homeless for the purposes of this Act if –
(a) there is no accommodation available which, in the opinion of the authority, he, together with any other person who normally resides with him or who might reasonably be expected to reside with him, can reasonably occupy or remain in occupation of, or
(b) he is living in a hospital, county home, night shelter or other such institution, and is so living because he has no accommodation of the kind referred to in paragraph (a),
and he is, in the opinion of the authority, unable to provide accommodation from his own resources.”
24. There is no distinction drawn in this section between accommodation available to a member of the Irish Traveller Community and to a member of the settled community. The same definition applies to both. I would find it impossible to hold that there is an untrammelled statutory right vested only in members of the Irish Traveller Community to opt in all and any circumstances for caravan accommodation and to reject bricks and mortar. Such an interpretation would mean that those who are very elderly, very infirm or very ill and who would be unsuited, for that reason alone, to caravan accommodation would be entitled to caravans adapted to their needs; and adapted ever more extremely as their disability grew. Such a right would be in contradistinction to the ordinary adaptations which every member of the community must make as they are stricken by age, infirmity or illness. People, in the ordinary course of life, often leave the homes which they occupied with their family for flat accommodation, for single storey accommodation, for a retirement village or for a nursing home. Often, this is a traumatic transition. If the statutory scheme required me to make a distinction conferring a special right on Travellers always to be housed in a caravan, I would do so but the definition of a homeless person, as set out in s. 2 of the Housing Act, 1988, apart from any other provision, requires that I should not.
25. Counsel for the Attorney General has argued that homelessness does not depend alone on the accommodation which a person is occupying, but depends as well on what accommodation is available to him or her: once, within the meaning of s. 2 of the Housing Act, 1988, there is accommodation available which a homeless person can reasonably occupy, the state of homelessness ends. I agree with this. It is impossible to ignore that to be homeless, under the Acts, one is required to have not just no accommodation but none that one could reasonably occupy. Living, as they are, in a caravan which is damp and without the provision of an indoor toilet which they need and which is unsuited to their state of health, the applicants are homeless. Once, however, a reasonable offer has been made by the housing authority which the applicants choose not to take up, their state of homelessness has ended.
26. The further assertion that there is inequality of treatment between members of the Irish Traveller Community and those who are settled is based on the premise that a settled person, applying for a house and being successful, will receive a roof over his or her head, whereas a traveller will not. In accordance with s. 15 of the Housing Act, 1988, as amended by s. 30 of the Housing (Traveller Accommodation) Act, 1998, there is, in fact, a scheme of loans and grants for the purchase of caravans pursuant to circular letter TAU 1A/2000 of the 18th October, 2000, from the Department of the Environment and Local Government. This requires that a caravan must be purchased from a reputable supplier who is registered for VAT, that it is value for money and that it will be located in a bay or other site provided by the Local Authority. According to documents handed in during the course of the hearing, a scheme is available whereby loans may be made under s. 25 of the Housing (Traveller Accommodation) Act, 1998, which empowers local authorities to give loans for the provision of private Travellers specific accommodation; SI 37 of 2000 provides that a loan of up to €6,350, repayable over one to five years, together with a once off grant of €640 is available and a special, though small, grant is available only to Travellers for the purchase of a new or second hand house in the amount of €3,810. Circular letter TAU 4/2002 and circular letter TAU 1/2000 explain that the purpose of the scheme is “to encourage initiatives to address the needs of traveller families who live in substandard caravans or in over crowded conditions”.
27. There is equality of treatment between members of the Irish Traveller Community and the settled community vis à vis the provision of housing in bricks and mortar. Anyone, without distinction, will have an entitlement to same upon being homeless. Members of the Irish Traveller Community have a special and unique additional provision made for them in the form of caravan sites, site works and loans for the purchase of caravans. The fact that this additional option is available only to Travellers, from whatever country, does not mean, in my judgment, that it can be exercised in all and every circumstance so as to apparently continue the state of homelessness that gives rise, in the case of all citizens, to the requirement of the local authority to seek to offer accommodation to homeless persons that they might reasonably be expected to reside in.
28. This is the first case in which a claim has been made by a member of the Irish Traveller Community to be provided with more than a site. In all the previous cases to which I have been referred, the argument has been as to whether there is a statutory duty on a housing authority to make provision for sites for members of the Irish Traveller Community and as to whether in particular circumstances, that duty has been fulfilled. In McDonald v. Dublin County Council (Unreported, Supreme Court, 23rd July 1980), it was held that the offer of provision of chalet accommodation to the plaintiff, was in the circumstances, a reasonable discharge by the defendant of its duty to house the plaintiff. In O’Reilly and Others v. Limerick County Council and The Attorney General and Human Rights Commissioner, (Unreported, High Court, 29th March, 2006), it was held by MacMenamin J. that a choice to resume accommodation in unacceptable conditions may not disentitle an applicant to relief and that there is a duty on a county council to fully advise those members of the Irish Traveller Community who were uneducated as to their full rights with regard to housing.
29. Since University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February, 1991), a line of authorities have followed the judgment of Barron J. in that case that the scheme of the Housing Acts contemplates not only that an assessment of housing needs should be made in relation both to the Irish Traveller Community and to settled persons, but that it should be acted upon. In two cases, orders were made by the High Court that serviced halting sites should be provided by housing authority respondents within a period of 12 months. In County Meath V.E.C. v. Joyce and Others [1994] 2 ILRM 210, Flood J. ordered that Meath County Council should bring their assessment of housing and serviced camp site needs up to date and to provide sites within 12 months of the date of the perfection of the order he made in that regard. In John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10 June 1994), Costello J. made an order that the County Manager should carry out works at specified locations providing for hard core sites, an electricity supply and drainage to certain members of the Irish Traveller Community. All of these judgments followed the decision of Barron J. in University of Limerick v. John Ryan and Others and the County Council of the County of Limerick, (Unreported, High Court, 21st February 1991). Having first decided that s. 13 of the Housing Act, 1988 imposed a duty to provide caravan sites, as opposed to merely empowering a housing authority to do so, Barron J. went on:-
“Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends in the case of those to whom s. 13 applies to the provision not of dwellings but of caravan sites. It is I think significant that s. 56(2) of the 1966 Act is to apply to serviced halting sites as it does to dwellings. In my view, s. 13 imposes on the local authority an obligation to provide serviced halting sites to those who require them instead of conventional dwellings in the same way as s. 56(1) requires them to provide the latter. Such obligation is, of course, subject to all the provisions which limit the obligations of the housing authority under s. 56 of the 1966 Act. The section does however mean that the housing authority cannot meet its statutory obligations by offering only a conventional dwelling to Travellers. It must bring into force the estimate, assessment and scheme respectively required by ss. 8, 9 and 11. If in accordance with the result of these matters, the housing authority has obligations in accordance with its resources for persons who are Travellers, then those obligations must be fulfilled. In the case of those persons to whom s. 13 applies and who do not wish to be provided with dwellings, the obligation must be fulfilled by the provision of caravan sites. As a matter of construction of s. 13, it seems to me that the statutory obligation to provide a caravan site for Travellers is identical to the statutory obligation to provide dwellings for those of the settled community. The only difference in the obligation lies in the nature of the housing to be provided. Whether the person in need is a traveller or a member of the settled community, once the duty exists it must be performed. In the one case, it is performed by providing a caravan site; in the other by providing conventional housing. I refer only to the position of those Travellers who live permanently in a particular area and whose need for a caravan site is as a permanent home. The provision of a temporary halting site or sites is a different matter and does not arise in the present case.”
30. As a matter of fact, the respondent Council has made available to the applicants a halting site on a temporary basis. It is the intention of the Council to redevelop the site in which they currently reside so as to make provision for them on a permanent basis so that their caravan can be used in conjunction with a day house as explained above. This accommodation will be available within a period of 18 months from the date of this judgment. There has therefore been no failure by the respondent housing authority to fulfil its duty under the relevant provisions of the Housing Acts. It would be desirable were this accommodation to be available immediately. The housing authority, however, has obligations only in accordance with its resources and according to the scheme of priorities set out by it.
Human Rights
31. The applicants argue that their status as members of the Irish Traveller Community means that special arrangements are required to be made for them, even apart from the statutory provisions already referred to. It has been argued that the scheme under the Housing Acts operates on the basis of an untrammelled choice to be made by a member of the Irish Traveller Community between accommodation in bricks and mortar and in a caravan. It is urged that this interpretation be placed upon the Acts because of s. 2 of the European Convention on Human Rights Act, 2003. This provides:-
“2(1) In interpreting and applying any statutory provision or rule of law, the court shall, insofar as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
(2) This section applies to any statutory provisions or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”
32. It is further argued that the respondents, and in particular the housing authority, have an obligation to treat the applicants in a special way having regard to their status as members of the Irish Traveller Community and that this obligation arises by virtue of s. 3 of the European Convention on Human Rights Act, 2003 which reads:-
“3(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
33. Under the Act, judicial notice has to be taken by all courts of the Convention provisions and the decisions in relation thereto. If in any proceedings before the High Court, or the Supreme Court exercising its appellate jurisdiction, it emerges that a provision of Irish legislation is incompatible with any Article of the Convention, then a declaration of incompatibility should be made under s. 5 of the Act of 2003. This does not affect the continuing operation of the law. An ex gratia payment of compensation may be made once an application for compensation by a party wronged has been made to the Attorney General. It is not stated, but it is to be inferred, that where a declaration of incompatibility with the European Convention on Human Rights has been made by a court that a political will may exist to alter relevant legislation in favour of compatibility.
34. The European Convention on Human Rights was agreed between the signatory governments in Rome in November, 1950. Its text sets out the fundamental rights which the citizens of Europe are entitled. The Articles pleaded here were Articles 8 and 14. Article 14 prohibits discrimination and provides:-
“14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Article 8 secures rights whereby the State must respect private and family life. This provides:-
“8. – (1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 3 is also relevant in that it prohibits torture. It states:-
“3. No one shall be subjected to torture or to inhumane or degrading treatment or punishment.”
35. These Articles may be contrasted with Article 40.3 of Bunreacht na hÉireann which provides:-
“1. The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2. The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
36. The guarantee in Article 40.3 is a promise never to infringe a right. Thus, there can be no laws passed in Ireland which infringe constitutional rights or, in the case of a conflict, which do not draw a reasonable balance between the interaction of two differing rights. When it comes, however, to taking positive action to defend and vindicate the personal rights of the citizen, the text of the Constitution makes it clear that the State is only obliged to do as much as is practicable, or in the original text “sa mhéid gur feidir é”. It is easier to find a circumstance where a State body is actively infringing on someone’s constitutional rights than to define the circumstances under which the State must positively intervene to uphold a right. For instance, if a law were passed, or an administrative measure adopted, providing that members of the Irish Traveller Community could never be housed in communities that were settled, this would be a positive denial of their constitutional right as human persons to be treated equally before the law. The State cannot set out to infringe constitutional rights: but when is it obliged to intervene to uphold them? Many rights could be set at nought by reason of the inability of a citizen to provide the means to exercise them. There is certainly a constitutional right to life and a provision denying access to particular medicines which are necessary for the exercise of that right would be unlawful but where a citizen did not have the means to purchase necessary medicine would that mean that the State had an obligation to intervene by providing him or her with some form of welfare in that regard? The answer may be that the State could, in certain circumstances, have an obligation consistent with its financial and administrative commitments. A similar problem arises in relation to the European Convention on Human Rights. It is to be noted that there is no positive obligation to intervene to uphold private and family life in Article 8 and that, expressly, the text forbids “interference by a public authority with the exercise of this right”. The courts of England and Wales and the European Court of Human Rights have attempted to grapple with this issue without formulating a principle as to when State welfare provision may be necessary in order to allow for the meaningful exercise of the rights protected. It may be that there is a positive duty cast upon public authorities to intervene under Article 8, consistent with the proper disposal of available resources, where special circumstances cause a direct interference of a serious kind in family life and where the subject of that interference has no available means to alleviate the absence of that right. Counsel for the applicant argued that no more than practicable assistance could be offered from State resources and that a citizen has a general obligation to have recourse to welfare as a last resort only.
37. In Anufrijeva and Anor v. Southwark London Borough Council [2004] 1 QB 1124 the Court of Appeal of England and Wales dealt with three different cases that concerned the right to a family and private life under Article 8 of the Convention. Lord Woolf C.J. noted at para. 25 in relation to the problem of deciding when a positive obligation of intervention was cast on State authorities, apart from a duty not to interfere:-
“Strasbourg provides little guidance in this area, for we are not aware of any case where the Court of Human Rights has held a state in breach of the Convention for failure to provide housing to a certain standard, or for failure to provide welfare support. … The dearth of authority is evidenced by the fact that counsel on each side attached importance to two recent decisions, which seem to us of only peripheral significance.”
38. These cases were Botta v. Italy (1998) 26 EHRR 241 where a physically disabled person failed in a claim under Article 8 on the assertion that his rights were infringed because there were no facilities to enable him to get down into the sea in a resort distant from his home. In Zehnalová and Zehnal v. Czech Republic, Reports of Judgments and Decisions 2002 – V, p. 337, a complaint under Article 8 failed where the national authorities had failed to provide access for physically disabled persons to all public buildings. This, the court held, was to invoke rights which were “too wide and indeterminate” as to give “convincing proof of an attack on their private lives”. It may be speculated that some minimum welfare provisions may constitute a positive obligation inherent in effectively respecting private and family life. In Anufrijeva, the Court of Appeal offered these observations, at paras. 43 to 45, as to the formulation of a useful legal test:-
“… Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in R(J) v. Enfield London Borough Council [2002] EWHC 735 (Admin), where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants’ home in Bernard and we consider that it was open to Sullivan J. to find that Article 8 was infringed on the facts of that case … insofar as Article 8 imposes positive obligations, these are not absolute. Before inaction can amount to a lack of respect for private and family life, there must be some ground for criticising the failure to act. There must be an element of culpability. At the very least there must be knowledge that the claimant’s private and family life were at risk: see the approach of the Court of Human Rights to the positive obligation in relation to Article 2 in Osman v. United Kingdom (1998) 29 EHRR 245 and the discussion of Silber J. in N. [2003] EWHC 207 (Admin) at 126-148. Where the domestic law of a State imposes positive obligations in relation to the provision of welfare support, breach of those positive obligations of domestic law may suffice to provide the element of culpability necessary to establish a breach of Article 8, provided that the impact on private or family life is sufficiently serious and was foreseeable.”
39. In this regard, I note that Costello J. in John O’Brien and Others v. Wicklow Urban District Council and Wicklow County Council, (Unreported, High Court, 10th June, 1994) stated that conditions which are totally unacceptable in a Christian community and which could be relieved if the statutory powers of a local authority were exercised, and without any great expense can give rise to an obligation to intervene, he said:-
“I am also satisfied that the County Manager has power to deal with an emergency and that this power in the circumstances of a case now amounts to a duty.”
40. I would find it impossible to apply the tests of culpability and of inhuman treatment where a number of offers of housing have been made, and where the best form of halting site accommodation is to be made available to the applicants within 18 months.
41. It is argued, in addition, that the housing legislation should be interpreted in favour of the applicants. The limits to which the interpretation requirement set out in the corresponding provision of the United Kingdom Human Rights Act, 1998 may be taken are to be found in the decision of the House of Lords in Ghaidan v. Godin-Mendoza [2004] 3 WLR 113 where it was held that a definition of spouse as extending to a person living with a tenant “as his or her husband or wife” could encompass a surviving homosexual partner who is not, under the decision, to be put in any less secure a position than the survivor of a heterosexual relationship in respect of statutory tenancy rights.
42. It has been urged on the Court that what is reasonable in terms of accepting or refusing accommodation, within the definition of homelessness in s. 2 of the Housing Act, 1988, must take into account the particular circumstances of the applicants living, as they have, all their life either as nomads on the side of the road or, for the about the last ten years in various halting sites. Circumstances can occur where persons who have led a nomadic way of life may find it difficult to accept, on a permanent basis, settled accommodation. It is not, however, what the applicants are being asked to do here. In asserting their rights to nomadic accommodation, they are being met with an answer, from the Council, that a symbolic vestige of their tradition may be preserved in the shape of a site for their caravan with a day house, but only after a reasonable interval of time for the purposes of re-development. In the meanwhile it is not unreasonable that the available accommodation is in bricks and mortar and nor is it unreasonable that the County Council will not go and immediately buy them a plumbed, centrally heated mobile home with electricity supply: this is not in accordance with the scheme of priorities set down by the Council under the Housing Acts and its provision is outside the relevant regulations made under s. 15 of the Housing Act, 1988, as amended.
43. A duty to take into account the sensitivities of members of the Roma communities, whether Gypsies from the neighbouring kingdom, members of the Sinti from Central Europe, or members of our own Irish Traveller Community, can arise when interpreting administrative measures. These obligations are not, however, unlimited. In Chapman v. United Kingdom (2001) 33 EHRR 18 the European Court of Human rights dismissed an argument that a nomadic lifestyle gives rise to an automatic duty on States to intervene in favour of preserving this way of life, stating, at paras. 96 to 99, as follows:-
“Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life.
It is important to appreciate that in principle gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English Courts, that the provision of an adequate number of sites which the gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
The Court does not, however, accept the argument that, because statistically the number of gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to the protection of minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States.
It is important to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the Court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the Contracting States many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not of judicial decision.”
44. This decision was followed by the European Court of Human Rights in the decision in Codona v. The United Kingdom, judgment delivered on 7th February, 2006. The applicant was a Gypsy who lived with her young son and other members of her extended family in caravans. Injunction proceedings were issued against her because the site on which the caravans were placed did not have the relevant planning permission. During the course of court proceedings the applicant averred that she did not “wish to be given bricks and mortar. She has always lived in a caravan, has only spent one night in a building in her life. Mrs. Codona wishes to live in a caravan and have the support of her extended family around her”. The housing authority, on examining the case, concluded that they could only offer bricks and mortar accommodation in a bed and breakfast establishment until it could make a final offer of accommodation. The application before the Court of Human Rights was, in essence, for relief under Article 8 on the complaint that the response of the Council did not take into account her rights as a Gypsy under Article 8 of the Convention. The court held:-
“Following Chapman, the court does not rule out that, in principle, Article 8 could impose a positive obligation on the authorities to provide accommodation for a homeless Gypsy which is such that it facilitates their “Gypsy” way of life. However, it considers that this obligation could only arise where the authorities had such accommodation at their disposal and were making a choice between offering such accommodation or accommodation which was not “suitable” for the cultural needs of a Gypsy. In the instant case, however, it appears to be common ground that they were, in fact, no sites available upon which the applicant could lawfully place her caravan. In the premises, the court cannot conclude that the authorities were then under a positive obligation to create such a site for the applicant (and her extended family). Such would be to extend the positive obligation imposed by Article 8 far beyond the – limited – bounds established in previous case law. In particular, to accept that the authorities were under such an obligation would be to have the effect of imposing upon the respondent State the positive obligation to create either one or more caravan sites so as to equate supply with demand. The court recalls that this was precisely the obligation that the Grand Chamber found that the contracting states could not be said to owe in Chapman (para. 98). The court does not find that there are any compelling reasons in the present case to depart from the position adopted by the Grand Chamber in Chapman.”
45. In addition to the foregoing, I can find nothing in any other decision of the European Court of Human Rights, or of the courts in the United Kingdom or here, which would establish that the particular aspect of family life that requires to be respected in the case of a member of the Irish Traveller Community demands the provision of a new, centrally heated, plumbed caravan with electricity supply. On analysis of the relevant case law under the European Convention of Human Rights, my judgment is that the statutory entitlements of the applicants exceed any benefit that might be available to them on the basis of an interpretation of Article 8 of the European Convention on Human Rights.
46. I would add that the decisions to date show a reluctance to require State authorities to intervene with forms of welfare as an aid to the exercise of rights. Whether welfare is provided, and at what level, and in what particular circumstances, is essentially a matter of political decision. The discourse of politics in this area tends to move between the poles of urging self-reliance and of offering cradle-to-grave support. Like a family, the resources of any nation are limited and it is a matter for political and executive decision as to what resources should be committed to what problems and with what priority. A breach of legislation prescribing such an allocation, as in housing, calls for judicial intervention. Where, however, a plea is made that the court should declare the absence of welfare support to be wrong in a particular situation of itself, the applicant should show a complete inability to exercise a human right for his or her own means and a serious situation that has set the right at nought with the prospect of serious long term harm. Any proposed intervention by the court should take into account that it is the responsibility of the legislature and executive to decide the allocation of resources and the priorities applied by them.
Procedural Matters
47. Some procedural matters were pleaded in order to bar certain sections of the applicants claim. Since the substantive decision has gone against them, I can deal with these matters briefly.
48. It was claimed that as there was a conflict of evidence on the affidavits as between the applicants and South Dublin County Council, that the court should not proceed to judgment but should refer the matter for plenary hearing. I do not accept this. Insofar as any conflict existed, it was on the basis that the applicants claimed that they wished to continue to live in a caravan, and an assertion by South Dublin County Council that their age and medical condition made it entirely unsuitable that they should be accommodated in a caravan or mobile home which, of its nature, has insulation difficulty and, consequently, condensation problems. The duty cast on the High Court in judicial review is to resolve such facts as can be resolved on affidavit and to determine, on the basis of those facts, as to whether any of the reliefs sought should be granted.
49. Secondly, it was pleaded that the applicants should involve themselves, in some unspecified way, in an appeal mechanism and that, in consequence, the decision of the Supreme Court in the State (Abenglen Properties Limited) v. Corporation of Dublin [1984] I.R. 381, gave me a discretion to refuse that application. I do not accept that. Persons given statutory rights to a hearing may be able to call in aid the High Court’s jurisdiction under judicial review. The fact that an appeal might be available as an alternative can, depending on the circumstances, bar the availability of a remedy but it does not automatically exclude it.
50. Thirdly, it has been argued that a mandatory order should not issue in this case. In Minister for Labour v. Grace [1993] 2 I.R. 53 at 55, O’Hanlon J. held:-
“An order of mandamus may be granted ordering that to be done which a statute requires to be done, and for this rule to apply it is not necessary that the party or corporation on whom the statutory duty is imposed should be a public official or an official body. In order, however, for an order of mandamus to issue for the enforcement of a statutory right it must appear that the statute in question imposes a duty, the performance or non-performance of which is not a matter of discretion, and if a power of discretion only, as distinct from a duty, exists, an order of mandamus will not be granted by the court.”
As against that, I note that in the decisions cited earlier in this judgment – namely The University of Limerick v. Ryan, Mongan v. South Dublin County Council, and O’Brien v. Wicklow County Council – such an order was in fact made on the basis that a statutory duty to provide a halting site had not been complied with.
51. Lastly, I note that in T.D. v. Minister for Education [2001] 4 IR 259 the limits on the court in terms of interference with executive decision-making was set out. Hardiman J. stated:-
“I have read the judgment of Murray J. in this case and I wish to express my agreement with what he says in relation to the circumstances in which the court may make a mandatory order compelling the executive to fulfil a legal obligation. First, such a thing may occur only in absolutely exceptional circumstances ‘where an organ or agency of the State has disregarded its constitutional obligations in an exemplary fashion. In my view the phrase ‘clear’ disregard can only be understood to mean a conscious and deliberate decision by the organ of State to act in breach of its constitutional obligation to other parties accompanied by bad faith or recklessness’. Secondly, even in such circumstances, the mandatory order might direct the fulfilment of a manifest constitutional obligation but ‘without specifying the means or policy to be used in fulfilling the obligation’. Such an order, in my view, could only be made as an absolutely final resort in circumstances of great crisis and for the protection of the constitutional order itself. I do not believe that any circumstances which would justify the granting of such an order have occurred since the enactment of the Constitution 64 years ago. I am quite certain that none are disclosed by the evidence in the present case.”
52. Were it to be the case that the applicants’ statutory rights, or their human rights or constitutional rights, had been infringed a suitable order by way of declaration, at least, could have been made in this case. In the result, I am not satisfied that any such infringement has occurred.
Doherty v. Bowaters Irish Wallboard Mills Ltd.
[1968] IR 277
O’DalaighC.J.; Walsh J. 277
O’DALAIGHC.J. :
.
Mr. Justice Walsh will read the first judgment with which I wholly concur.
WALSH J. :
On the 18th June, 1964, the plaintiff was employed as a worker by the defendants in their premises at Athy in the County of Kildare. The defendants’ premises were a factory within the meaning of the Factories Act, 1955, and part of the equipment of that factory was an overhead travelling crane. On the date in question the plaintiff, in the course of his work, was struck by a load being carried on the crane when the hook, from which the load was suspended, broke and the load fell upon the plaintiff. No question of negligence on the part of the plaintiff arises. It was alleged that the accident was entirely due to the negligence of the defendants. At the trial it was contended that the defendants were negligent both at common law and because of alleged failure on their part to comply with the requirements of ss. 34 and 35 of the Factories Act, 1955. Ultimately, so far as statutory duty was concerned, the plaintiff took his stand upon the allegation that there was a breach of the provisions of s. 34 of the Act of 1955 and, for the purpose of this appeal, it is unnecessary to consider the allegation of common-law negligence.
It was also admitted that the accident was due to a defect in the hook of the crane, but it was contended on behalf of the defendants that this was a latent defect of which they did not know, and could not have known, and that the breaking of the hook was not due to any negligence or breach of statutory duty on their part. There was no suggestion that the fracture in the hook was due to anything other than a defect in the hook itself. While there was evidence given of periodic inspections of the crane and of the parts and of the different types and methods of inspection which were available for testing the properties and strength of hooks, such as the one in question, during their working lives, and while there was evidence of the appearance of wear on the bearing surface of the hook in question, it was not necessary to consider this evidence in this appeal. On the assumption, which was the assumption of fact most favourable to the defendants, that the failure of the hook was due to a defect which was not a patent defect but was caused by something in the nature of metal fatigue, as was contended by the defendants, the learned trial judge ruled that, as a matter of law, the obligation imposed upon the defendants by s. 34, sub-s. 1(a), of the Act of 1955 was an absolute duty and that, as was agreed upon the evidence, since on the occasion of the accident the hook proved not to be of adequate strength, the defendants had failed in their statutory duty not to use the hook unless it was of adequate strength.
Sect. 34, sub-s. 1(a), of the Act of 1955 provides that “a chain, rope or lifting tackle shall not be used unless it is of good construction, sound material, adequate strength and free from patent defect.” Sub-sect. 3 of s. 34 defines “lifting tackle” for the purpose of that section as meaning “chain slings, rope slings, rings, hooks, shackles and swivels.”
Consequent upon the ruling of the trial judge the case went to the jury on the question of damages only. The defendants’ appeal is upon the grounds that the trial judge was wrong in law in his ruling and that the damages of £72,500, assessed by the jury, were unreasonable and excessive.
In this Court it has been submitted on behalf of the defendants that s. 34, sub-s. 1(a), of the Act of 1955 does not impose an absolute liability because, it is said, in contrast to the provisions of s. 33, sub-s. 1, of the Act which deals with hoists or lifts, there is no obligation created to do anything in the nature of maintaining the hook; and that any obligations of this type created by s. 34 of the Act are confined to those set out in paras. (d), (e) and (f) of sub-s. 1 of s. 34 which requires, at para. (d), that the lifting tackle should be thoroughly examined by a competent person at least once in every period of six months and, at para. (e), that the lifting tackle shall not be taken into use in a factory for the first time unless it has been tested and thoroughly examined by a competent person and a certificate of such a test and examination, specifying the safe working load, has been obtained and, at para. (f), that the lifting tackle shall be annealed at least once in every fourteen months unless a certificate of exemption is granted by the Minister for Industry and Commerce. It was submitted that the words “shall not be used”in para. (a) of s. 34, sub-s. 1, refer only to the first user or the first putting into use of the hook and do not impose a continuing obligation.
It was also submitted on behalf of the defendants that the words “and free from patent defect” qualified all the preceding requirements. It was submitted that the Scottish case of Reilly v. Beardmore & Co. (1) (which ruled that a statutory provision, corresponding to our s. 34, sub-s. 1(a), imposed an absolute liability) was distinguishable on the ground that that case was in fact one of a patent defect. That case, which dealt with the failure of a rope, does refer to the fact that fraying on the rope had been noticed some days before the accident. It is not clear, however, that that was the basis of the decision although certainly it was a factor taken into consideration, but one could not say from a perusal of the judgments that the court would not have held the duty to be an absolute one without such evidence.
I do not think that the contrast with s. 33, sub-s. 1, which provides that hoists and lifts “be properly maintained,”really advances the defendants’ case. It is not contested that this duty to maintain is an absolute duty and in s. 2 of the Act of 1955 the word “maintained” is defined as meaning”maintained in an efficient state, in efficient working order, and in good repair.” This obligation is not discharged merely by taking reasonable care and, in some of the cases referred to by the defendants in the course of their argument, a similar provision in Britain has been held to import an absolute duty. If, therefore, the statutory obligation in s. 33, sub-s. 1, of maintaining in good repair is an absolute duty, it is difficult to see by what reasoning an obligation not to use the hook unless it is of adequate strength is not, by its very terms, also absolute.
One must, therefore, look at s. 34 itself to see whether there is anything in the section which qualifies or weakens the absolute nature of the terms of the duty imposed. It is quite clear from a perusal of the different paragraphs of the section, and indeed of other sections of the Act, that the legislature made a distinction between taking something into use in a factory for the first time and the user described in the phrase “shall not be used.” In my view the distinction emphasises the continuing nature of the duty imposed by s. 34, sub-s. 1(a), and, far from weakening its primary meaning, rather strengthens it by contrast. The phrase “free from patent defect” is, in my view, an additional duty and not a qualification of the duty that the lifting tackle should be of good construction, sound material, and adequate strength. The freedom from patent defect is itself an absolute obligation and such a defect is not one which is captured under the headings of good construction, sound material or adequate strength. It appears to me that, if the lifting tackle can be shown not to be of either good construction, sound material or adequate strength, it is not necessary to show that the defect was also a patent one. The existence of the particular obligations imposed by paras. (d), (e) and (f)of sub-s. 1 of s. 34 cannot, of themselves, be held to imply that they are the only obligations imposed once the lifting tackle has been brought into use. The obligations imposed by these particular paragraphs are clearly of a precautionary character. The object of these particular obligations is to compel the occupiers of factory premises to take certain precautionary and preventative measures designed to reduce the possibility of accident, but that is not in the least inconsistent or incompatible with a legislative policy which would impose an absolute obligation in the event of the precautionary and preventative measures not achieving their ultimate objects. In my view the primary meaning of para. (a) of s. 34, sub-s. 1, of the Act of 1955 is that lifting tackle shall not be used at any time unless it be of good construction, sound material, and adequate strength; and that, if there is an absence of any of these qualities, whatever be the reason, there is a breach of the obligation. I find nothing in the other paragraphs of the section, or indeed in any of the other sections of the Act, which qualifies or modifies the absolute nature of this obligation, and in my view the learned trial judge was correct in his ruling upon this point. I would disallow this ground of the defendants’ appeal and would, therefore, disallow his appeal on the issue of liability.
I turn now to the question of the defendants’ appeal on the issue of damages. The sum of £72,500, which I have already mentioned, was indeed a very high award. However, no part of the appeal is based on any allegation of misdirection on the part of the judge and therefore the only question to consider is whether, notwithstanding the great amount of the damages, it is an amount which is so large that twelve sensible men could not reasonably have awarded such an amount. In these cases the duty of the Court is a supervisory duty and the performance of that duty may involve an examination of the evidence in the case for the purpose of ascertaining whether the jury has failed in any respect to fulfil its judicial duty in the assessment of the damages. It is not, however, a function of the Court to substitute its judgment for that of the jury where no failure of duty on the part of the jury has been established. As our law stands at the moment, nothing less than full damages should be given; that is to say, full damages by the standard of a reasonable jury. This is not a never-changing, fixed or hypothetical standard but one which, over the passage of time and the change in the outlook of ordinary reasonable people, must, to the extent that reasonable jurymen reflect the community from which they are drawn, reflect the current standards and values of the reasonable members of the community at large. The more devastating the injuries and other consequences of the accident and the greater the duration of these consequences, the more difficult it may become to ascertain, with any degree of precision, the amount of damages which ought reasonably be awarded in such a case. However difficult it may be for this Court to ascertain where the frontier of unreason begins, it has no duty to set aside a verdict of a jury unless and until it is satisfied that that frontier has been crossed.
It is no exaggeration to describe the consequences of this accident for the plaintiff as devastating. At the date of the accident he was 33 years old, unmarried, and living with his father and mother at Kildangan, Monasterevan, County Kildare. He was engaged to be married and the marriage would have taken place when a house became available for him. By reason of the injury he suffered to his spinal cord in the area of the fifth cervical vertebra, which is about the position of the ordinary collar-stud or button on the neck, he is now paralysed from that area downwards. He is now suffering and will continue to suffer for the remainder of his life from quadraplegia. His mental functions have not been impaired but he no longer has any power of movement in his limbs; he has no sensations in his body from the area of the injury downwards; he has lost control of his bladder and bowels and (to quote the very apt description of the learned trial judge to the jury) he is, one might say, “from the head down a vegetable, except a vegetable that has to be tended and looked after in order to prolong his life.” His life expectancy, which would normally have been about 38 years, has been reduced by a quarter. He will require constant attention from an attendant, or attendants, who will be at least sufficiently skilled to look after all his physical needs.
This will require attention with a greater degree of skill than is necessary for housekeeping or cooking because of his absence of control over the functions of the bladder and the bowels, but it will not require as much skill as a nurse possesses. He will never be able to get round save in a wheel chair though, with rehabilitation, he may acquire the ability to exercise control to some extent over an electrically-operated wheel chair. By reason of his permanent confinement to a wheel chair, he will require to dwell in a house or apartment in which the passages and the doors are of sufficient width to permit the movement of the wheel chair. Such residential quarters will also require sufficient accommodation for his attendant or attendants. He will have recurring expenses for hospital and medical attention and there is the probability of at least one operation. He will have the recurring cost of the replacement and renewal of various appliances, such as a special bed, and the maintenance and possible replacement of a wheel chair and other constantly recurring expenses incidental to his medical condition.
At the time of the accident he was earning about £14 a week. He has no prospect of any future earning capacity.
In testing a jury’s verdict in the case of damages, it is customary and convenient to endeavour to segregate those items of actual loss and items which are ascertainable of future expenditure, whether of a capital nature or of a recurring nature, and all ascertainable items of future pecuniary loss. The evidence of the actuary called on behalf of the plaintiff was that the capitalised value at the date of the trial of the plaintiff’s loss of earnings for the future would be £9,335. That was on the assumption of an actual life expectancy of 281/2 years. This figure was taken and acted upon on the assumption that the plaintiff was not entitled to recover, as part of his damages, any sum in respect of the loss of wages for the number of years by which his expectation of life had been reduced, which in this case was approximately ten years. On this matter the learned trial judge expressed the view that that was the correct legal position. In my opinion the period or the length of time by which the expectation of life has been reduced must also be taken into account, though of course for that particular period the sum to be considered would not be the gross loss of wages for the period but the surplus, if any, after providing for what it would have cost him to live during those years if he had not had the accident. The actuary also made a calculation for the same period of 281/2 years on the basis of a 3% per annum increase in the nominal value of his earnings and the resultant figure was £12,236. He calculated that the then capitalised value of £100 per annum was £1,652. The actuary in evidence had also taken into account, for the purpose of making his calculation, the possibility of illness or unemployment. The figure of 3% annual increase was taken into account by the actuary on the basis that the past history of increases in wages has indicated that that is the probable increase, and in my view it is a factor which could properly be taken into account by the jury in endeavouring to estimate the future.
There were several comparatively small items such as the capitalised cost of replacement of equipment and appliances, and medical attention and visits to the Rehabilitation Centre for examination, the prospect of another operation, and the medical expenses incurred to date, all of which were to come to a little over £4,000.
The cost of the future attention of the semi-skilled type already mentioned is a considerable item in the damages. It is not disputed that constant attention will be required though there was some dispute as to the degree of skill which might be required; but, making allowance for all of this and taking into account the question of wages and keep of such attendant or attendants, I think a jury would not be in the least unreasonable in assessing the figure at £1,000 per annum all in. The capitalised value of that, on the actuarial basis provided, would be £16,520.
Reference was made to a fact which had been put to the jury for consideration and that was the question of what the future domestic life of the plaintiff would be in the light of what has happened, and consideration was given to the prospect of his parents, at least for some considerable portion of their remaining lifetimes, performing these tasks of personal attention for him if he continued to live with them. In my view this is a factor which should not affect compensation. It is certain that the plaintiff will require attention. If he continues to live with his parents, the fact that his parents, even if able to provide the attention by their own efforts, might be willing to do so is entirely a chance, though it may well be a happy chance for the plaintiff; but, even if such a contingency is in the realms of probability for the limited period of the lifetimes of the parents, it does not follow that the plaintiff ought not to, or might not, reimburse them or remunerate them to the same extent as he would in the case of other attendants. Furthermore, while it might appear that the prospects of going through with the contemplated marriage is no longer a practical possibility in the case of the plaintiff, it cannot be entirely ruled out and in that event also it would not be proper to give any weight to the consideration that a wife might add to her burdens by undertaking the type of attention which is required, even if she was able to do so.
Another item of considerable substance is the question of the provision of a suitable house for the plaintiff. Evidence was given that the cost of providing a house suitable for himself and the necessary attendants would be approximately £9,000. Now this is not an item which must be regarded as a wasting expenditure and, allowing for the fact that some considerable part of the total cost may be in respect of the special measurements which are necessary to accommodate the plaintiff and which would not have any appreciable market value for any other purchaser, I think it would be not unfair to allow that the house would retain a value of approximately £5,000 as a capital asset. On that basis the loss to the plaintiff would be approximately £4,000.
On the basis of these figures which I have mentioned, in my view a jury might reasonably set the damages referable to the ascertainable loss at £37,000 or £38,000. The balance of the verdict would then be approximately £34,500 attributable to what one may call the general damages. This is the area of damages which, in a case of this nature, must cause the greatest difficulty and it is the one most likely to result in the divergence of opinions between juries and judges. It is doubtful if there can be any more severe bodily injury, which can afflict a person who remains alive, than this condition of permanent quadraplegia. The fact that in many cases in recent years very high damages are associated almost exclusively either with cases of quadraplegia or paraplegia indicates not that there has been any considerable increase in the amount of damages being awarded in personal injury cases, but that the Courts are now being called upon to deal with cases and actions which have only been made possible in recent years by the great advances made in medical science. Persons who formerly died are now being kept alive. The fact of being alive enables the plaintiff to maintain proceedings and the cost of being kept alive must be borne by the defendant, if he is liable at all.
One of the consequences of being alive in such circumstances is that pecuniary damages can never restore the position of the plaintiff; but the fact that that is not possible is not to be regarded as a factor for reducing damages, any more than it is in a case of a far less serious injury where the pre-accident physical condition cannot be restored. I cannot subscribe to the view that, in a case such as the present one, the measure should be what it will cost to enable the plaintiff to live as tolerably as may be in the circumstances. The plaintiff is entitled to be given damages for such items as the loss of pleasure in life, the loss of marriage prospects, the loss of the prospects of having children, the great mental anguish which must naturally be a consequence of the knowledge of one’s condition, the realisation (if not the indignity) of an almost completely vegetable existence so far as the physical functions of the body are concerned. It is unnecessary to detail the day-to-day incidents of the life of such a person. The jury must take into consideration the personality of the plaintiff himself and weigh up as best they can, their assessment of his ability to cope with the dreadful situation in which he finds himself; and the better a plaintiff is able to cope with the situation, mentally as well as physically, the less is the damage donewith consequent, if relatively minute, relief for the defendants. This is a matter peculiarly within the province of the jury, or of the tribunal (if it be not a jury) which saw the plaintiff. The evidence, as it appears in the note, does suggest that the plaintiff is so far facing the situation with an amazing degree of fortitude and a resignation which is, so far, not clouded by despair. I have no reason, however, to think that the jury did not take all of that into account.
I also do not accept the view that, because it does not appear likely that the plaintiff can spend all the money he has received, he has received too much. If it were a factor to be considered I have little doubt that a plaintiff similarly situated could be advised on many different ways to spend the money in an effort to distract, so far as possible, his mind from his physical plight, and perhaps to acquire new, if expensive, interests which might never have attracted him in his ordinary life.
Similarly I think it is fallacious to approach the question on the basis of examining what income the damages could produce if invested. So far as the damages are made up of money based on the actuarial calculations, the underlying assumptions, on which the ultimate calculations were made by the jury, contained an assumption of expenditure at a rate which, if continued, would have meant that at the end of the period calculated there would be no residual capital sum. If a person chooses to live on less than that which he is entitled to spend and if he thereby acquires a capital sum which is in existence at the time of his death, that is not a factor to be taken into account in measuring the damages. A person might well find himself spending a good deal more than the sum assumed in the initial calculation, in which event the damages would not even endure for the period originally calculated. In such a case, what he chooses to do with his damages after he gets them is not a relevant consideration in the assessment of the damages or in the consideration of these damages upon an appeal.
I agree that damages must not be assessed on the basis that everything in life would have gone most favourably to the plaintiff whose future has been affected by the injury, but that is a factor which has greater relevance to the portion of the damages attributable to loss of earnings than to general damages and it is a factor which is usually, and was in this case, taken into account in respect of that heading. It has also relevance, but in a less tangible way, to the general damages because some consideration must be given to the many contingencies of life both good and bad, but beyond stating it as a consideration there is little advice one can give in respect of the practical application of it where there are no particular circumstances which may indicate even the possibility of some particular contingency.
Comparison with damages given in other cases which are reasonably comparable to the present one can be of some assistance but, by reason of the comparatively recent advent of this class of case, the number of such comparisons available must necessarily be few. The Court has been referred to its decision in Murray v. John Sisk & Son (Dublin) Ltd. (1).That was a case of paraplegia, but it was a case in which the plaintiff had the use of his body from the waist up, and he would be able to drive a motor car and, in time, be able to do some light industrial work. In that case the jury had awarded the sum of £41,630, of which approximately £25,000 could be reasonably attributable to the pecuniary loss. The Court, while making it clear that the balance of approximately £17,000 attributed to general damages was more than the Court itself would have awarded if called upon to assess the damages, nevertheless did not consider that the figure was one which no reasonable jury could award in the circumstances. For my part I do not find it possible to say that in the present case a jury might not reasonably have considered that the position of the present plaintiff, so far as general damages were concerned, was at least twice as bad as that of the plaintiff in Murray v. John Sisk & Son (Dublin) Ltd. (1). The age of that plaintiff was 37 years and the evidence was that his expectation of life had been reduced by about five years. So far as actual enjoyment of life is concerned, in my view there can scarcely be any comparison between the two cases.
The Court has also been referred to a decision of the Supreme Court in McMorrow v. Knott given on the 21st September, 1959, when a verdict of £87,402 was set aside and a new trial on the issue of damages ordered. In that case the main ground for ordering a new trial would appear from the judgments to have been the finding that there had been a misdirection on the part of the trial judge in relation to certain parts of the evidence. It is true that the judgments do indicate also that the damages were such that no reasonable proportion existed between the figures which the Court had in mind and the jury’s assessment, and that the Court felt bound to hold that the jury’s assessment was excessive. Unfortunately, however, the judgments do not reveal sufficient facts to indicate what figure, if any, was attributable to the heading of general damages, so I think the case is not of any great assistance in the consideration of the present problem on that heading.
Reference was also made to the standard of a “conventional figure” which was apparently adopted by trial judges in England in cases such as this. If by that is meant that one should have regard to the damages given by other judges in similar cases, then I can understand it; but if it is sought to explain it by saying that one is to create some kind of an artificial standard which, irrespective of the circumstances of a case, one is to take as the top figure for the time being, then I can find no justification whatever for adopting such a course in our law. In so far as the conventional figure refers to other verdicts then in our circumstances the verdicts to look at are the verdicts given by other juries in like cases and, where they have been appealed, to the view of the Supreme Court in those particular cases. We have in the course of this case been referred to a number of jury verdicts but again, for the reasons I have already stated, the number of comparable cases is small and the number of appeals is even smaller.
As was stated in Kinsella v. Roofing Contractors Ltd. (Supreme Court: 8th February, 1966), of the various functions which this Court sits to discharge perhaps none is as little satisfying for counsel and litigant, and no less for the individual judge in this Court, as the review of damages for personal injuries assessed by juries. In effect, the individual judge is required to make his own assessment of the damages and to set it against the jury’s and to say whether, looking at these two figures, the jury’s assessment is so disproportionate to the circumstances of the case as to be unreasonably excessive. In performing this function the judge’s assessment is personal but controlled, where possible, by his experience of other verdicts in like or comparable cases. In the final analysis all a judge can do, after surveying the evidence and pondering upon it, is to say “I am satisfied” or “I am not satisfied”, as the case may be, “that the damages are unreasonably excessive.” I regret that it is in this area of personal assessment that I find myself not in agreement with the majority of my colleagues.
From the cases which have been cited to this Court I cannot say that no reasonable proportion exists between the figure I would form in my own mind in the light of previous experience and the jury’s assessment in this case. The figure awarded is probably higher than I would award if I were to determine the matter myself. I use the word “probably”advisedly because, unless I actually heard the case, I could not find it possible to state the matter any more definitely. But even if I could say definitely that the damages I would award would be lower than those awarded by the jury, I must also recognise that in a case of this nature there is great scope for divergence of opinionfar more than there would be in a case where the injuries and the loss were not so great. Unless the Court can say, where there is a divergence or opinion, that the divergency is so great that the jury’s award must be regarded as unreasonably excessive, the verdict cannot be set aside. The greater the scope there is for divergence of opinion, the further must one go to reach the point of unreasonableness. I would dismiss this appeal on the issue of damages.
LAVERY J. :
I have read and considered the judgment which Mr. Justice Walsh has delivered. The first issue to be decided is whether, in the circumstances of the accident to the plaintiff, the defendants were under an absolute obligation to him irrespective of any negligence on their part. The learned trial judge ruled that the duty to the plaintiff was an absolute one. Mr. Justice Walsh has held that this ruling was correct. I am of the same opinion for the reasons given by him, and on this issue I have nothing to add.
There remains for consideration the important and very difficult issue as to whether the verdict of the jury, awarding the plaintiff £72,500 damages, is excessive, and excessive to a degree requiring the Court to set the verdict aside and to direct that the damages be assessed on a new trial. The principle upon which this Court proceeds is not in doubt and has been stated in many cases and particularly in the decision of this Court in Foley v. Thermocement Products Ltd. (1).
Mr. Justice Walsh has made a detailed and exhaustive examination of the several heads of damage. He arrives at a figure of £37,000 or £38,000 as the sum which, in his view, a jury might reasonably set as the ascertainable loss. This figure is reached as the total of certain items and the capitalised value at the date of trial of the estimated future heads of damage. These are, the plaintiff’s future loss of earnings, the cost of replacement of equipment and medical attention both past and future, the services of an attendant throughout his life, and the provision of a suitable house for the plaintiff and for the attendants he will require. There are calculations and estimates involved in arriving at this figure of £38,000, to take the larger figure. Many of these are difficult and in controversy. The evidence given for the defendants would give a considerably smaller figure. On the present enquiry at every stage, the evidence given for the plaintiff and most favourable to him, which the jury could reasonably accept, must be adopted.
For the purpose of my conclusion I accept the estimate of £38,000 though I think it may be too high.
This figure cannot of course be described as special damages, it includes a considerable sum for what is described as general damages. The appropriate description is that of Mr. Justice Walsh which is “ascertainable loss”. This sum will provide for the plaintiff’s every material need in the unhappy condition of life in which he finds himself. It also compensates him for the loss of earnings which he might have made if he had not been injured. Mr. Justice Walsh has said, and I agree, that it is not enough to give the plaintiff what will enable him to live tolerably. The amount is, however, adequate and more than enough to provide a comfortable condition of life so far as that is possible.
Accepting this sum, the balance of the verdict is £34,500 and the question I proceed to consider is whether this sum is excessive. The heads of loss here to be considered have been set out eloquently and forcibly by Mr. Justice Walsh and everyone must be deeply moved by his statement of them. They include pain and sufferingpast, present and futureloss of pleasure in life, loss of marriage prospects and of founding a family, the great mental anguish inevitably caused by the knowledge of his condition. It is unnecessary to dwell on these matters. It would be impossible to exaggerate the miserable circumstances in which the plaintiff finds himself and in which he must continue to live. These are also peculiarly matters for the consideration of the jury. Nevertheless, it is the duty of this Court to examine the verdict and to determine whether or not, as money compensation, it bears a reasonable proportion to the loss. The law is that damages due either for breach of contract or for tort are such amount which, so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. Dealing with damages to be awarded for the shortening of life, Lord Wright said in Rose v. Ford (1) at p. 848 of the report:”In one sense it is true that no money can be compensation for life or the enjoyment of life, and in that sense it is impossible to fix compensation for the shortening of life. But it is the best the law can do. It would be paradoxical if the law refused to give any compensation at all because none could be adequate.” And Lord Simon, in the same connection, said in Benham v. Gambling (1) at p. 168 of the report:”. . . in putting a money value on the prospective balance of happiness . . . the jury or judge of fact is attempting to equate incommensurables”. These statements are truisms and are equally applicable to the estimation of damages of the kind now being considered. I have considered the case, following the directive laid down in Foley v. Thermocement Products Ltd. (2), and in my opinion the sum of £34,500 is wholly excessive and the verdict should be set aside.
I am of opinion that in tragic cases such as this, the sum to be awarded should be such a sum as will liberally provide for the plaintiff all his reasonable material needs in his future life, will make good his actual loss both past and future and will allow a very substantial amount for the virtual destruction of the plaintiff’s enjoyment of life. This last amount is imponderable in terms of moneyno sum in one sense could be adequate. Advances in medical science and in the care of persons injured in accidents have enabled lives to be saved which, in earlier days, would have been lost; but often (as in the present case) life is continued in circumstances of extreme distress, and such cases call for very large damages. But a new problem in assessing damages arises.
The first case of paraplegia in the courts of this country was Hughes Case , heard in the year 1946, when a jury awarded £20,570 damages. The plaintiff was a nurse aged 33 years. At the time, this was the largest sum ever awarded in the courts in the United Kingsom or this country for damages for personal injuries. The case was appealed and settled for a somewhat reduced amount. Of course values have changed since then. Damages awarded by judges in England and in Northern Ireland in similar cases are substantially less than the verdict now being considered. It has to be noted, of course, that in the United Kingdom medical treatment and hospitalisation are provided by the State. The part of the damages I am dealing with is after full provision has been made for medical care. I quote Lord Wright again:”In one sense it is true that no money can be compensation for life or the enjoyment of life, and in that sense it is impossible to fix compensation for the shortening of life. But it is the best the law can do. It would be paradoxical if the law refused to give any compensation at all because none could be adequate.” I add a corollary: neither is the fact that no compensation can be adequate a justification for awarding an immense sum which can avail nothing to redress the injury. In my opinion, the verdict should be set aside and a new assessment of damages be directed.
HAUGH J. :
I consider the damages to be excessive and I would direct a retrial on that issue.
O’KEEFFE J. :
I have some doubt in regard to liability for breach of statutory duty, but I defer to the other members of the Court. I consider that a sum of £35,000 for general damages is altogether excessive and I would allow the appeal against damages.
Bohan v Clements
[1920] 2 I.R. 117
C
SIR J. CAMPBELL C. :”
20 Nov.
In this case the plaintiff was the occupier of lands within a contributory area under the Drainage Code, and he brought an action by civil bill against the trustees of the Drainage Board for damage which he alleged had been occasioned to his lands by reason of the failure of the trustees to maintain the drainage works. The matter came on appeal at the Assizes before Gordon J., who has stated a case for the opinion of the Court, one of the findings of fact being that it was admitted that the drainage works were improperly maintained, or, in other words, that they had not been properly maintained. It has been argued on behalf of the trustees that as they were a public body entrusted with a discretion as to the manner and method in which they would discharge their statutory duties, the mere omission to cleanse or scour the drains was not a matter which would render them liable to a civil action; and that, in any view of this drainage code, the trustees were not liable to be impleaded in a Court of law by an individual, inasmuch as in several of the Acts of Parliament constituting the code alternative remedies were provided for an aggrieved party, either by way of appeal to the Commissioners of Public Works, or by having recourse to a Court of summary jurisdiction, and it has been contended accordingly that, looking to the purview of the entire code, the intention and purport of the Legislature was to prevent the trustees from being sued by individual contributories for injuries or wrongs affecting the persons complaining.
As regards the first contention, I think it is plain that although the trustees are given a discretion as to the mode and manner in which they will carry out the duties entrusted to them, they have, nevertheless, under these statutes an obligation to maintain their drainage works, and where, on the admitted facts, they have failed to discharge that duty in any shape or form, as they admit in this case they have failed to do for a considerable number of years, it seems to me that the principles of law relating to the distinction between misfeasance and nonfeasance, omission and commission, have no application. It is not a case of the trustees having made a mistake in the execution of their duty; they have failed to discharge their duty at all, and, in my judgment, where that is so, they are liable to be sued by a single contributory for the damage resulting from that breach of statutory duty.
I only desire to add that I am not to be taken as deciding that if these trustees, in an honest and bona fide exercise of their powers and obligations, had maintained or endeavoured to maintain these works in such a way as to cause injury or damage to some one or more contributories, an action for damages would lie against them. It is possible to conceive of cases where, in an honest endeavour to discharge their statutory obligations, the trustees might cause more or less serious damage to one or more contributories, and in such a case it might be a difficult matter for the aggrieved party to render the trustees liable to an action for damages. These are not the facts in the present case; for the purposes of this case I only decide that the trustees were under a statutory obligation to maintain these works; they admit they have failed to do so; the plaintiff has suffered a certain amount of damage resulting from their failure, and I can see no reason why he should be deprived of his ordinary civil remedy. The decree of the County Court Judge was right, and should be affirmed.
RONAN L.J. :”
I am of the same opinion, and for the same reasons. It was admitted at the hearing that the drainage works had not been properly kept and maintained for a considerable time, and the Judge has found that the main cause of the flooding was due to this failure on the part of the defendants. In these circumstances, the plaintiff has plainly suffered special damage from the defendants’ admitted breach of their statutory duty; and, in my judgment, an action for damages at common law is accordingly maintainable.
O’CONNOR L.J. :”
Section 120 of 5 & 6 Vict. c. 89 provides for the appointment of trustees on behalf of the proprietors of a drainage district, and then goes on to say:””The said trustees are hereby fully authorized to make, alter, support, and maintain, or cause to be made, supported, altered, and maintained all such outs, drains, banks, sluices, tunnels, bridges, engines, buildings, and other works in and about the laud so drained as aforesaid as they shall think necessary for draining and preserving the same.” The first question that arises on this section is: Does it impose a duty on the trustees, it being argued on their behalf that, inasmuch as the language of the section is, in its terms, permissive””authorized”and not “required””no duty whatever is cast upon the trustees I am of opinion that this contention is not well founded. To hold otherwise would be to sanction the notion that persons who assume a statutory office can altogether ignore the functions for the performance of which the office was created, and for which they were elected. But, indeed, this matter is put beyond doubt by sect. 144, which speaks of “any river, stream, or watercourse, . . . bank, dam, or sluice which, under the provisions of this Act, the said Commissioners or trustees may take upon them the duty of regulating or maintaining.” This section shows that the functions were not merely permissive, but obligatory. The next point raised on behalf of the defendants is that the question of the proper performance of the duties is one entirely for them (having regard to the words I have quoted: “as they shall think necessary for draining and preserving the same”), and that it is not competent for any Court of law to inquire into any alleged neglect on their part. I reserve the right to say, if and when a case arises, whether the bona fide decision of the trustees that a certain work is or is not necessary can be challenged in a Court of law; that is a matter upon which much may be said on behalf of the trustees. But that question does not arise here, for the defendants admit the necessity for maintaining the out or drain, but deny their liability for not maintaining it. I am of opinion that where they admit this necessity, the performance of the duty is not in their discretion, but is mandatory upon them. The last point raised by the defendants is that, admitting the duty and admitting its breach, no action lies for the breach. This is a statutory duty imposed for the benefit of a class; the statute (for, of course, in construing the statute we must look at its own provisions and not at those contained in a later and supplementary statute) enacts no specific remedy; the principle is clear that in the absence of anything indicating a contrary intention, an action lies for the breach. I can find no contrary intention in this statute. On the other hand, I find, in the same section 144, the clearest indication that the statute contemplated actions against the trustees for breaches of duty to maintain the works, for this section takes care to keep them harmless from certain breaches (of which the present case is not one) unless certain notices of the impending damage have been given and ignored.
For these reasons, I agree in thinking that the decree should be affirmed.
O’Brien v. Waterford Co. Council
[1926] IR 1
Murnaghan J.
The difficulties which have arisen in this case are concerned partly with the view which should be taken of the findings of the jury and partly with the law applicable to these findings. The allegation of the plaintiff at the trial was that the defendants, who are the road authority, had undertaken the repair and reconstruction of a destroyed bridge under their control, and that the plaintiff suffered injuries as the result of the defendants’ negligence in such repair and reconstruction. This negligence was alleged to be found in the defective fencing erected by the defendants in connection with the bridge, and also in the failure on the defendants’ part to give proper warning at night of the condition in which the bridge had been left. The defendants’ case rests upon a denial that the fencing was improperly carried out, and also upon the principle that the omission to give warning at night by lamps, or other sufficient means, of the condition of the bridge is at most an act of non-feasance for which the defendants are not in law responsible.
The actual facts are not substantially in controversy. The bridge on the road from Clonmel to Pouldrew was blown up in July, 1922. In April, 1923, the County Council took steps to make the bridge passable. Owing to the number of similar works which the Council had in hand they did not cause the entire bridge to be restored, but caused a structure to be erected, which extended to about one-half of the width of the former bridge. The road was carried over the bridge so made on what was formerly the left-hand side, coming from Clonmel, of the former bridge. To protect persons using the road from falling into the gap left by the unrestored part of the bridge at the right-hand side, the Council caused a fence to be erected consisting of three lines of larch spars, attached to posts sunk into the ground. A warning notice was posted at each side of the bridge drawing attention to the fact that the bridge was for light traffic only, and containing also these words: “The County Council of Waterford will not accept any liability whatsoever for any accident to persons or property arising from the use of this bridge, and the public are hereby warned that they use this bridge solely at their own risk and responsibility.” Coming from Clonmel the bridge turns somewhat sharply to the left, and the road as it approaches the bridge has a considerable decline. On 23rd November, 1923, the plaintiff, who had crossed the bridge in the opposite direction earlier in the day, whilst returning from Clonmel about 10 p.m. in a hired motor-car, sustained considerable injuries. The motor-car after descending the slope to the bridge failed to turn to the left within the limits of the restored way, and struck the end of the paling guarding the portion under repair, and dashed through this paling on the right-hand side, and was suspended over the unrepaired gap. At the trial, the jury, in answer to questions submitted to them by Mr. Justice Johnston, found that the defendants had undertaken to repair and temporarily reconstruct the bridge, that they had been negligent as regards notice to the public of the condition of the bridge, but had not been negligent as regards the fencing that was put alongside the temporary bridge. The jury also acquitted (if this be material) the plaintiff’s driver of all negligence, and found for the plaintiff £500 in damages.
From the evidence given on behalf of the plaintiff at the trial it will be seen that the case made was: 1, that the bridge as described was dangerous at night by reason of the erection of the fence or paling in the absence of a sufficient warning as to the existence of this fence; 2, that the fence itself was defective as a barrier by reason of the materials used in it being decayed, and that it was insufficient to protect persons using the way across the bridge. Counsel for the defendants, at the close of the plaintiff’s case, asked for a direction on the ground that there was no evidence of misfeasance on the part of the defendants, and that there was no negligence on defendants’ part in carrying out the repairs to the bridge. So far as concerns the allegation that the fence was defective, the jury have found for the defendants. Whether there was evidence to go to the jury on the other question, 2 (a), depends upon the proper view of the law which should be applied. We may assume, but without deciding, that the defendants as road authority are not responsible for damages in an action brought against them where the injuries complained of are the result of non-feasance. This has been laid down by the late King’s Bench Division, whose decisions are, of course, not binding upon this Court, in Harbinson v. Co. Council of Armagh (1), where the common law doctrine, which has been recognised in cases from Russell v. The Men of Devon (2) down to Cowley v. Newmarket Local Board (3), was applied in the case of a County Council. Although the County Council are responsible for the proper maintenance of roads and bridges under their care, and owe a duty to the public in respect of them, there are good reasons why the County Council should not be subjected to actions for damages at the suit of persons who have suffered by reason of omission to repair. This doctrine is not to be whittled down by making fine distinctions between non-feasance and misfeasance. Whether the protection of this common law doctrine extends to local authorities constituted under the Local Government (Ireland) Act, 1898, is still open to consideration in this Court if the occasion should ever arise. But it is settled law that the County Council are liable for damages caused by misfeasance. If what was done here by the County Council was to erect a barrier on the restored portion of the bridge in such a manner that the erection was, in a state of darkness, dangerous, and if no sufficient warning of such danger was given to the public, it is not possible to treat the failure to give warning as an act of non-feasance. What was done by the County Council was one combined act, and it is not possible to sever the not putting up of a sufficient light or other necessary warning from the rebuilding of the bridge itself. I cannot see upon what principle the decision in Shoreditch Corporation v.Bull (4) can be limited to cases in which the road authority, finding the roadway in a normal or perfect condition, alter the road and then leave it negligently repaired. It is not a proper method of argument to say that, because the defendants would have incurred no liability if they had done nothing, therefore they are under no liability if they have negligently replaced the bridge which had been destroyed. The position that the road authority are not liable in damages for non-feasance is an anomalous rule which may be justified by special considerations. But where the road authority have made repairs improperly so as to make the repaired structure dangerous to persons using the road this principle cannot be invoked to absolve the road authority from the consequences of negligence in making such repairs. Nor, in my opinion, is it correct to say that, because the County Council were under no obligation to light the bridge, therefore there can be no obligation upon them to light an obstruction placed by them upon a partially repaired bridge erected by them if in the opinion of the jury, the works are such as if, unlighted, will be a source of danger. The true rule of law is that if the defendants rebuilt the bridge so improperly as to make it unsafe for the public to use it at night, and if they did not take such steps as the jury might consider reasonable in order to neutralize the danger arising from using the bridge, they are guilty of acts of misfeasance for the consequences of which they are responsible in damages to any person injured.
Mr. Lynch contends that there was no evidence to justify any question being left to the jury as to whether the bridge was in the circumstances of the darkness a source of danger, and also that the jury have not found that the bridge was a danger to the public. In my opinion there was evidence proper to be left to the jury upon the issue whether the bridge was in the circumstances a source of danger. An answer to this question in the affirmative is essential to the plaintiff’s cause of action, and it would be very desirable that it should have been put specifically to the jury. Plaintiff’s counsel asked the Judge to put a question to the jury in the form following:”Was this bridge as made up and repaired a danger to persons using it at night?” The learned Judge at the trial thought that it was desirable to have a finding separately upon the two points of negligence alleged, viz.: that the fencing was constructed of improper materials, and that no sufficient warning was given of the condition of the bridge. I have considered the evidence given at the trial in reference to this last-mentioned matter. It was admitted that the warning notices had been put up by the defendants, and the evidence was principally directed to whether these notices were up, and could be seen, and whether the notices were sufficient warning. There was no evidence given by the defendants that the bridge was safe at night. Question 2 (a) as framed was: “Were the defendants negligent as regards notice to the public of the condition of the bridge?” Having regard to the course of the trial, and the reference in the questions to the condition of the bridge, I am of opinion that an affirmative answer to this question includes a finding that the bridge was dangerous, and that the defendants had not given sufficient warning of the danger. Whether the warning given was sufficient or not, in fact, is entirely a question for the jury. In my opinion, the appeal should be dismissed.
Merriman v Dublin Corporation Dublin County Council
1989 No. 501P
High Court
29 November 1991
[1993] I.L.R.M. 58
(Costello J)
COSTELLO J
delivered his judgment on 29 November 1991 saying: The plaintiff sustained injuries as a result of an accident on 11 July 1986. It happened when he was walking to his home in Drumcairn Avenue, Tallaght. He had alighted from a bus, crossed an open space, and then stepped on to the roadway. There was an open gulley on the side of the road. He put his foot in it, fell forward, and injured his back. There had been a grill on the gulley, but it had been removed sometime prior to the accident. He originally sued the Dublin Corporation but after the corporation had instituted third party proceedings against the Dublin County Council, he joined the county council as a second defendant. Both the defendants have claimed contributions against the other under the provisions of the Civil Liability Act 1961.
The circumstances relating to the construction of the drain were somewhat unusual. The area in which it had been constructed was in the administrative area of the county council but the roadway, the drains and the adjacent houses had, with the agreement of the council, been erected by the corporation in accordance with plans submitted for approval to the council under the Planning Acts. At the time of the accident the road had not been taken in charge by the council — this happened shortly after it.
In the circumstances of this case the corporation did not owe any duty of care at common law to the plaintiff and the case has not been made that it did. Nor do I think it was under any statutory duty to the plaintiff either as a sanitary authority, under the Public Health Acts, or as a road authority under the Local Government Acts. I was referred to the definition of ‘road’ in s. 2 of the Local Government Act 1925, a definition which provides that a gulley is deemed to be part of ‘a road’, but that section is not relevant to any of the issues in this case. Firstly, it only refers to ‘public roads’, defined as roads in respect of which a resolution under s. 25 of the Act has been passed. No such resolution had been passed in this case at the time of the accident. Secondly, no obligation to maintain the road in question had been imposed on the corporation by this or any other Act. I must hold therefore that no breach of any statutory duty on the part of the corporation has been established and the plaintiff’s claim against it must be *60 dismissed.
The claim against the council, however, succeeds. The drain constructed by the corporation was a ‘sewer’ within the meaning of s. 2 of the Public Health (Ireland) Act 1878. A grid or grating in the road to drain off surface water is part of a ‘sewer’ (see White v Hindley Local Board of Health (1875) LR 10 QB 219). Although the road had not been taken in charge by the council at the time of the accident the somewhat anomalous situation was that the ‘sewer’ had vested in it by virtue of s. 15 of the 1878 Act. Under s. 17 of that Act there was an obligation imposed on it to keep in repair all sewers belonging to it. There was a breach of this obligation as it had not been kept in repair because the sewer was without its grid. There was therefore a breach of its statutory duty for which the plaintiff is entitled to claim damages.
A further question to be considered is whether the council is entitled to a contribution or indemnity from the corporation for the damages it must pay. The corporation admitted that is was under a liability vis-à-vis the council to maintain the road until it had been taken in charge by the council. It would appear that the source of this liability was a condition imposed in the permission to develop granted to the corporation by the council. But such a condition, whilst conferring an obligation on the corporation to the council, did not confer any statutory obligations towards third parties such as would entitle a claim for damages for personal injuries to be brought in the event of non-fulfilment of the obligation. As no claim can be brought by the plaintiff against the corporation by virtue of its failure to maintain the road, or the grating on it, then the corporation and the council are not ‘concurrent wrongdoers’ within the meaning of s. 11 of the 1961 Act. That section provides that two or more persons are concurrent wrongdoers when both are responsible to a third person for the same damage. As the corporation is not responsible to the plaintiff for the personal injuries he suffered no claim for a contribution under Part III of the 1961 Act is sustainable.
I regret to say that I did not find the plaintiff to be a candid witness. He was not candid about his work experience in Wales or about what has happened to him since the accident or about his present condition. Having made substantial complaints under oath of continuing disability it transpired that he has another High Court action for damages for personal injuries and that in response to a notice requesting particulars of previous injuries his solicitor stated, on 22 November 1990, that the plaintiff sustained an injury to his back in 1986 but that he had completely recovered from it. I think that he did suffer an injury to his back, that it was not a lumbar disc injury as Dr Keogh stated, but a strain of the ligaments supporting his lower lumbar spine as Dr Roden stated. I think that he had substantially recovered from this after about twelve months, and I accept Mr McGuilligan’s evidence that when he examined the plaintiff 28 months after the accident his complaints of tenderness then existing were inconsistent. On this basis I award a sum for general damages of £10,000. I do not think that the *61 plaintiff has established any loss of earnings. He was unemployed at the time of the accident and I cannot accept the evidence that work would have been available for him but for his injuries in a firm called Modern Aluminium. As no other items of special damage were established the total award will be £10,000.