Damages Principles I
Cases
Richardson & Anor v. Madden
Property Damages
[2005] IEHC 162 (27 May 2005)
JUDGMENT of Quirke J. delivered on the 27th day of May, 2005.
The plaintiffs, Michael Richardson and Wendi Ferris Richardson, claim damages from Gerard Madden for breach of contract. They claim damages also from their former solicitors Messrs Dermot G. O’Donovan and Partners for negligence and breach of duty arising out of the same set of facts and circumstances. They have instituted separate proceedings in the High Court in respect of each claim.
By order of the High Court (Johnson J.) dated 24th March, 2003, it was directed (a), that the two separate actions should be listed for hearing on the same date and tried by the same judge and (b), that the plaintiffs’ claim against Gerard Madden should be tried first.
When the proceedings came before this court on 5th April, 2005, it was decided by the Court, without objection from the parties, that, since the evidence to be adduced in each case was common to both actions, the court should, for convenience, hear the evidence in full before deciding each case separately.
It has been agreed that the determinations in each case will be made in the order directed by Johnson J. i.e. that the plaintiffs claim against Mr. Madden (Record No. 1999 No. 4465P) will be determined first and the plaintiffs claim against Dermot G. O’Donovan and Partners (Record No. 1999 No. 2816P) will be determined immediately thereafter.
Since the factual background and the findings of fact are common to both sets of proceedings, I have, for convenience, included the determinations in both cases within the same document.
FACTUAL BACKGROUND
The plaintiffs are a married couple who live in Castleconnell in Co. Limerick.
The first named plaintiff Michael Richardson had worked in radio for a number of years and in particular had been the proprietor of a “pirate”
(i.e. unlicensed) radio station in Limerick known as “Big L” between 1978 and 1985.
Thereafter he had worked in other radio stations between 1985 and 1989.
Having worked abroad for some years he returned to Ireland with his wife Wendi Ferris Richardson in 1996 and settled in Limerick.
In November of 1996 Michael Richardson responded to an advertisement from the Independent Radio and Television Commission (hereinafter the IRTC) for “expressions of interest” in applying for a licence to provide a radio service for Limerick City and County.
The “expression of interest” was made on behalf of Michael Richardson, his wife Wendi Ferris Richardson and a mutual friend of theirs called John Franks who then lived, (and still lives), in London.
The proposed radio station was to be called “Big L Radio Limerick”.
For some time prior to 1996 a company called Radio Limerick One Ltd. was the holder of a licence issued by the IRTC for the provision of radio services in Limerick city and county. Gerard Madden was the principal shareholder, the beneficial owner and the person having control of Radio Limerick One Ltd.
Some time in 1999 the radio licence held by Radio Limerick One Ltd. was terminated by the IRTC. A challenge by the licence holder to that termination undertaken in the High Court by way of judicial review failed in July of 1996. An appeal to the Supreme Court was unsuccessful. However Radio Limerick One Ltd. was permitted to continue broadcasting pending the appointment of a new licensee.
Radio Limerick One Ltd. (and its beneficial owner Mr. Madden) continued to benefit from the advertising and other revenue from the radio station during the interim period.
The IRTC received nine formal applications in response to an advertisement published in February, 1997, which sought formal applications for a licence to provide a radio service in Limerick.
The applicants included (a), the plaintiffs and Mr John Franks, who wished to provide a radio station known as “Big L Radio Limerick” (b), a company called Radio Limerick 1995 Ltd. which was partly owned by Gerard Madden (c), a company called Maigueside Communications Ltd. (hereafter Maigueside) in which a Mr Pat Fitzgerald had a beneficial interest and (d), a consortium headed by a Mr Tom Nolan.
On 21st March, 1997, the IRTC wrote to five of the nine applicants advising that their applications had been unsuccessful and that the IRTC intended to invite the remaining four applicants to make oral submissions to the IRTC in support of their applications. The plaintiffs, Maigueside and the companies controlled by Messrs Madden and Nolan were among the five unsuccessful applicants for a licence.
In late March, 1997, Michael Richardson received a telephone call from Mr. Patrick Fitzgerald. Mr. Fitzgerald invited Michael Richardson to attend a meeting of the failed applicants to discuss the possibility of mounting a challenge by way of judicial review to the decision of the IRTC to refuse the applications of five of the applicants.
Mr. Richardson showed a guarded interest. He agreed to attend a meeting with some of the other failed applicants for the purpose of discussion. A meeting was arranged and was held in the Two Mile Inn Hotel in Limerick.
It is likely that it was held on 24th March, 1997. In addition to Gerard Madden and Michael Richardson it was attended by Mr. Patrick Fitzgerald, Messrs Bertie Wall and John Riordan (from Maigueside Communications Ltd), and by Mr. Tom Nolan.
In the course of discussion Michael Richardson stated clearly that he was not prepared to be responsible for any costs associated with any proposed proceedings. After further discussion those attending the meeting decided to consult Messrs. Dermot G. O’Donovan and Partners Solicitors for the purposes of obtaining legal advice as to the prospects of mounting a successful challenge to the decision of the IRTC.
After the meeting in the Two Mile Inn, Mr. Patrick Fitzgerald telephoned Messrs Dermot G. O’Donovan and Partners. He spoke to Mr. Michael Hogan. Subsequently Mr. Fitzgerald and Mr. John Riordan attended Mr. Hogan’s office in Henry St. in Limerick.
Mr. Fitzgerald and Mr. Riordan advised Mr. Hogan that they were seeking advice as to the prospects of mounting a successful challenge to the decision of the IRTC. On the afternoon of the 24th March, 1997, Mr. Hogan met with Mr. Pat Fitzgerald, Mr. John Riordan and Mr. Bertie Wall.
On 25th March, 1997, Mr. Hogan spoke on the telephone with Mr. John Riordan and subsequently with Mr. James Gilhooley B.L. in relation to the proposed proceedings.
On the 25th March, 1997 a meeting was held in the offices of Messrs D.G. O’Donovan and Company. It was attended by Mr. Madden, Mr. Tom Nolan, Mr. Fitzgerald and Mr. Richardson. Mr. Hogan was present on behalf of D.G. O’Donovan and Company.
During the meeting the prospects of successfully challenging the decision of the IRTC was discussed. There was discussion also in relation to the costs associated with those proceedings. During the meeting Mr. Richardson made clear to all who were present that he was not prepared to make any contribution towards the costs of the proceedings or to bear any responsibility in respect of any costs arising out of any decision to proceed.
It was agreed to defer a decision on whether or not to mount a challenge in the High Court pending further discussion by the potential litigants amongst themselves. The meeting concluded.
After the meeting, there was a brief discussion between Mr. Madden, Mr. Nolan and Mr. Richardson outside the offices of D.G. O’Donovan and Partners. Although conflicting evidence was adduced by Mr. Richardson and by Mr. Madden as to what precisely was said in conversation on that occasion, I am satisfied on the evidence and on the balance of probabilities that Mr. Madden assured Mr. Richardson that he would be responsible for all of the costs associated with the potential legal challenge then under discussion.
I am satisfied also that Mr. Nolan further reassured Mr. Richardson, in the presence of Mr. Madden, that Mr. Madden would be responsible for all of the costs associated with the proposed legal challenge.
In the afternoon or in the evening of the 25th March, 1997, Mr. Hogan was notified that it was intended to proceed with the challenge of judicial review. Gerard Madden telephoned Mr. Hogan and discussed the question of the costs of the proceedings with Mr. Hogan.
Mr. Madden agreed to provide Mr. Hogan with a cheque in the amount of IR£4,000 on account in respect of the proceedings.
Proceedings were commenced by D.G. O’Donovan and Partners on behalf of six applicants. Relief was sought against the IRTC and the Minister for Transport Energy and Communications by way of judicial review.
The six applicants were Maigueside Communications Ltd., New Limerick FM Ltd., Limerick 95 FM Ltd., Michael Richardson, John Franks and Wendi Ferris-Richardson.
Mr. Richardson had agreed to participate in the proceedings on his own behalf, on behalf of his wife and on behalf of Mr. John Franks. It is improbable that either Wendi Ferris-Richardson or John Franks were ever advised that they had been named as applicants within the High Court proceedings. They were certainly never advised by anyone of the implications associated with that fact. They were never advised of anything at all by Mr. Hogan on behalf of D.G. O’Donovan and Partners.
Each of the other applicants were corporate bodies limited by shares. Maigueside Ltd. was incorporated for the express purpose of seeking the radio licence. New Limerick FM Ltd. and Limerick 95 FM Ltd. were incorporated after, the licence applications had been made by their respective owners and rejected but before the commencement of the proceedings seeking to challenge the decisions of the IRTC.
On the 3rd April, 1997, (one day prior to the date fixed by the IRTC for the oral submissions on behalf of the four remaining applicants for a licence) the six applicants were given leave by order of the High Court (Moriarty J.) to seek relief by way of judicial review including an order of certiorari quashing the decision of the IRTC.
The order of the High Court recited that an undertaking as to damages had been given on behalf of the applicants by their solicitors.
Thereafter the proceedings were dealt with expeditiously and the parties took a number of steps including compliance with an Order for Discovery.
Conflicting evidence was adduced by Mr. Michael Richardson and by Mr. Michael Hogan in relation to one aspect of discovery.
Mr. Richardson in evidence stated unequivocally that he attended the offices of D.G. O’Donovan and Partners on 28th April, 1997 and spoke to Mr. Hogan. He stated that Mr. Hogan asked for payment in the amount of IR£10,000 towards the costs of the proceedings.
He said that this request was made when he was in Mr Hogan’s office swearing an affidavit of discovery in respect of the proceedings.
He said that having left the office of D.G. O’Donovan he was disturbed at the prospect that he, or his wife, or Mr. Franks should have to pay any sum by way of costs towards the proceedings.
He stated that on the following morning, (the 29th April, 1997), he wrote a letter to Mr. Hogan in the following terms:
“Dear Michael,
Thank you for your recent copy files sent to me on the 18th of this month. I am sorry that I was not able to return your telephone call regarding the hearings to be heard in Dublin on 25th.
Further to your request for funding the Court proceedings, I must reiterate my original position that I am unable to proceed as a partner in this venture, for reasons that have already been stated.
It was a pity that it was allowed to go this far before anything was done to correct the situation. May I take this opportunity to you to wish everyone success in whatever shape it comes!
Yours sincerely,
Michael Richardson.
Also on behalf of Wendi Ferris-Richardson
John Franks.”
Michael Richardson said that at midday on 29th April, 1997, he drove to Limerick. He said that as he approached the premises of Messrs D.G. O’Donovan and Partners he saw Mr. Michael Hogan and Mr. Patrick Fitzgerald coming out of the building. He said that as he approached Mr. Hogan he gave him the letter saying “the letter says it all”. He said he then turned, left Mr Hogan and Mr Fitzgerald and drove away.
He said that he received a letter dated 15th May, 1997, which appeared to be a “circular” letter which had been sent to all of the participants in the proceedings outlining the steps which had been taken in the proceedings up to and including the date of the letter. He said that thereafter he heard nothing further from D.G. O’Donovan and Partners or any of the other participants in the proceedings.
Mr. Michael Hogan, in evidence, denied that he had ever received a letter from Mr. Richardson dated 29th April, 1997. He denied Ms. Richardson’s account of having spoken with him in the presence of Mr. Fitzgerald outside his premises on 29th April, 1997.
Mr. Hogan stated that the affidavit of discovery to which Mr. Richardson referred was in fact sworn by Mr. Richardson on 23rd April, 1997. He pointed out that the affidavit of discovery which bore Mr. Richardson’s signature was dated 23rd April, 1997.
Mr. Patrick Fitzgerald, in evidence denied Mr. Richardson’s account of meeting Mr. Hogan and Mr. Fitzgerald outside the premises of D.G. O’Donovan and Partners on 29th April, 1997.
On 2nd May, 1997, an application was made on behalf of the Minister for Transport Energy and Communications to have the application for relief by way of judicial review dismissed against the Minister on the grounds that no cause of action was disclosed against the Minister. The application was successful and the applicants claim against the Minister was dismissed. The Minister was awarded his costs of the proceedings to date against the applicants.
A number of additional steps were taken in the proceedings during May of 1997 including an unsuccessful application to the High Court for an order for discovery. When the Supreme Court (Barron J.) on 10th June, 1997, dismissed an appeal against the Order of the High Court, the IRTC was awarded its costs against the applicants.
On 19th June, 1997, the substantive proceedings were heard in the High Court.
On the 18th July, 1997, by order of the High Court (McGuinness J.) the relief sought on behalf of the applicant was refused and the IRTC was awarded the costs of the proceedings (including all reserved costs).
Michael Richardson was not advised by D.G. O’Donovan and Partners or by his fellow applicants about any aspect of the proceedings after the 15th May, 1997. He was not advised that the Supreme Court had awarded costs against him in favour for the Minister for Transport Energy and Communication. He was not advised that the High Court had awarded the IRTC its costs of the substantive action against him.
Wendi Ferris-Richardson and John Franks were never advised by Dermot G. O’Donovan and Partners or by any of their corporate fellow applicants that any order for costs had been made which affected either of them.
Mr. Madden offered Mr. Richardson employment in August, 1997. Some weeks later Mr. Richardson asked Mr. Madden “whatever happened to the case?”.
Mr. Madden replied. He said “we lost”. He said nothing about any liability as to costs.
On 25th July, 1997, Mr. Hogan sent his file on the proceedings to a Costs Drawer for the purpose of preparing a Bill of Costs.
By letter dated 2nd October, 1997, Ivor Fitzpatrick and Company on behalf of IRTC wrote to D.G. O’Donovan and Partners enclosing the IRTC’s Bill of Costs and Outlay in respect of the proceedings. It amounted to IR£84,658.17.
On 7th October, 1997, Mr. Hogan wrote to Gerard Madden enclosing a copy of the Bill of Costs and Outlay received from Ivor Fitzpatrick and Company. He advised that he had referred his own file to his costs accountants.
By further letters dated 22nd October, 1997, the 10th November, 1997, the 20th November, 1997 and 25th November, 1997, Mr. Hogan on behalf of Dermot G. O’Donovan wrote to Gerard Madden seeking an urgent meeting to discuss the costs claimed on behalf of the IRTC and to discuss his own Bill of Costs. He received no reply from Mr. Madden.
By letter dated 6th January, 1998, Mr. Hogan wrote again to Gerard Madden. He received no reply but a meeting was arranged between Michael Hogan and Gerard Madden at the end of February 1998 for the purpose of discussing the issue.
By letter dated the 14th July, 1998, Michael Richardson was advised by
Messrs Ivor Fitzpatrick and Company Solicitors on behalf of the IRTC that judgment had been registered against him in the amount of IR£66,078.43 and would be published in Stubbs Gazette. On the same date Wendi Ferris-Richardson received an identical letter. It contained advice that the same steps had been taken against her.
On 18th July, 1998, Michael Richardson had a conversation with Gerard Madden in the latter’s studio in Patrick St. At that time Michael Richardson was employed by Gerard Madden. Michael Richardson was wearing a recording device.. At the commencement of the conversation Michael Richardson reminded Gerard Madden that they had agreed that “…we’d go to court and we would see what we could do for you…”.
Gerard Madden replied “right yeah.”
Michael Richardson went on “…there would be no costs, like you would handle the costs.”
Gerard Madden clearly and audibly replied “OK”.
On the 19th July, 1998, Michael Richardson arranged to see Michael Hogan at the office of D.G. O’Donovan and Partners. Again he was wearing a recording device. He recorded his conversation with Michael Hogan.
In February of 1999 Messrs Ivor Fitzpatrick and Company on behalf of the IRTC issued bankruptcy petitions against Michael Richardson and Wendi Ferris-Richardson. This followed returns of “Nulla bona” made by the County Registrar of Limerick endorsed on the Fieri Facias Order for Costs.
The bankruptcy petitions in respect of Michael Richardson and Wendi Ferris-Richardson have been adjourned generally pending the outcome of these proceedings This was achieved with some difficulty after certain undertakings were given on behalf of Michael Richardson and Wendi Ferris-Richardson in respect of these proceedings.
These proceedings were commenced on the 28th April, 1999, (against Gerard Madden) and on 11th March, 1999, (against D.G. O’Donovan and Partners).
THE PLAINTIFFS CLAIM AGAINST GERARD MADDEN
The plaintiffs claim that in consideration of their agreement to participate in the proposed proceedings against the IRTC, Gerard Madden agreed to be responsible for all costs of and incidental to those proceedings including any liability that the plaintiffs might have to the IRTC in respect of costs.
They claim that they duly participated in the proceedings as fellow applicants for the principal benefit of Gerard Madden. They claim that, in breach of the agreement, Gerard Madden has failed and refused to discharge the costs associated with the proceedings and in particular to discharge the plaintiffs liability to IRTC in respect of costs.
They claim that as a result of Gerard Madden’s breach of contract the plaintiffs have suffered serious loss, damage, inconvenience and distress and substantial damage to their respective reputations.
THE DEFENCE OF GERARD MADDEN
Gerard Madden denies that he agreed to indemnify the plaintiff in respect of all of the costs of and incidental to the proceedings against IRTC.
He concedes that he agreed to discharge some of the costs of prosecuting the proceedings against the IRTC but he says that his agreement as to his liability to discharge those costs was restricted to the sum of IR£40,000. He says that he discharged that sum by making a series of payments by cheque, bank draft and cash, some of which were designed to give the impression that they were payments made by other parties to the proceedings.
In particular, he denies that he agreed to indemnify the plaintiffs in respect of any liability which the plaintiffs might have in respect of the costs of IRTC.
CONCLUSION
Whether or not Gerard Madden entered into an agreement with the plaintiffs to indemnify them in the manner claimed is a question of fact for determination by this court.
Having heard and considered all of the evidence adduced in this case and having carefully observed the demeanour of the various witnesses, I am satisfied on the evidence and on the balance of probabilities as follows:
The challenge by way of judicial review to the decision of the IRTC was commenced on the initiative of Gerard Madden. It was largely for his benefit. The only benefit to be derived from the proceedings by the other applicants was a possible opportunity to make a new application to the IRTC for a radio licence at a future time with a comparatively limited chance of success.
Mr. Madden stood to benefit significantly financially by delaying the decision of the IRTC on the award of a new licence. He was entitled to continue broadcasting until the award of a new licence and to enjoy the advertising and other revenues associated with that broadcasting.
He actively encouraged the other applicants (including the plaintiffs) to participate in the proceedings.
At all material times and in particular during the meeting held on 25th March, 1997, at the office of D.G. O’Donovan and Partners, Michael Richardson made it clear to Gerard Madden, to Mr. Michael Hogan, and to the other potential applicants that he did not have the resources to participate in the litigation and was not prepared to make any contribution towards the costs of or incidental to those proceedings.
Immediately after the meeting at the offices of D.G. O’Donovan and Partners on the 25th March, 1997, Michael Richardson repeated his assertion that he was not in a position to make any contribution towards the costs associated with the litigation. Gerard Madden, in the presence of Tom Nolan then assured Michael Richardson that he would “… pick up the bill…”.
Mr. Nolan, in the presence of Gerard Madden also assured Michael Richardson that “…Gerard will take care of everything….”.
On the evening of the 25th March, Gerard Madden telephoned Michael Hogan. He told Michael Hogan that he would be responsible for all costs associated with the proceedings. I accept the evidence of Michael Hogan that Gerard Madden confirmed on that occasion that he would be personally responsible for all of the costs associated with the proceedings and he made it clear that he was not referring merely to the costs incurred by Mr. Hogan in prosecuting the proceedings but would also be the responsible for any costs awarded against the applicants.
Gerard Madden sought to suggest that his recorded reply “OK” to Michael Richardson’s observation “..there would be no costs, like you would handle the costs” was in the nature of a query. Having had the opportunity to hear the recording of the conversation I did not get that impression.
At no point during the conversation did Mr. Madden demur from suggestion that he had agreed to “handle the costs”.
Between the 17th October, 1997, and the 3rd March, 1998, Michael Hogan wrote a number of letters to Gerard Madden advising him that the solicitors on behalf of the IRTC were now seeking to recover very substantial sums by way of costs due to their client. Notwithstanding the urgency of those letters Gerard Madden did not respond. Significantly he never suggested that the responsibility to discharge those costs lay with anyone other then himself.
His failure to do so was consistent with the evidence of Michael Hogan. It was
consistent with the evidence of Michael Richardson. It was consistent with the existence of an extant agreement by Mr Madden to indemnify the plaintiffs in respect of all of the costs of and incidental to the proceedings.
I am satisfied on the evidence and on the balance of probabilities that Gerard Madden expressly agreed on or about the 25th March, 1997, that he would indemnify Michael Richardson and Wendi Ferris-Richardson in respect of all of the costs of and incidental to the proposed challenge by way of judicial review in the High Court seeking to quash the decision of the IRTC.
In reaching that conclusion I have taken into account the findings of fact which I have outlined above. However I have been principally influenced on this issue by the detailed oral evidence adduced during the trial by the witnesses as to fact. The testimony of Michael Richardson, Patrick Fitzgerald, Wendi Richardson and Michael Hogan on the contract of indemnity was coherent and relatively consistent. It was supported, in part, by documentary evidence.
The testimony of Gerard Madden was unsatisfactory and inconsistent. I found him to be an unreliable witness.
I am satisfied, therefore, that although there was an agreement between the plaintiffs and Gerard Madden (in the terms outlined above), Gerard Madden has failed and refused to discharge his obligations and on foot of that agreement. It follows that the plaintiffs are entitled to recover damages from Gerard Madden to compensate them for the loss, damage, distress, disruption, inconvenience or loss of reputation which they have sustained as a result of Gerard Madden’s breach of contract.
THE PLAINTIFFS CLAIM AGAINST DERMOT G. O’DONOVAN AND PARTNERS
Mr. Simon McAleese, Solicitor, testified in relation to the steps which should, as a matter of practice, have been taken by a reasonably competent and prudent solicitor faced with the issues which faced Mr. Hogan in or around March of 1997.
He said that a reasonably competent and prudent solicitor should have:
(a) expressly and individually advised all of the parties of all risks associated with litigation and in particular of the consequences of failure including
(b) the risks of an award of costs against an unsuccessful party. This should have been achieved by way of
(c) compliance with s. 68 of the Solicitors (Amendment) Act, 1994 which requires a solicitor who receives instructions from an aspiring litigant to furnish such a client “..with… particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties ….” and that
(d) this should have been done by way of written advice to both plaintiffs
pursuant to the Law Society of Ireland’s “Guide to Professional Conduct”.
Mr. McAleese stated that in the circumstances of the instant case
Michael Hogan had a clear duty to ensure that an enforceable and coherent
costs indemnity agreement was recorded in writing between the plaintiffs and
Gerard Madden.
He said that prudent solicitors should also remind clients of their primary liability in respect of the clients’ own costs of prosecuting litigation.
It was also the testimony of Mr. McAleese that if a reasonably competent and prudent solicitor is instructed by several parties to litigation and becomes aware that one party intends to indemnify another party in respect of costs of or incidental to the litigation the solicitor has a duty to reduce to writing the basis of the contractual relationship, (i), between the solicitor and the clients and (ii), between the clients inter partes.
He said that a competent and prudent solicitor instructed by several clients with apparently divergent commercial interests should advise those clients that it may be necessary for them to seek separate and independent legal advice to protect their respective interests.
Mr. McAleese said that solicitors should keep affected clients advised of the progress of litigation at each stage of the litigation. In particular, where clients do not enjoy corporate limited liability they should be kept advised as to any adverse costs consequences which have resulted from the litigation.
No evidence was led on behalf of Messrs D.G.O’Donovan and Partners which sought to challenge the evidence of Mr McAleese.
CONCLUSION
In Roche v. Peilow [1986] I.L.R.M. 189 the Supreme Court (Henchy J.) observed at p. 196 that:
“The general duty owed by a solicitor to his client is to show him the degree of care to be expected in the circumstances from a reasonably careful and skilful solicitor. Usually a solicitor will be held to have discharged that duty if he follows a practice common among the members of the profession…Conformity with the widely accepted practice of his colleagues will normally rebut an allegation of negligence against a professional man, for the degree of care which the law expects of him is no higher than that to be expected from an ordinary reasonable member of the profession or of the speciality in question.”
Mr. Hogan, in evidence, fairly and candidly accepted that, by failing to offer any advice whatever to Wendi Ferris-Richardson at any stage about any aspect of the proceedings he had failed to adopt the appropriate practice expected of a reasonably competent and prudent solicitor in such circumstances.
I am satisfied on the evidence that had Wendi Ferris-Richardson been advised by Mr. Hogan of the risks attendant upon the proceedings (in which she was a named party) she would not have embarked upon those proceedings.
Mr. Hogan, in evidence, stated that at the meeting of the 25th March, 1997, he advised all of the proposed applicants of the risks associated with a failed legal challenge.
On the evidence it seems unlikely that he gave a warning in the terms contemplated by s. 68 of the Solicitors (Amendment) Act 1994. He certainly failed (by his own admission) to furnish Mr. Richardson “…with particulars in writing of the circumstances in which the client may be required to pay costs to any other party or parties…”.
Mr. Keane, on behalf of Dermot G. O’Donovan and Partners points out that the failure to furnish particulars in writing pursuant to s. 68 of the Act of 1994 does not per se amount to negligence. That is certainly correct.
However Mr. Hogan, on his own evidence, was conscious that Michael Richardson was unwilling to participate in any proceedings which would leave him exposed to the risk of any expense. In such circumstances there was a clear obligation upon Mr. Hogan either
(a) to take appropriate measures to protect Mr. Richardson from exposure to the risk of a liability as to costs or
(b) to comply with the provisions of s. 68 in respect of both Michael Richardson and Wendi Ferris-Richardson ( and, indeed, John Franks), so that they would be fully and adequately advised in the manner contemplated by s. 68 of the Act of 1994.
I accept the evidence of Mr. McAleese that, in the circumstances, Mr. Hogan should have kept Michael Richardson and Wendi Ferris-Richardson (and John Franks) advised as to the progress of the litigation on a continuous basis.
In particular he had a duty to advise the plaintiffs (and Mr. Franks) that orders for costs had been made against them in favour of the Minister for Transport Energy and Communications by the High Court on 2nd May, 1997, and in favour of the IRTC by the Supreme Court on 10th June, 1997.
It has been established on the evidence that the order of the Supreme Court on 10th June, 1997, affirming the order of the High Court (which had refused discovery of certain documents) comprised a severe setback to the prospects of mounting a successful challenge by way of judicial review.
Mr. Hogan and the plaintiff co-applicants were so advised by Counsel.
Inexplicably Mr. Hogan failed to advise the plaintiffs (or Mr. Franks) that the prospects of successfully prosecuting the claim were now severely reduced and there was now a real and serious likelihood of an award of costs in favour of the IRTC and against the plaintiffs.
It follows from what I have found earlier that Michael Hogan, on behalf of Dermot G. O’Donovan and Partners, was negligent and in breach of his duty to Wendi Ferris-Richardson by failing to offer her any advice at any stage of any aspect of the proceedings which he was conducting on her behalf.
As I have earlier indicated I am satisfied that if Wendi Ferris-Richardson had been advised of the risks attended upon the proceedings she would never have embarked upon the proceedings in the first instance.
Accordingly Wendi Ferris-Richardson is entitled to recover damages from the defendants to compensate her for any loss, damage, inconvenience, distress or disruption which he has sustained by reason of the defendants negligence, breach of duty and breach of contract.
I am also satisfied on the evidence that Michael Hogan, on behalf of the defendants was negligent, in breach of his duty to and in breach of his contract with Michael Richardson by failing to take any or any adequate steps to properly advise Michael Richardson (i), of the risks attendant upon the litigation upon which Michael Richardson was about to embark, (ii), that the claim might fail and, (iii), that Michael Richardson would then be primarily and personally liable to discharge the IRTC’s very substantial costs.
I am satisfied on the evidence that Michael Hogan, on behalf of the defendants, owed a particular duty to Michael Richardson to so advise Michael Richardson because he knew that Michael Richardson was unwilling (and probably unable) to pay any costs associated with the litigation.
I am satisfied also that Michael Hogan, on behalf of the defendants, was negligent, in breach of his duty to and of his contract with Michael Richardson in failing to take any or any appropriative measures to protect Michael Richardson from exposure to the risk of liability as to costs.
He had a further duty to take such steps on behalf of Michael Richardson because he knew that Michael Richardson did not enjoy the corporate protection enjoyed by his fellow applicants and was personally exposed to liability for costs.
Michael Hogan, on behalf of the defendant, was further negligent, in breach of his duty to and his contract with Michael Richardson because he failed to keep Michael Richardson advised as to the progress of the proceedings after the 15th May, 1997, and in particular failed to advise him:
(a) that an order had been made awarding costs to the IRTC against him on 10th June, 1997, and
(b) that the prospects of a successful outcome to the proceedings had been severely reduced by the 10th June, 1997.
It follows that Michael Richardson is entitled to damages to compensate him for the loss, damage, inconvenience, distress and damage to his reputation which has resulted from the negligence, breach of duty and breach of contract on the part of the defendants.
Having regard to the evidence adduced by Michael Richardson, Wendi Ferris-Richardson and John Franks, I am satisfied on the balance of probabilities that Michael Richardson wrote a letter dated 29th April, 1997, in the terms which have been outlined earlier herein. It is probable that he handed the letter to Michael Hogan in the manner which he described in evidence.
Gerard Madden said that when he was present in Michael Hogan’s office he saw that letter. He said that he remarked to himself as to its print, colour and font style. I did not find Gerard Madden’s evidence on that issue to be credible.
Accordingly I do not find that it has been established on the balance of probabilities that the letter was in Michael Hogan’s office on the date described in evidence by Gerard Madden.
Nonetheless it has been established in evidence and on the balance of probabilities that a letter dated 29th April, 1997, was delivered to Mr. Michael Hogan on or around that date. Inexplicably he failed to act upon it. He may have mislaid it. It is difficult to believe that, had he opened it and read its contents, he would not have acted upon it.
However his failure to deal appropriately with the letter comprises further negligence, breach of duty and breach of contract on the part of Michael Hogan and of D.G.O’Donovan and Partners.
DAMAGES
Mr. Keane S.C. on behalf of the defendants contends that the plaintiffs are entitled to be indemnified by Gerard Madden in respect of any loss or damage which they have sustained. He says that no evidence has been adduced indicating that they cannot recover damages from Gerard Madden to compensate them for their losses. He has relied upon the decision of the Supreme Court (Finlay C.J) in Hegarty v. O’Loughran [1990] 1 IR 148 as authority for the proposition that a tort has not been completed until damage has been caused by the wrong complained of.
He also says that damages may not be awarded if the court is satisfied on the balance of probabilities that no loss has flowed directly from the tort complained of. He relied upon the decision of the Supreme Court (Kearns J.) in the case of O’Carroll v. Diamond (Unreported, Supreme Court, 12th April, 2005) in support of that contention.
The principles identified in those cases are not in dispute. However the facts of the instant case can be clearly distinguished from the facts of both cases relied upon by Mr. Keane S.C.
In the instant case judgment has been registered against both plaintiffs in the sum of €88,902.30 (with costs and interest at the rate of 8.7% per annum from 18th July, 1997). Further orders for costs have been made against them. Efforts have been made to execute the orders for judgment and costs. Bankruptcy proceedings against the plaintiffs have been commenced and temporarily suspended. They have suffered and continue to suffer distress, convenience, disruption and damage to their reputations. Their loss and damage has been sustained over a period in excess of six years.
If Gerard Madden had discharged his contractual obligations to the plaintiffs then they would not have sustained the loss and damage which they have sustained.
If Michael Hogan had discharged the contractual and other obligations owed by D.G.O’Donovan and Partners to the plaintiff then they would not have sustained that loss and damage.
The civil wrongs complained of in both sets of proceedings have been completed. Loss and damage has flowed directly from each.
The fact that Gerard Madden is a concurrent wrongdoer with D.G.O’Donovan and Partners and that both have caused the same loss and damage to the plaintiffs is not relevant to these proceedings. The court has not been required to determine any issue as to indemnity or contribution as between the concurrent wrongdoers in either of the two sets of proceedings.
The plaintiffs have established on the evidence and on the balance of probabilities that the loss and damage which they have sustained would not have occurred in the absence of breach of contract on the part of Gerard Madden.
They have also established on the evidence and on the balance of probabilities that the loss and damage which they have sustained would not have occurred in the absence of negligence breach of duty and breach of contract on the part of D.G.O’Donovan and Partners.
It follows that the application of the principle identified inter alia by the Supreme Court (Kearns J.) in O’Carroll v. Diamond (Unreported, Supreme Court, 12th April, 2005) requires that the plaintiff should be awarded damages against the defendants in both sets of proceedings.
Since the plaintiffs have sustained loss and damage by reason of civil wrongs committed by concurrent wrongdoers they are entitled to joint and several judgment against those wrongdoers.
The plaintiffs claim damages arising out of the negligence, breach of duty and breach of contract.
They have proved that as a result of the civil wrongs of the defendants they are now liable, jointly and severally, to discharge costs in the amount of €88,902.30 together with interest thereon at the rate of 8% per annum from 18th July, 1997.
They are, accordingly entitled to recover from the defendants in both proceedings, jointly and severally, a sum by way of damages which will enable them to discharge that liability.
They are also entitled to recover from the same defendants a sum by way of damages sufficient to enable them to discharge (a), their liability to pay the additional costs incurred by the IRTC in connection with the latter’s bankruptcy proceedings against the plaintiffs (b), their liability to pay the costs incurred by the IRTC and the Minister for Transport Communications and Energy arising out of the High Court proceedings, and, (c), the costs which they have incurred in defending the bankruptcy proceedings commenced against them by the IRTC.
Finally they are entitled to recover damages sufficient to compensate them for the very substantial distress, inconvenience, disruption and the damage to their reputations which has resulted directly from the wrongs complained of.
I intend to hear Counsel for the parties upon the issue of damages before making a final order in these proceedings.
Approved: Quirke J.
Murnaghan v. Markland Holdings Ltd. & Anor
Property Damages
[2004] IEHC 432 (1 December 2004)
Judgment of Miss Justice Laffoy delivered on the 1st day of December, 2004.
The parties and the factual background
From the mid 1970s until the middle of July, 2004 the plaintiff was the owner of a mews residence at 5 Pembroke Place, Dublin 2 (No. 5). The house had been constructed in 1976 and covered the entire site. At the material time, through 2002 and during the first half of 2003, in fact until 19th July, 2003, the plaintiff resided in the house with his wife and son, who was eight years of age in 2002.
The first defendant was at all material times and still is the owner of No. 70 Leeson Close, Dublin 2 (No. 70). In the late 1990s No. 70, which abuts No. 5 and lies to the south-east of it, was used as a surface car park. In the year 2000 the first defendant applied for planning permission to develop No. 70 for commercial and residential purposes. The plaintiff objected to the application. The planning authority refused to grant permission. Subsequently, prior to June, 2002, the first defendant obtained planning permission for the erection of three apartments in a three-storey building to be built “side on” to the rear of No. 5 and its boundary to No. 70, by which I mean that the gable wall of No. 70 would be parallel to the rear wall of No. 5.
In June, 2002 the first defendant apprised the plaintiff of the existence of the planning permission and of its intention to construct to the boundary of its own site, the effect of which would be that any openings from No. 5 to No. 70 (i.e. in the rear wall of No. 5) would be effectively “blanked”. It was indicated that the first defendant might try to accommodate the plaintiff’s services in the interest of good neighbourliness, provided there was not significant cost. Subsequently, discussions took place between the plaintiff’s architect, Peter Roberts, and the architects for the first defendant, P & A Lavin Associates. The architects for the first defendant carried out a photographic survey of No. 5 both internally and externally in August, 2002. I am satisfied on the evidence that at that juncture the plaintiff’s primary concerns were the impact of the second floor of the proposed structure on the use and enjoyment of his roof terrace at second floor level in No. 5 and the access of light through a roof light in the centre of the roof terrace to the living accommodation at first floor level in No. 5. I am further satisfied on the evidence that before the construction work commenced on the site of No. 70 in November, 2002 the first defendant, through its architects, had agreed that the floor plan at second floor level of the building on No. 70 would be set back by 1.5 metres approximately from the roof terrace on No. 5 to meet the plaintiff’s concerns and that the building on No. 70 would be constructed at a distance of between 100 mm and 150 mm from the rear of No. 5 so as to prevent the two buildings touching and to accommodate ventilation of No. 5 and a rainwater pipe attached to its rear wall. There was also an understanding that no work would commence on the site of No. 70 before 8 a.m. and that, if it was necessary to work on the site at weekends, the plaintiff would be notified in advance.
The second defendant was the contractor retained by the first defendant to construct the building on the site of No. 70. The construction work commenced in late November, 2002 and continued until these proceedings were initiated on 5th June, 2003.
The proceedings
These proceedings were initiated by a plenary summons which issued on 5th June, 2003. On the same day, the plaintiff applied for and was granted an interim injunction restraining the defendants from carrying out any further works on No. 70, the building on which at that stage was substantially constructed, it being common case that 80% of the dead weight of the structure was in place. At the trial of the action both defendants launched what can only be described as a vituperative attack on the credibility of the plaintiff. The attack was grounded in part on assertions that the plaintiff failed to make proper disclosure to the court when applying for the interim injunction (the assertion of the second defendant) and that the plaintiff’s application was an abuse of the process of the court (the assertion of the first defendant).
In his affidavit grounding the application for the interim injunction, which was sworn on 5th June, 2003, on which he was cross-examined at length, the plaintiff averred that, while he had occasion to complain about noise and vibrations at various times as the works progressed on No. 70 from November, 2002 to May, 2003, in general he was not dissatisfied with the works. However, he was concerned “over the possibility of damage” to his house during the piling operations on No. 70 and the work he observed “where [the defendants] have excavated material from the wall dividing the properties that is material beneath the foundations of my house”. He went on to outline various problems on his premises which he ascribed to the defendants: that the rainwater hopper, which drained his roof terrace, had become blocked in early May, 2003; that there was ingress of water into his premises at various locations in the living room and garage areas on 20th May, 2003, resulting in water staining to the living room ceiling and walls which worsened with time; that the cistern of a toilet in the ground floor bathroom was broken resulting in flooding of the ground floor level of the plaintiff’s premises on 29th May, 2003; that there were cracks in various parts of the premises; that the building on No. 70 had been built up to the boundary of No. 5 despite the agreement of the first defendant to maintain a gap; that the rainwater hopper and down pipe on the plaintiff’s premises appeared to have been destroyed; and that water damage was evident in various parts of his house.
The application for the interim injunction was also grounded on the affidavit of Brendan Molloy, a consulting engineer, who had been retained by the plaintiff on 4th June, 2003. Mr. Molloy averred in his affidavit, which was also sworn on 5th June, 2003, that he had visited the plaintiff’s premises on 4th June, 2003 and that he observed significant water stains at various areas in No. 5, cracks both externally and internally, significant damage to the rainwater hopper rendering it ineffective, water dripping into the living room at first floor level and the bathroom, cloakroom and garage at ground floor level and the absence of a gap between the two buildings. Mr. Molloy expressed the opinion that the damage which he outlined was caused by works being undertaken on No. 70. He averred that he was satisfied that the structure and fabric of No. 5 had been damaged but that the extent of the damage was not capable of quantification until such time as a comprehensive survey could be undertaken. He expressed the opinion that the continuation of the works would in all probability result in further damage to the structure and fabric of the plaintiff’s premises.
The plaintiff’s application for an interlocutory injunction in the terms of the interim injunction was returnable for 11th June, 2003. Although the application was strenuously resisted by the first defendant, as is recited in an order of the Court (Finnegan P.) of that day, there was agreement between the plaintiff and the first defendant “to arrange to have their respective engineers and/or architects to meet to agree a schedule of investigations to be conducted with a view to ascertaining the cause and extent of any damage to the plaintiff’s premises”. On that basis the interim injunction against the first defendant was vacated. While the injunction against the second defendant was to continue, the reality of the situation was that the second defendant was out of the picture by then and did not become an active player in the proceedings until May, 2004, having gone into voluntary liquidation on 3rd July, 2003.
The first defendant continued to resist the application for an interlocutory injunction and issued a motion to be discharged from the agreement or undertaking recited in the order of 11th June, 2004 on the ground that the plaintiff had been misled by the defendant as a to material fact. Eventually, agreement was reached on 25th July, 2003 between the plaintiff and the first defendant, which resulted in that motion and the plaintiff’s motion for an interlocutory injunction being struck out. In the agreement the first defendant undertook to complete the building at No. 70 in such a way as not to cause damage to No. 5. Further, the first defendant agreed “to facilitate an inspection by means of bore holes at locations (to be agreed by the engineers) of the foundations of both buildings”, the inspection to be a joint inspection, the results to be shared between the parties and to take place as soon as possible but no later than 23rd August, 2003. The parties also agreed a timetable for the procedural aspects of the proceedings with a view to securing an early trial. The agreement was expressed to be “without prejudice to the position of the plaintiff that he was at all times candid and honest in his evidence to the Court”.
Events after the commencement of the proceedings
Just as the focus on the interim and interlocutory applications at the trial of the action was unusual, so too was the degree of focus on events which occurred after the proceedings were initiated.
While the interlocutory applications were still running their course, on 1st July, 2003 Mr. Molloy advised that the plaintiff and his family should vacate No. 5 as soon as possible for a number of reasons. The primary reason was the continuing substantial and major water leak into No. 5. Mr. Molloy reported as follows:
“This water ingress has been absorbed by the block work walls, plaster to walls, dry lining to walls, concrete ceiling/floor slabs, plaster to ceilings, timber floors, timber skirtings, other timbers, furniture including beds, soft furnishings, personal belongings including clothes, etc. Mould has developed on plasterwork. Mould is likely to develop behind dry lining to walls. Mould will develop on and damage clothes. The extensive damp and mould growths have created the situation where No. 5 is not at present suitable for habitation. When all leaks are permanently sealed, it will be a considerable time before the house has dried out sufficiently to be reoccupied.”
The other reasons were that the investigative and remedial works to the structure would result in excessive noise, dust and further moisture from wet plaster and a further drying out period would be necessary when the works were completed; the ventilation to the bathrooms had not been restored; and there were no agreements in place as to the methods of investigations, the required remedial works and work procedures. A copy of Mr. Molloy’s advice was sent to the solicitors for the first defendant on 7th July, 2003. Following Mr. Molloy’s advice the plaintiff and his family vacated No. 5 and took a one-year lease of a house in Wellington Road, Dublin 4, at a monthly rent of €5,000. Subsequently, the lease was extended for a further six months at the same monthly rent. The plaintiff and his family never re-occupied No. 5 and were still in the house at Wellington Road at the time of the trial of the action.
The first defendant has always contended that the application for the interim injunction was unnecessary, a contention to which I will return. However, during the early stages of the dispute it was agreeable that the respective architects or engineers of the plaintiff and the first defendants should enter into discussions and inspect No. 70 with a view to resolving the dispute by agreement. This crystallised into the agreement recited in the order of Finnegan P. dated 11th June, 2003. One of a number of on-site meetings took place on 20th June, 2003 at which the plaintiff was represented by Mr. Roberts and Mr. Molloy. The first defendant was represented by Tim Lavin of P.A. Lavin Associates and Jack O’Regan of McElroy Associates, Consulting Engineers. John Terry, the builder retained by the first defendant in place of the second defendant to complete No. 70, was also present. On 27th June the first defendant, through its solicitors, offered to undertake “further investigations and works”, eight items in all, to No. 5 and No. 70. This offer was made in the context of a complaint by the first defendant that it had suffered serious delay in finalising its building project on No. 70; that the offer was being made to avoid further “burdensome and oppressive” delay; that there was no evidence to suggest that the construction of the building on No. 70 had caused any damage to No. 5 to date or that the carrying out of the proposed works was necessary to avoid damage to No. 5, with the exception of the replacement of the rainwater hopper head, which at the site inspection on 20th June had been found to be filled with concrete; and that there was no necessity to address the foundations of both or either buildings, as had been suggested by Mr. Molloy.
On 4th July, 2003 the plaintiff effectively made a counter offer by submitting a schedule of works of that date prepared by Mr. Molloy to the solicitors for the first defendant. Mr. Molloy’s schedule was substantially the same as the first defendant’s list of items but with two additional items: (1) to open up the base of the wall at No. 70 adjoining the No. 5 rear wall to check if the buildings were touching at that level and to examine the underside of the concrete raft (i.e. the raft foundation) to No. 5 to see if the raft had been undermined in the course of the site works; and (2) to carry out all such works as would be deemed necessary as a result of the inspections at the opened up areas. On 9th July the solicitors for the first defendant signified that the first defendant was amenable to immediately carrying out the works specified in Mr. Molloy’s schedule, with the exception of the two additional items, but without admitting that it had caused damage to No. 5. Both Mr. Roberts and Mr. Molloy were of the view that the additional investigations suggested by Mr. Molloy should be undertaken. The plaintiff’s solicitors apprised the solicitors for the first defendant on 11th July that, so long as the first defendant refused to deal with Mr. Molloy’s additional items, the plaintiff was not disposed to consent to the remainder of the works being undertaken, as they might require to be undone following the additional investigations suggested by Mr. Molloy.
There was a stalemate until the agreement of 25th July was entered into. By 25th July it had become apparent that, while there was a cavity between the rear of No. 5 and the gable of No. 70, the two buildings touched at a number of points in that the floor slabs of the first and second floor balconies of No. 70 and the parapet wall of the second floor balcony had been cast against the rear wall of No. 5. The offer of the first defendant of 27th June included the saw cutting and removal of a 50 mm wide section of each of these features and the installation of a soft joint between the buildings at those points. More controversially, arising out of the evidence put before the court by the first defendant on the application for the interlocutory injunction, it had become apparent that the ground beam of No. 70, which carried the gable wall of No. 70, was cast to the side of the foundations of No. 5, giving rise to a concern on the part of Mr. Roberts and Mr. Molloy that the foundations of the two buildings were touching and that pressure was being applied from No. 70 to the foundations of No. 5.
The works listed in Mr. Molloy’s schedule of 4th July, other than the additional items, were carried out by the first defendant. With the exception of the works to the rainwater hopper, the works were carried out by the end of August. While a temporary rainwater hopper and drainage system had been in place from the end of June, it was not until mid-October that the work on replacing the hopper head and the related works were completed.
The inspections by means of bore holes at locations of the foundations of both buildings, which were the subject of the agreement of 25th July, did not take place by 23rd August as had been agreed. There were various reasons for the delay: the builders’ annual holiday period; obtaining confirmation of the insurance cover held by the builder retained by the plaintiff; and accommodating the time schedules of the many professionals involved. In any event, the work commenced on 11th September and continued through 12th and 15th September. In the overall scheme of things, I do not think that the delay is of any significance. Mr. Roberts and Mr. Molloy represented the plaintiff in connection with the works and inspections and Mr. O’Regan represented the first defendant and Paschal Lavin of P & A Lavin Associates attended on occasion on behalf of the first defendant.
Mr. Molloy prepared a report of 29th September on the result of the inspections and that was furnished to the solicitors for the first defendant on 10th October. Mr. O’Regan was not called to give evidence and the report of McElroy’s has not been put before the court. Apart from the points of contact between the two buildings which had already been identified and, indeed, addressed in the letter of 27th June from the solicitors for the first defendant, Mr. Molloy’s report revealed that the ground beam and gable wall of No. 70 touched and in part rested on the full length of the raft foundation of No. 5. It was his opinion that the cracks he observed in No. 5 had been caused by the pressure exerted on No. 5 by the building on No. 70. The latter building was substantially heavier, more rigid and more robust (the gable wall being a 215 mm solid block wall) than No. 5 (the rear wall being a 215 mm hollow block wall), so that No. 5 had yielded to the pressure and had suffered damage at various locations. As I understand it, Mr. Molloy’s opinion was that the pressure had been exerted through all of the points of contact. He expressed the view that No. 5 had also suffered damage as a result of the imposed load on the edge of the raft and as a result of “the undermining of the edge of the raft during the construction” of No. 70. In consequence the edge of the raft dropped and the rear wall of No. 5 moved towards No. 70, thereby, in Mr. Molloy’s opinion, adding to the pressure exerted at the contact points between the two buildings. Mr. Molloy’s conclusion that the edge of the raft was undermined during the construction of No. 70 was based on the evidence of the plaintiff of what he had observed during the course of the piling operations on No. 70, which I have quoted earlier.
In his report of 29th September, 2003 Mr. Molloy advised that No. 5 and No. 70 should be fully separated at all points of contact to ensure that no further damage would be caused to No. 5. He elaborated on this advice in a report to the plaintiff’s solicitors of 10th October, 2003. He reiterated that it was imperative that the two buildings be immediately fully separated to prevent further damage to No. 5. He outlined a number of ways in which this could be done. He discounted the first two. The first was to open up the gable wall of No. 70 to gain access to the cavity between the two buildings, so that the edge of the gable wall and the ground beam could be cut back a minimum of 50 mm from the raft of No. 5. He was of the view that, because of the depths of the ground beam, the gable wall and the adjoining raft and the narrowness of the cavity, this would be difficult to achieve. He also opined that the cutting back of the ground beam might weaken the structure of No. 70 and cause it to lean further towards No. 5. The second was to open up sections in the rear wall of No. 5 to gain access to the cavity for the cutting back works, but he considered that it would be equally difficult to achieve full separation for the same reasons. Moreover, he was of the view that it would be virtually impossible to replace the gable wall without subsequent uncontrolled cracks appearing in the structure of No. 5. The third option would achieve full separation. That would involve the demolition of No. 5, cutting back the ground beam and gable wall of No. 70 and then rebuilding No. 5. It is implicit that the fourth option was to demolish and rebuild No. 70, but Mr. Molloy’s opinion was that it would be substantially cheaper to demolish and rebuild No. 5 because No. 70 was about four times the size of No. 5. Mr. Molloy pointed out that the third option would require full architectural and engineering drawings and specifications and that planning permission would have to be obtained for demolition and reconstruction. He also pointed out that the plaintiff would be subject to the vagaries of the planning process: the possibility of a third party objection or an appeal and the possibility of a grant of permission being subject to conditions.
On the basis of Mr. Molloy’s advice, in furnishing additional particulars of damage alleged to have been caused to the plaintiff’s premises on 17th October, 2003, the plaintiff’s solicitors stipulated that the areas of contact between the buildings at raft foundation and ground beam level required to be cut back to provide a 50 mm minimum separation gap. However, it was not indicated how this was to be done. On the evidence, it would appear that there was no response, positive or otherwise, from the first defendant as to whether this was a necessary or appropriate engineering solution. On the evidence it would appear that it was only when further particulars of special damage were delivered to the solicitors for the first defendant on 4th May 2004 that a claim for special damages based on the necessity to demolish and reconstruct No. 5 was put forward.
After 17th October, 2003 the plaintiff and the first defendant concentrated their efforts on preparing for an early hearing of the action, which was first scheduled for February, 2004, but was adjourned, and was then scheduled for hearing on 17th May, 2004 but was also adjourned, because the second defendant had come back into the proceedings.
The next significant event is that at the beginning of May, 2004 the plaintiff decided to sell No. 5. On 4th June, 2004 he entered into a contract to sell No. 5 to James Staunton and another person at a price of €830,000, the closing date to be 14th July, 2004. The sale was duly completed, whereupon the plaintiff ceased to be the owner of No. 5.
Following the agreement of 25th July, 2003 the building on No. 70 was completed.
The plaintiff’s claim at the hearing
Having regard to the events which had occurred since the proceedings were initiated, the only relief which the plaintiff could pursue at the hearing of the action was damages. The plaintiff sought damages for breach of agreement, negligence and breach of duty, and for trespass and nuisance. The plaintiff presented his claim for special damages on two alternative bases: on the basis of demolishing and rebuilding No. 5; and on the basis of acquiring an alternative house to No. 5. Aside from a claim for expenditure incurred by the plaintiff up to the date of trial, the quantum of the claim on the first basis was in excess of €1,000,000. While a Bill of Quantities prepared by David J. Turner & Associates, Chartered Quantity Surveyors, was put before the court, which estimated the cost of the rebuilding work (inclusive of Value Added Tax) at almost €700,000, the Bill of Quantities was not proved nor was it admitted in evidence by agreement of the parties. Its only significance is that it was one of the components of one of the plaintiff’s alternative bases of claim. Aside from the claim for expenditure by the plaintiff to the date of the trial, the quantum of the claim on the second basis was €1,187,687, which was quantified on the basis that the plaintiff would incur a shortfall of €920,000 on the acquisition of a comparable house to No. 5 after giving allowance for the sum of €830,000 which he received on the sale of No. 5, which put the open market value of a comparable house in good condition at €1,750,000. The balance was made up of the following:
• Estate agent’s fees and solicitors’ fees on the disposal of No. 5.
• Stamp duty and solicitors’ fees on the acquisition of the alternative property.
• The cost of alternative accommodation for three months for works and fit out.
• The cost of soft furnishings and white goods.
• The cost of installation of a t.v. system, automatic watering system, remote-controlled garage doors and light fittings.
• Removal costs to the alternative property.
In relation to each basis of quantification, the plaintiff also claimed expenditure incurred to the commencement of the trial, which included fifteen months’ rent at €5,000 per month and stamp duty on the lease, as well as removal expenses to the
rented accommodation and the cost of works to No. 5, including the opening up works which were carried out on 11th September, 2003 and on subsequent dates.
In his statement of claim, the plaintiff also claimed aggravated damages for trespass and nuisance against both the defendants. No basis to support a claim for aggravated damages was outlined in the statement of claim and no evidence was adduced which would support such a claim. The claim for aggravated damages was forgone in the plaintiff’s final submissions.
The stance adopted by the first defendant
The defence of the first defendant was delivered on 9th September, 2003, before the opening up and joint inspection pursuant to the agreement of 25th July occurred. In essence the first defendant fully traversed every allegation and claim made by the plaintiff and did not resile from that position prior to the commencement of the hearing. In particular, the first defendant denied that there was an enforceable agreement arising out of the discussions between Mr. Roberts and Mr. Lavin in the autumn of 2002 and pleaded that the requests of the plaintiff were performed without any consideration being extended by the plaintiff and in a spirit of good neighbourliness. It was pleaded that there was a gap of 100 mm to 150 mm between the two buildings, but it was denied that the maintenance of a gap was necessary to preserve the structural integrity of No. 5. It was denied that No. 5 had suffered or sustained any damage. Further, it was pleaded that, if it had, the first defendant would rely on deficiencies in the condition of the premises or “innate vice in its design or construction” as constituting the operative cause. The first defendant reserved its right to establish that any damage occurred by acts of omissions of third parties or by the failure of the plaintiff to adequately rectify or address deficiencies so caused. The first defendant denied nuisance, trespass, breach of agreement, breach of undertaking, negligence, breach of duty and every particular thereof pleaded, as well as denying that the plaintiff incurred any loss or damage. Specifically the first defendant denied that noise and vibration was caused by its works and, if it was, that such constituted a nuisance or extended beyond reasonable user of No. 70. The first defendant also specifically denied causing water ingress to No. 5. It was further pleaded that the plaintiff had failed to mitigate any loss he had suffered by acting in an unreasonable and excessive fashion.
At the close of the opening of the plaintiff’s case by his counsel, counsel for the first defendant confirmed that the first defendant was relying on its defence, that it disputed any liability for damage caused to No. 5 and, if the first defendant had any liability, the plaintiff’s claim was grossly overstated. Certain concessions, however, were made on liability when the first defendant went into evidence at the end of the ninth day of the trial.
The stance adopted by the second defendant
The plaintiff obtained judgment in default of defence against the second defendant and by order of the court (Carroll J.) made on 15th December, 2003 it was directed that the damages to which the plaintiff is entitled should be assessed. Subsequently, on 6th May, 2004 the second defendant, as I understand it on disclosure to the court that it was defending through an indemnifier, was given liberty to deliver a defence. In its defence, which was delivered on 10th May, 2004, the second defendant denied that the plaintiff suffered any loss, damage, inconvenience or expense and further pleaded that the plaintiff was guilty of contributory negligence in failing to minimise his loss. While the order of 15th December, 2003, following the statement of claim, gave judgment to the plaintiff against the second defendant for, inter alia, breach of agreement and/or undertaking, I am satisfied that no breach of agreement or undertaking was pleaded by the plaintiff against the second defendant and that no evidence has been adduced of a breach of agreement by the second defendant. Accordingly, I am satisfied that, as between the plaintiff and the second defendant, there is an error in the order of 15th December, 2003 and that the second defendant is liable to the plaintiff only for loss occasioned by its negligence, breach of duty, trespass or nuisance.
The position of the defendants inter se
The first defendant has served on the second defendant a notice that it is entitled to claim a contribution or indemnity from the second defendant. It was agreed by the defendants that the issues between the defendants should be left in abeyance until the issues between the plaintiff and the defendants were determined.
Measurement of damages: the law
The largest element in the plaintiff’s claim is for the damage allegedly occasioned to No. 5 as a result of the wrongful acts and omissions of the defendants. Both defendants submitted that the court should follow Munnelly v. Calcon Ltd. [1978] I.R. 387, in which the Supreme Court considered the measure of damages which should be applied when a plaintiff’s building has been negligently damaged or destroyed by a defendant. In considering that issue, Henchy J., in his judgment, queried whether it was to be the cost of reinstatement or the amount by which the property had been diminished in value. He answered the questions as follows:
“I do not consider that reinstatement damages, which may vastly exceed damages based on diminished value, are to be awarded as a prima facie right or, even if they are, that the plaintiff’s intentions as to reinstatement should be the determining factor. I do not think the authorities establish that there is a prima facie right to this measure of damages in any given case. In my view, the particular measure of damages allowed should be objectively chosen by the court as being that which is best calculated, in all the circumstances of the particular case, to put the plaintiff fairly and reasonably in the position in which he was before the damage occurred, so far as a pecuniary award can do so.”
Having accepted two principles identified by May J. in C.R. Taylor Ltd. v. Hepworths Ltd. [1977] 1 W.L.R. 659 –
“… first, that whenever damages are to be awarded against a tortfeasor or against a man who has broken a contract, then those damages shall be such as will, so far as money can, put the plaintiff in the same position as he would have been had the tort or breach of contract not occurred … secondly, the damages to be awarded are to be reasonable, reasonable that is as between the plaintiff on the one hand and the defendant on the other …”
as being basic to, although not necessarily exhaustive of, the concept of restitutio in integrum on which the law of damages rests in cases involving damage to or destruction of a building, Henchy J. went on to say:
“It is in the application of those principles that difficulty may arise, for a court, in endeavouring to award a sum which will be both compensatory and reasonable, will be called on to give consideration, with emphasis varying from case to case, to matters such as the nature of the property, the plaintiff’s relation to it, the nature of the wrongful act causing the damage, the conduct of the parties subsequent to the wrongful act, and the pecuniary, economic or other relevant implications or consequences of reinstatement damages as compared with diminished value damages. The reported cases, therefore, require to be viewed primarily as exemplifications of the application to special facts of the two principles to which I have referred.”
In this case, there can be no question of the plaintiff being awarded damages commensurate with the cost of demolishing and rebuilding No. 5. The plaintiff has ceased to be the owner of No. 5 and is not in a position to effect reinstatement. Therefore, if the plaintiff has established that No. 5 was damaged by reason of the wrongful acts or omissions of the defendants, as was conceded in the closing submissions of counsel for the plaintiff, the measure of the plaintiff’s damages is the resulting diminution in the value of No. 5. To put it another way, the measure of damages is the difference between the value of No. 5 undamaged and the value of No. 5 damaged in consequence of the defendants’ wrongdoing. As the evidence has unfolded in this case, if No. 5 is damaged, the only basis on which the damaged value can be deduced is by reference to what a prospective purchaser would consider to be the impact on the value of the damage, having regard to its nature and extent and the cost of remedying it.
On the central question in this case, and noting that the second defendant has been found liable by default, the issues which fall to be considered are:
(1) the nature and the extent of the damage, if any, to No. 5 caused or likely to result in future from the wrongful acts of the defendants or either of them; and
(2) if such damage is established, the diminution in the value of No. 5 resulting from it.
Nature and extent of damage caused or likely to be caused to No. 5
This issue falls to be determined primarily on the expert evidence adduced by the plaintiff and the first defendant at the trial. Mr. Roberts, who, on behalf of the plaintiff, had been involved in discussions with P & A Lavin and Associates in the autumn of 2002 testified on behalf of the plaintiff. He was present at the site inspection on 20th June, 2003 and an earlier site meeting held on 10th June, 2003 which involved the architects and engineers of the first defendant, as well as personnel from the first defendant and personnel from the second defendant, and Mr. Molloy. However, he had not advised the plaintiff specifically in connection with the application for the interim injunction. Mr. Roberts had been advising the plaintiff since 1997 in connection with the remedying of damage to No. 5 allegedly caused as a result of vibration in the course of building works on adjoining property at Kingram Lane, Dublin 2 owned and occupied by Siemens Nixdorf Information Systems Ltd. (Siemens) in 1995, which is the subject of Circuit Court proceedings against Siemens which were initiated in 1996 and are still pending. Mr. Roberts was also involved in advising the plaintiff in connection with litigation against McMenamin & Co. Ltd., the first builder retained by the plaintiff to remedy the damage allegedly due to the works on the Siemens’ property, which litigation was resolved earlier this year. I am satisfied, on the basis of Mr. Roberts’ evidence, that the damage to No. 5, including cracking, which dated from 1995 was repaired and made good by 1999.
Mr. Molloy also testified on behalf of the plaintiff, as did Mr. Patrick Murphy, a consulting engineer with Thomas Garland and Partners, Consulting Civil and Structural Engineers, who was retained by the plaintiff in April, 2004 to give a second opinion on the engineering aspects of the case.
Mr. Patrick Delahanty of Larsen Foundations Ltd., the piling contractor retained by the first defendant in relation to No. 70, was called by the plaintiff to prove the piling records, which the first defendant was not prepared to admit, and to testify as to the implementation of the piling works at No. 70.
None of the professionals who had been retained by the first defendant in connection with the development of No. 70, the personnel in P & A Lavin Associates and McElroy Associates, were called to give evidence on behalf of the first defendant nor were any of the first defendant’s in-house professionals who were involved in the development. Apart from valuation evidence to which I will refer later, the only evidence adduced by the first defendant was that of John Moylan of Moylan, Consulting Engineers and Project Managers, who received instructions from the solicitors for the first defendant in February 2004 in connection with these proceedings. Mr. Moylan’s report, which was dated 4th June 2004, was furnished to the plaintiff’s legal advisors after the second day of the hearing. It was admitted in evidence by agreement. An assessment of the estimated cost of remedial works prepared by O’Malley Associates, Chartered Quantity Surveyors, based on Mr. Moylan’s evidence, was admitted in evidence and agreed by the plaintiff as to the cost of the works to which it related, on the following bases:
(a) that the first defendant did not accept that all of the works to which it related are necessary, and
(b) that the plaintiff did not accept that those works represent an engineering solution to the damage to No. 5.
I propose considering the nature and extent of the damage caused to No. 5 by the works on No. 70 under four headings: cracking; damage resulting from water ingress; damage resulting from points of contact between the two buildings other than the foundations; and damage resulting from the contact at foundation level.
Cracking
It was not disputed that there was extensive cracking in No. 5 from June 2003 onwards – in ceilings, in floors, and in and between walls and partitions. There was a serious dispute as to whether the cracking was mainly superficial, which was Mr. Moylan’s opinion, or was structurally significant, which was Mr. Molloy’s opinion. This dispute was reflected in a conflict as to the proper method of measuring cracks, whether using callipers, as advocated by Mr. Molloy, or a crack width gauge, as advocated by Mr. Moylan. It was also reflected in a serious conflict as to the measurement of cracks which were itemised, on the basis of inspections carried out by Mr. Molloy in September or October 2003, in the particulars delivered by the plaintiff on 17th October 2003. These were subsequently inspected and assessed by Mr. Moylan on 4th May 2004. Mr. Moylan ascribed the cracking he observed to a number of causes: possibly damage by vibration when the foundation of No. 70 was being piled; the original method of construction of No. 5; vibration caused by construction work on another adjoining property, the Siemens property; and the effect of the passage of time, in other words, wear and tear. Although not resiling from his opinion that the cracking which existed in the building when he carried out his main inspection was relatively minor in terms of structural and foundation implications, and that the only possible cause of the cracking attributable to No. 70 was some vibration, in his evidence Mr. Moylan adopted a pragmatic approach. Given the existence of the pre-works photographic survey carried out by the architects for the first defendant in August 2002, and given that the only change which had taken place in the environment of No. 5 in the interim was the construction work on No. 70, he accepted that the cracking probably had been caused by vibration in the course of the construction works on No. 70. He also accepted that the cracking should be repaired and made good by the defendants.
I think it was proper for Mr. Moylan to adopt that approach. I am satisfied on the evidence that, as a matter of probability, the cracking which became manifest in No. 5 in 2003 was a consequence of the construction works being carried out on No. 70. Therefore, whether the mechanism which gave rise to the cracking was vibration set up during the construction works or pressure resulting from the contact between the two buildings, the defendants are responsible for the existence of the cracks.
Water ingress damage
In his report of 4th June 2003 Mr. Moylan recorded that No. 5 had suffered significant localised water damage. He referred in particular to the damage in the vicinity of the rainwater pipe which was located on the rear wall of No. 5. In his report he suggested that, based on the photographic survey carried out in August 2002, it might prove very difficult to successfully argue that the dampness was not caused by the construction works on No. 70. The question of water ingress damage was not addressed in Mr. Moylan’s oral evidence.
Again, in my view, Mr. Moylan was correct to adopt the approach he adopted. I am satisfied, on the evidence, that the ingress of water into No. 5 and the consequential damage was a result of the building operations on No. 70. In the closing submissions of counsel for the first defendant it was conceded that the defendants must accept responsibility for the initial incursion of water. Curiously, however, it was submitted that there is no evidence to link the breaking of the cistern on 29th May 2003 with the activities of either of the defendants. Noting that it was not put to the plaintiff that there was another cause for the breakage, I consider that the proper inference to be drawn from the evidence of the plaintiff is that the damage to the cistern and the consequent release of water is attributable to construction activity on No. 70.
Accordingly, subject to the issue of mitigation of damage insofar as it is relevant, I consider that the defendants are responsible for the damage occasioned by the ingress and release of water into No. 5 and for repairing and making it good.
Points of contact other than the foundations
The work of eliminating the contact points, other than at foundation level, was carried out at the expense of the first defendant and was completed by the end of August, 2003. This was acknowledged by the plaintiff in the additional particulars furnished on 17th October, 2003 subject to one qualification, which was stipulated by Mr. Molloy, that the separation joint to the second floor balcony slab and wall should be opened up for inspection. The circumstances in which Mr. Molloy was prevented from checking this joint at the end of August, 2003 – that the mastic was already in place when he arrived for his inspection and that it would have been a messy operation to interfere with it – were the subject of considerable debate at the hearing and, in my view, are understandable. It is surprising, however, given that in his report of 4th June 2004 Mr. Moylan stated that it might be necessary to carry out further investigations to confirm that the required separation had been achieved, that the plaintiff’s engineers were not facilitated subsequently. Moreover, it was recognised during the course of the cross-examination of Mr. Murphy that “detective work” required to be carried out to the building.
Subject to whatever the “detective work” would reveal, I am satisfied that the damage resulting from the contact of the two buildings, other than at foundation level, was arrested in August 2003 and that no further damage is likely. On the evidence, I think it is improbable that the “detective work” would disclose anything adverse to the interest of the owner of No. 5, which would not be revealed when addressing contact at foundation level, but I am at loss to understand why this element of uncertainty was not eliminated from the case over a year ago.
Contact at foundation level
The crucial issues in assessing the nature and extent of the damage to No. 5 occasioned by the construction works carried on in No. 70 are twofold: whether it is probable that contact between the two buildings at foundation level has already given rise to structural damage in No. 5 and will give rise to such damage in the future; and, if so, how the consequences can be satisfactorily addressed. Aside from the conflict in relation to the extent and significance of existing cracking, which is a key element of the first of these issues, in the light of what I have said in the next three preceding sections, these are the real issues in the case.
On the evidence certain facts are not in dispute. The foundation on which No. 5 was built in 1976 was a raft foundation. The foundation of No. 70 is a piled foundation. Good building practice requires that, where a new building is being constructed alongside an existing building, there should be a joint between the two, in other words, there should be a separation at every level, including foundation level to allow for differential settlements, thermal movements, shrinkage in the new buildings works and such like. The requirement for separation applies particularly at foundation level where, as here, the foundation types are different. The plans in accordance with which No. 70 was to be constructed provided that there would be a joint. However, as No. 70 has been constructed there is no joint present. The ground beam which supports the rear wall of No. 70 has been cast tight up against the edge of the raft foundation of No. 5. That this is the case has been observable since the openings were made in accordance with the agreement of 25th July, 2003 in the following September. This fact was observed by Mr. Moylan and reported on by Mr. Moylan in his report of 4th June 2004, although he expressed the opinion that up to then the absence of a joint had not caused any structural problems to No. 5.
Accordingly, as the first defendant failed to observe normal good building practice in installing the foundation of the building on No. 70, it breached the duty of care owed to the plaintiff as the adjoining property owner. The agreement between the respective architects as to the maintenance of a gap was not implemented. Notwithstanding that the defence of the first defendant, as pleaded, indicated that it was not the intention of the parties that there would be a legally binding agreement, in its closing submission the first defendant accepted that there was an agreement, which I assume to mean an agreement enforceable against it.
As to whether the contact at foundation level had already resulted, or would be likely to result, in structural damage to No. 5 and, if so, how the consequences should be addressed, at the hearing these issues largely evolved into a clash of opinion between two experienced consulting engineers, Mr. Murphy and Mr. Moylan.
As has been stated, Mr. Murphy was retained in April of this year to give a second opinion on the damage to No. 5 from an engineering perspective. His inspection was visual only, but he had the benefit of some of Mr. Molloy’s reports.
In his report of 4th May, 2004 Mr. Murphy specifically addressed the cause of the horizontal cracking in a reinforced concrete edge beam located at second floor level over the stairs in No. 5, which he was informed had first manifested itself in October, 2003. In his view, the crack resulted in the release of stresses built up from the pre-cast floor units supported by the beam. He concluded that the stresses could have been caused either by the pressure on the structure of No. 5 from No. 70 at the points of contact which had previously existed (other than the contact at foundation level) or could have been due to shock from vibrations transmitted through the points of contact or the combination of both. Mr. Moylan’s opinion was that this horizontal feature was not a crack at all but was a joint between two different concrete members which were cast at different times. Mr. Molloy’s evidence was that, if it was a joint, it was a joint that opened up, and that was a crack, and it had been caused by the release of latent stresses. Both Mr. Molloy and Mr. Murphy used this feature to illustrate the point that cracking may occur in concrete due to the release at a later date of stresses which have built up earlier in time. That is its principal relevance to the issues I am considering now, because Mr. Murphy acknowledged that the forces which in his opinion had caused the cracking had ceased to exist.
Mr. Murphy, on the basis of information he had, expressed the view in his report that it was likely that the lower part of the ground beam of No. 70 alongside the raft had become a supporting ledge to the edge of the raft, with the effect that one edge of a floating structure had become rigidly supported giving rise to the possibility of differential deflections in the raft with consequent stresses in the structure over it, which could cause ongoing cracking. The information on the basis of which Mr. Murphy formed this view was a statement in the earliest report furnished by Mr. Molloy, his report of 9th June, 2003, that he had been informed by the plaintiff that “the raft to No. 5 was undermined during the piling operations”. That statement, in turn, was based on the plaintiff’s averment in his affidavit grounding the application for the interim injunction in relation to the excavation of material from beneath the foundations of No. 5. The plaintiff was subjected to strenuous cross-examination by counsel for the first defendant as to whether this event occurred and it was suggested that, if it had, he would have consulted Mr. Roberts, which he had not done. I accept the plaintiff’s evidence that during the initial stage of the construction works on the site of No. 70 he observed a digger scooping earth at his rear wall and perceived that it was removing material from under his wall, because it seems to me highly probable that such an event occurred having regard to the manner in which the building on No. 70 has been constructed. However, I am not prepared to conclude that this resulted in an undermining of the raft to No. 5 in the sense suggested by Mr. Molloy and acted on by Mr. Murphy.
While in his report Mr. Murphy agreed with the conclusion of Mr. Molloy that pressure resulting from the contact between the two buildings contributed to the cracking in No. 5, he expressed the view that vibration set up during construction and transmitted through the points of contact was a major factor in causing the cracking. In this regard, it appears to me that he adopted a stance not at variance with that ultimately adopted by Mr. Moylan. In relation to Mr. Molloy’s requirement that the areas of contact at foundation level must be cut back, as communicated in the additional particulars delivered on 17th October, 2003, Mr. Murphy made the following observations in his report:
“It should be noted that this requirement, while desirable, will be very difficult to achieve in practice at this stage. The carrying out of this work will involve major disruption to either No. 5 or No. 70, or both from an access point of view, and from the point of view of generating noise, dust and vibration. Depending on the methods employed to cut back the concrete vibration could be transmitted to the fabric of No. 5 … causing further cracking and damage.”
In his evidence Mr. Murphy expressed the view that there could be a total of
7 mm to 8 mm settlement or movement in No. 70, of which 3mm would represent settlement of the piles. In cross-examination Mr. Murphy acknowledged that some of the elements, apart from the settlement of piles, involved in his overall projection of movement are virtually impossible to calculate and he accepted the characterisation by counsel for the first defendant of his projection as a “guesstimate” doing the best he could. He emphasised that the factors he had outlined take considerable time to develop and to become fully effective.
As to the effect on No. 5 of such settlement or movement, Mr. Murphy outlined what he believed has already happened and what is likely to happen. He expressed the view that some initial settlement has occurred on the edge of the raft, which he considers explains some of the cracking, in particular, the parting between cross walls and the rear wall of No. 5. Secondly, it is his view that with the setting of the concrete there has been a small shrinkage in the width of the ground beam of No. 70, which has allowed some release on the wedging of the ground beam to the edge of the raft. This mechanism he suggested explains the discrepancy between the assessment of crack widths by Mr. Molloy and later by Mr. Moylan, the explanation being that some of the cracks have closed up. As to possible future events, he posited four scenarios: over time because of abrasion of one surface against the other, there could be a release and the raft could spring back; the ledge of the raft could break away; the gross overloading could induce bending stresses in the raft itself generating a longitudinal crack in the raft; and a hard bearing could develop within the span of the raft resulting in the raft tilting. Mr. Murphy acknowledged that the first two scenarios were the least likely to occur, and that the third, the cracking of the raft, was the most likely. He expressed the view that one or other of the four scenarios would happen in the future but acknowledged that it was impossible to say that any one of them was probable.
Mr. Moylan adopted a consistent approach both in his report of 4th June, 2004 and in his evidence as to the likelihood of structural movement as a result of settlement on No. 70. His view was that any significant settlement which was going to occur at No. 70 would have occurred shortly after the building was completed, at which stage the full dead weight would have been carried on the piles. The dead weight would have represented 85% of the total design load. Mr. Moylan’s experience was that the settlement of piles in the type of soil present at Leeson Close usually occurs within a short period after the piles are loaded. His opinion was that there was no evidence to suggest that the settlement up to June 2004 had been in any way significant and he concluded that the addition of the remaining 15% of the design load which would occur when the premises were occupied would not cause any settlement to occur.
In the course of Mr. Murphy’s evidence there was some controversy in relation to a statement contained in Mr. Moylan’s report in which Mr. Moylan disagreed with an opinion expressed in a report dated February 2004 from McElroy Associates, which has not been put before the court. The opinion of McElroy, as recorded by Mr. Moylan, was that the maximum settlement of the piles given the ground conditions and the loads involved would be 3mm to 4mm, which it was suggested Larsen Foundations Limited had indicated, but that this would not have any adverse effect on the raft foundation at No. 5. My understanding of Mr. Moylan’s comment is that, in his view, a settlement of that order would have potential to cause significant structural cracking in No. 5, but, in his view, for the reasons I have outlined, he believed no significant settlement of the piles had occurred or was likely to occur at No. 70. Mr. Moylan’s evidence was consistent with his report in that regard.
Mr. Moylan’s evidence was in conflict with that of Mr. Murphy in that he expressed the opinion that neither the individual cracks nor the pattern of cracking suggested to him that the cause was foundation movement. Moreover, he did not discern any progression of cracking. This conflicts with evidence to the contrary of both Mr. Roberts and Mr. Molloy. He did not accept the explanation proffered by Mr. Murphy as to the discrepancy between his measurements and Mr. Molloy’s measurements; in his view, a reverse movement would not have closed all of the cracks and would probably have generated new cracks. Moreover he did not accept that there would have been a sufficient shrinkage of the ground beam to release the interlocking of the two foundations. Mr. Moylan did not foresee any of the possible scenarios predicted by Mr. Murphy. On the contrary, he quantified the risk of there being any further adverse impact on No. 5 from No. 70 at 5%.
Mr. Moylan did, however, suggest a means whereby that risk might be eliminated. He produced a method statement which envisaged two discrete operations being undertaken. The first was to drive piles into the raft foundation of No. 5, obviously from within No. 5. The objective of the piling would be to support the raft, if the need arose. However, he did not envisage that it would arise, given that the raft has been in situ for almost 30 years. The other element was the separation of the two buildings at foundation level by cutting a 25 mm wide joint between the edge of the raft and the edge of the ground beam of No. 70. This work would be done through No. 5 and the approach would be what Mr. Moylan described as “vibrationless”. Access to the cavity between the two buildings would be achieved by saw cutting out sections of the rear wall at No. 5 and the joint would be achieved by cutting off an area 25 mm in width from the edge of the raft with a concrete saw. Mr. Moylan emphasised that, in his view, neither piling nor separating the two buildings at foundation level is necessary to prevent future damage to No. 5. The works he outlined were works which could be undertaken if the owner of No. 5 wanted to be 100% sure that No. 5 was, and would remain, structurally sound, although, in incurring the cost of the works, the owner might not be getting value for money. Separation alone would not be a viable option at this stage, but in Mr. Moylan’s view piling alone would. No. 5 would be uninhabitable for four months at the outside, if these works were undertaken.
Mr. Moylan’s suggestions in relation to piling and separation were put to Mr. Murphy. He did not agree that piling the foundations of No. 5 alone would resolve the problems which, in his opinion, No. 5 presents, nor did he agree that both piling and separation were the solution. His view was that the very procedures envisaged by Mr. Moylan could generate stresses upon and vibration in No. 5 which could become manifest later. In essence, like Mr. Molloy, he was of the view that the only remedy was the demolition and reconstruction of No. 5.
Mr. Moylan testified that he had inspected No. 5 on two occasions since it was acquired by the new owners, the most recent inspection having taken place on 13th October last. I do not think it appropriate to give any weight to the works being carried out by the new owners, as described by Mr. Moylan, not having heard the new owners and, in particular, their reasons for adopting the approach which Mr. Moylan testified to.
The estimate of the cost of repair and reinstatement work prepared by O’Malley Associates, which was agreed by the plaintiff, costs Mr. Moylan’s proposals as follows:
€
A. Minor repairs and redecoration 38,100.00
B. Separation works, minor repairs and
redecoration 89,148.00
C. Piling, minor repairs and redecoration 123,143.00
D. Piling, separation works, minor repairs
and redecoration. 157,334.00
The first defendant acknowledged that minor repairs and decoration which would cost €38,100 are necessary but contended that the piling and separation works are not. Of course, it must be emphasised that all of the evidence as to how, and at what cost, damage caused or likely to be caused to No. 5 should be remedied is wholly hypothetical in the circumstances now prevailing, that the plaintiff is no longer the owner of No. 5. Nonetheless, it has significance to the extent that it is indicative of the value of No. 5 in its damaged condition.
There is a stark conflict between the two experts, two very experienced consulting engineers, on the implications of the failure to maintain separation at foundation level in the construction of No. 70. At one extreme Mr. Murphy’s opinion, which is shared by Mr. Molloy, is that demolition and rebuilding is the only solution, whereas, at the other extreme, Mr. Moylan’s opinion, expressed with a degree of conviction just short of certitude, is that no remedial action at all is necessary. In order to adjudicate on the plaintiff’s claim, I must endeavour to resolve this conflict to the extent of –
(a) determining whether, as a matter of probability, the only manner in which the house on No. 5 can be rendered structurally sound is by demolition and reconstruction, and
(b) assessing how prospective purchasers would be influenced by the nature and extent of the damage to No. 5 and the likely cost of remedying that damage in fixing the price they would be prepared to pay for it in its damaged condition in the marketplace.
I have come to the conclusion on the evidence that No. 5 could be rendered structurally sound without recourse to the extreme remedy of demolition and reconstruction. On the other hand, I think it improbable that the impact on No. 5 of the works carried out on No. 70 is of an order of significance such as requires only repair and decoration to restore No. 5 to its undamaged state. In reaching this latter conclusion, I have had regard to a number of factors. First, the normal good practice of keeping the foundations of buildings separate exists for good reason. Secondly, there was good reason why the plans for the construction of No. 70 observed the normal good practice in this regard. Thirdly, it is clear from the evidence that facts which may be material, particularly in relation to the raft foundation of No. 5, may be unknown. There was implicit in the cross-examination of the plaintiff’s expert witnesses criticism of the failure of the plaintiff to have the raft investigated, to procure a soil survey, to monitor the cracks by the use of “telltales” and to carryout similar investigative works. However, this criticism has to be viewed in the context that it is the defendants who are the wrong doers and against the reluctance of the first defendant to agree to the opening up of the foundations for inspection and its reluctance until the action was at hearing to acknowledge that there was a failure to observe normal good building practice in the construction of No. 70.
In general, I think that a person objectively assessing the value of No. 5 as it stands, on the basis of the relevant knowledge deducible from the evidence, would, as a matter of probability, factor into the assessment that the works of piling and separating the foundations outlined by Mr. Moylan would be required to render the building on No. 5 sound. I do not think that an objective assessor would, on the basis of such knowledge, regard No. 5 merely as a building site subject to clearance. I think he would conclude that the problem of access to the foundations to effect the separation and the risk of further damage in the course of the works would be surmountable and that, on completion of the works, No. 5 would have stable foundations separate from the foundations of No. 70.
The allegation that the plaintiff failed to mitigate his loss in maintaining No. 5 after he moved out is irrelevant in the light of the finding as to the nature and extent of the remedial action which an objective assessor of the value of No. 5 would consider necessary.
Quantification of diminution of value of No. 5
There are two elements in this measurement: the current value of No. 5 if it had not suffered the damage which is attributable to the defendants’ breach; and its value as so damaged. Both elements must be assessed objectively which, in accordance with the normal valuation principles, means ascertaining what is usually referred to as “market value” or “open market value”, which envisages a sale transaction at arms’ length involving a willing seller and a willing buyer each of whom acts reasonably, which, in the case of the seller involves properly marketing the property.
In relation to the current market value, Denis K. Bergin of Bergins, Valuers, Estate Agents and Auctioneers, who carry on business in the Dublin 2 and Dublin 4 areas, who was called by the plaintiff, valued No. 5 at €1.75m on the assumption that it was in a very good state of decorative repair and maintenance and free from structural or other latent defect. Mr. Bergin testified that he bore in mind eleven comparisons which he thought were relevant in arriving at that value. Those comparisons were not identified. There was evidence that the plaintiff has provisionally offered a sum of €1.7m for a mews house in Dublin 4 and was advised by Mr. Bergin in connection with the proposed transaction. The prospective vendor is a client of the plaintiff’s solicitor’s practice. In my view, this negotiation cannot be regarded as an appropriate comparator for the purposes of an objective valuation of No. 5.
Simon Ensor of Sherry Fitzgerald, Property Advisors, who was called by the second defendant, put a current value of €1.15m on No. 5, assuming no serious structural defects. Mr. Ensor put forward a number of comparators in his evidence. However, his valuation was on the basis of the actual condition of No. 5 when he inspected it in July, 2004, at a time when it had been unoccupied for just over a year. He also discounted the value of the space at second floor level because, when constructed in 1976, the rooms at this level did not comply with the requirements of the building byelaws then in force in relation to habitable rooms. In doing so, in my view, he failed to take sufficient account of the provisions of s. 22(7) of the Building Control Act, 1990, which effectively granted an amnesty in the case of works carried out prior to 13th December, 1989 where the requirements of the byelaws had not been complied with.
On the basis of the evidence before the court, in my view, the open market value of No. 5 in its undamaged state would be somewhere in the range of €1.3m to €1.4m.
What was proffered by the plaintiff as evidence of the value of No. 5 in its damaged state was the price achieved by the plaintiff on the sale earlier this year, €830,000. The circumstances of that sale are pertinent to the consideration of the status of the price as representing market value or not. The plaintiff intimated his decision to sell to Mr. Bergin on 10th May, 2004. By then Mr. Bergin had already valued No. 5 on the basis that it would be necessary to demolish and reconstruct the house at €900,000. Broadly, he arrived at this figure by deducting from his figure for open market value undamaged (€1.75m) the cost of rebuilding as advised by David J. Turner & Associates (€700,000) and the cost of demolition, which he estimated at €100,000.
When giving Mr. Bergin instructions to sell by letter dated 7th May 2004, which appears to have been despatched by fax on 10th May, the plaintiff gave Mr. Bergin two pieces of information. First, he had received an approach from an estate agent some weeks previously offering an introduction to a potential purchaser, but that came to nothing because the potential purchaser wanted the transaction to be subject to planning permission, to which the plaintiff was not agreeable. The plaintiff also furnished Mr. Bergin with a copy of a letter he had received that day from one of the ultimate purchasers, James Staunton, making an open offer (i.e. an offer which was not subject to contract) of €810,000 for No. 5 and indicating that contracts should be sent to his solicitor, who was identified. Mr. Staunton was a next door neighbour of the plaintiff in Pembroke Place. He was well known to the plaintiff, even to the extent that years previously the plaintiff had promised Mr. Staunton to let him know if he was ever selling No. 5. The plaintiff told Mr. Bergin that he had been advised, obviously in the context of these proceedings, that it would be imprudent to sell to Mr. Staunton without testing the market. The plaintiff asked Mr. Bergin to take such steps as were appropriate to test the market. On the same day, 10th May, the plaintiff wrote separately to Mr. Bergin effectively confirming his instructions to Mr. Bergin to sell. In this letter the plaintiff outlined the difficulty created by the construction of No. 70 and told Mr. Bergin that he had been advised that No. 5 was incapable of proper repair unless full separation between the two buildings was effected. The plaintiff wrote a further letter to Mr. Bergin on 10th May, again confirming the instructions to sell and indicating that Mr. Bergin should endeavour to obtain €900,000.
Mr. Bergin’s approach, on the basis of his instructions, was that he was effectively selling a site. He contacted eight individuals who were known to him whom he considered might be interested in the property. He was able to identify four of those individuals, one of whom was an architect and all of whom were involved in property development. None of them expressed an interest in No. 5. On 19th May, Mr. Staunton increased his offer to €830,000 and on the same day the plaintiff accepted the offer and instructed the solicitors acting for him in the sale to send contracts to Mr. Staunton’s solicitors. He also instructed that the fees of Mr. Bergin at 2% plus VAT should be discharged on closing. Mr. Bergin’s fees and the VAT effectively absorbed the additional €20,000 paid by Mr. Staunton and his co-purchaser.
In my view, the price paid by Mr. Staunton and his co-purchaser cannot be accepted as representing the open market value of No. 5 damaged. It has not been established that the assumption underlying the transaction, which was that No. 5 could only be sold as a site requiring clearance, was correct. The property could not be regarded as having been properly marketed. It was given to one agent only. The campaign, if it can be called that, was conducted over nine days and only contacts known to the agent were apprised of the fact that the property was on the market. The fact that the property was for sale was not advertised in any of the many ways in which that can be done: by putting a “for sale” sign, a board, on the property; by advertising in the daily and Sunday newspapers and, in particular, in the specialised property sections; by advertising on the internet. In the context of these proceedings the plaintiff did not act reasonably in the manner in which he disposed of No. 5. The price achieved, €830,000, cannot be regarded as the proper reflection of the market value of No. 5 in its damaged condition.
Mr. Ensor was not asked to express a view on the market value of No. 5 in its damaged condition. However, he did explain the approach he would adopt in marketing No. 5, if he was asked to do so on the basis that there were serious structural defects in the premises. His evidence was that he would market it as a property requiring extensive refurbishment, or possible redevelopment. He would expose the property to the maximum market and let the market decide who was prepared to pay the most for the property. That, in my view, would have been a reasonable approach.
The only evidence before the court on which an objective assessment can be made of what No. 5 is worth in its damaged condition is the evidence as to the nature and extent of the damage occasioned by the construction of No. 70 which has occurred, or is likely, to occur and the cost of remedying that damage. If No. 5 had been properly marketed, on the basis of the knowledge which is available to the court, it would probably have fetched somewhere in the range of €150,000 to €200,000 less than what I believe to be the market value in its undamaged condition. The mid point of that range would fairly represent the diminution in value of the property, in my view.
It follows that the measure of the value of No. 5 in its damaged condition considerably exceeds the price achieved by the plaintiff on the sale at the price of €830,000. The plaintiff must bear this loss. To use the terminology used by Henchy J. in Munnelly v. Calcon Ltd., to impose this loss on the defendants would mulct the defendants unreasonably. For whatever reason, the plaintiff chose to sell the property when he did. I did not find his evidence that the reason he decided to sell at the beginning of May this year was because the first defendant in its defence some seven months earlier had pleaded that he had failed to mitigate his loss convincing. More importantly, the plaintiff chose the manner of sale, which I have already found was unreasonable given that these proceedings were pending and that he clearly intended using the purchase price as mirroring the market value of No. 5 as it was at the time of the sale.
On the same basis, in my view, it would not be reasonable to impose on the defendants the costs of the sale of No. 5 (estate agent’s and solicitor’s fees and VAT) or the costs of the acquisition of an alternative property (stamp duty and solicitor’s fees and VAT), or additional expenditure on works on, and fitting out, the alternative premises. As is clear from the finding I have made as to the nature and extent of the damage occasioned by the works carried out on No. 70 to No. 5, I do not consider that it was a consequence of the wrongdoing of the defendants that the plaintiff would have to relocate permanently. To put it another way, the choice which the plaintiff made to dispose of No. 5 and acquire an alternative property would have been reasonable if, as a matter of probability, in order to be structurally sound and habitable the building on No. 5 would have to be demolished and reconstructed. On the evidence I have found that that is not the case. Therefore, as between the plaintiff and the defendants, the plaintiff must bear the consequences of that choice.
Credibility of the plaintiff
Both defendants challenged the credibility of the plaintiff in very trenchant terms. In its written submission, the first defendant submitted that the plaintiff had not just misled the court from the commencement of the proceedings but had actively deceived the court (or attempted to do so) on a number of occasions. The second defendant in its written submission submitted that misrepresentation, non-disclosure and untruthful and unreliable evidence by the plaintiff undermined the credibility of his evidence in relation to those parts of his claim which depended upon credibility. The court was referred to the observations of Hardiman J. when delivering his judgment in the Supreme Court in Shelly Morris v. Bus Atha Clíath [2003] 1 IR 232 and, in particular, following observations at p. 258.
“But it appears to me that a plaintiff who is found to have engaged in deliberate falsehood must face the fact that a number of corollaries arise from such finding:-
(a) the plaintiff’s credibility in general, and not simply on a particular issue, is undermined to a greater or lesser degree;
(b) in a case, or an aspect of a case, heavily dependent on the plaintiff’s own account, the combined effects of the falsehoods and the consequent diminution in credibility means that the plaintiff may have failed to discharge the onus on him or her either generally or in relation to a particular aspect of the case;
(c) if this occurs, it is not appropriate for a court to engage in speculation or benevolent guess work in an attempt to rescue the claim, or a particular aspect of it, from the unsatisfactory state in which the plaintiff’s falsehoods have left it.”
A particular complaint was that on 23rd June, 2004 the plaintiff’s solicitors furnished replies to a notice for particulars served by the solicitors for the second defendant in which the second defendant was informed that the plaintiff had reluctantly entered into negotiations for the sale of No. 5 and that, in the event of a binding contract being entered into, there would be two alternative methods of calculating damages, which were set out. The solicitors for the second defendant were not informed that a formal binding agreement had been entered into on 4th June, 2004 with a closing date of 14th July, 2004. Having regard to the evidence, I cannot construe this episode as representing an attempt by the plaintiff to mislead or deceive. In any event, subject to one qualification which will be addressed later, no prejudice accrued to either defendant because, when the action came on for hearing on the scheduled day, 13th July, 2004, the hearing was adjourned until 19th October, 2004 to enable the parties address the issues to which the sale of No. 5 gave rise.
I have already alluded to one other aspect of the plaintiff’s evidence which was questioned – the plaintiff’s evidence of seeing material being excavated from beneath the foundations of his house at the time the site of No. 7 was being piled. It was submitted on behalf of the first defendant that that evidence was so utterly unlikely that it could not be believed. I have already found that it is probable that the plaintiff did observe something which he perceived was the removal of earth from under the foundations, although, as I have indicated, I am not prepared to make a finding that the activity in question undermined the foundations of No. 5. I think it highly unlikely that the degree of interlocking between the two buildings at foundation level which Mr. Moylan described could have taken place without some such activity having occurred.
In general, I found the plaintiff to be a very poor historian. To a large extent this was avoidable because, as is to be expected from an experienced solicitor, in the past he had been careful in documenting issues which had arisen in relation to his property. He would have served his cause better if he had familiarised himself with the relevant documentation before giving evidence. I am also satisfied that, in the context of his dispute with the defendants and of these proceedings, the plaintiff made decisions which were manifestly unreasonable and which cannot be rationalised or justified by reliance on professional advice. On the basis of the decisions, he advanced claims which are transparently unreasonable and cannot be reflected in the award of damages in this case. Subject to those observations, I consider that the attack launched on the plaintiff’s credibility was excessive and not sustainable on the evidence.
Requirement of reasonableness on the part of the defendants
In a case in which the court is measuring damages for injury to property, in applying the fundamental rubric that the damages to be awarded are to be reasonable, the court must consider not only whether the claim advanced by the plaintiff is reasonable but also whether in seeking to minimise its liability the defendant is acting reasonably. In this connection the editors of McGregor on Damages (16th Edition, 1997) refer to the decision of the House of Lords in Lodge Holes Colliery Co. v. Wednesbury Corporation [1908] A.C. 323 and comment as follows at para. 1480:
“Lord Loreburn L.C., delivering the leading speech, pointed out that a court should be ‘very slow in countenancing any attempt by a wrongdoer to make captious objections to the methods by which those whom he has injured have sought to repair the injury’, and that ‘in judging whether they [i.e. the plaintiffs] have acted reasonably, I think a court should be very indulgent and always bear in mind who was to blame'”.
The editors of McGregor also quote the further comment of Lord Loreburn that “even those who have been wronged must act reasonably, however wide the latitude of discretion that is allowed to them within the bounds of reason …”.
The development of No. 70 was inevitably going to be difficult because of the size and location of the site and the proximity of adjoining buildings. Given that the plaintiff had objected to the first defendant’s first planning application and that the first defendant intended to build to the boundary of its own site, it is surprising that the in-house professionals and the advisors of the first defendant did not consult with the plaintiff before submitting the second planning application. Even though an accommodation was reached before the building works commenced in November, 2002, I think it is understandable that the plaintiff harboured resentment that he was not consulted. It is clear on the evidence that the plaintiff was not the only adjoining property owner to complain when the construction work commenced. Ironically, Siemens complained in relation to vibration damage during the course of the piling of the foundation.
There is undoubtedly substance in many of the complaints made by the first defendant as to the manner in which the plaintiff conducted himself from the time these proceedings were initiated. The plaintiff could have, but did not, try to resolve the problems which arose in late May and early June, 2003 without resorting to the remedy of an interim injunction. However, I do not accept that the plaintiff abused the process of the court in obtaining an interim injunction. The plaintiff could have, but did not, agree immediately to the works suggested by the solicitors for the first defendant in their letter of 27th June, 2003. Even though those works were ultimately carried out at the expense of the first defendant, the issues between the parties were not resolved. It is true that the steps which the plaintiff took to preserve No. 5 from the time he moved out in July, 2003 until the property was finally disposed of a year later were minimal. However, from mid-September, 2003 onwards, the first defendant’s officers were aware of the absence of a separation between the two properties at foundation level, if they had not been aware of this previously. By then, unfortunately, the battle lines had been drawn in this litigation. No attempt was made by the first defendant to acknowledge and propose or provide an engineering solution for the problem. This is a factor which the court is entitled to have regard to in judging the reasonableness or otherwise of the actions of the plaintiff. After all, as between the plaintiff and the first defendant, the first defendant was the wrongdoer, a fact I have already alluded to in the context of the criticism of the plaintiff for failing to carryout investigative works in relation to the raft foundation of No. 5.
Following the guidance given by Henchy J. in Munnelly v. Calcon Ltd., I also think that the relation of the plaintiff and the first defendant to their respective properties is a significant feature. The first defendant, a limited liability company, was commercially developing its property. The inter partes correspondence indicates that from the outset the concern of the first defendant was that it was incurring a financial loss by reason of being restrained from completing its development. By contrast, No. 5 was the home of the plaintiff and his family. These are factors which have to be taken into account in assessing the reasonableness or otherwise of the remainder of the heads of the plaintiff’s claim. That said, the plaintiff’s claim has to be assessed on an objective basis.
Expenditure incurred by the plaintiff up to the trial of the action
The defendants, properly in my view, do not quibble with the plaintiff’s claim for reimbursement of the small items of expenditure which he incurred in connection with No. 5, which aggregate €2,701.30. This sum will be included in the award.
In relation to the plaintiff’s claim for rent of alternative premises at the rate of €5,000 per month for fifteen months, it was submitted that the plaintiff acted unreasonably in vacating No. 5 in July, 2003, renting what was described as a grander and bigger house when mews properties similar to No. 5 were available at less than half the rent which he is paying for the house in Wellington Road, and remaining for fifteen months in the rented accommodation.
The plaintiff’s evidence was that he moved out of No. 5 because of Mr. Molloy’s advice, conveyed in his letter of 1st July, 2003, that No. 5 was then not suitable for habitation because of extensive damp and mould growths and that he and his family should vacate the property as soon as possible. The plaintiff’s evidence was that his understanding from Mr. Molloy was that there was “toxic” mould present in No. 5 and that it was very bad for old people and young people. No other evidence was adduced that at the time, or at any time subsequently, No. 5 was a health hazard. While I am not satisfied that No. 5 was a health hazard, I am satisfied that there was significant water damage and disrepair caused by the defendant’s activities, to a degree that the plaintiff and his family could not reasonably be expected to continue to reside in the premises. Moreover, I have no doubt that the condition of the premises was exacerbated by the various inspections and investigations which the dispute between the parties and this litigation have necessitated. The concerns of the plaintiff and his advisers in relation to the absence of a joint at foundation level proved to be justified, and this was known as early as mid-September, 2003. Other than to do the largely external works which were done mainly from No. 70, which it offered to do at the end of June, 2003, the first defendant never acknowledged any liability to the plaintiff until the hearing of this action commenced on 19th October last and never offered to do any work. The plaintiff advanced as his reason for remaining out of No. 5 the advice he got, following the inspection of the properties at foundation level, that until there was a separation between the two foundations No. 5 would continue to suffer and that the only way a separation could be achieved was by demolition of one or other building. While, as I have already indicated, I am not satisfied on the evidence that demolition and reconstruction is necessary to render No. 5 structurally sound, having regard to what I have found to be the level of expenditure which would have been necessary to make No. 5 free from structural defect and sound, and the stance adopted by the first defendant, I consider that the plaintiff was justified in remaining out of No. 5 until the hearing of these proceedings commenced, subject to one qualification. But for the almost secretive manner in which the plaintiff disposed of No. 5, the hearing would have commenced on the date on which it was scheduled to commence, 13th July this year, three months earlier than it did. The defendants might have contended that they were prejudiced by the adjournment, if the plaintiff was allowed the rent of alternative premises for the period of the adjournment in the award. That contention was not specifically made at the hearing and the plaintiff did not get an opportunity to answer it. In the circumstance, the award will include fifteen months rent of alternative premises.
Mr. Bergin assessed the rent of a property comparable to No. 5 at €4,000 per month. Miss Eva Molloy, of Gunnes Estate Agents, who was called by the first defendant, gave evidence that the rental value of No. 5 in the year 2003 let furnished was in the region of €2,200 per month. She gave evidence of properties which were available in the Dublin 4 area at that level of rent in the middle of 2003. Mr. Ensor put the rental value of No. 5 as of July, 2003, on the assumption that the property was in good condition, somewhere in the region of €2,000 to €2,200 per month on the basis of his view of the accommodation at second floor level. On the assumption that the second floor level was habitable, he put the rent at between €2,200 and €2,500. On the evidence, I believe that No. 5 would have fetched €3,250 per month if let on the open market in good condition in July, 2003. That being the case, it would not be reasonable to measure the damages on the basis of the rent actually paid by the plaintiff, €5,000 per month. To do so, to use the words of Henchy J. in Munnelly v. Calcon Ltd., would enrich the plaintiff excessively and unnecessarily and would mulct the defendants unreasonably. Therefore, the award will include the sum of €48,750 in respect of rent for alternative premises together with the sum of €612.50 in respect of the stamp duty paid on the lease and removal expenses in the sum of €1,846.10.
General damages
In quantifying general damages for interference with the use and enjoyment of No. 5, the significant period was from the end of May to 19th July, 2003, during which period the interference was serious and distressful for the plaintiff, whose concern was not only for himself but also for his family. The plaintiff also had the inconvenience and stress of moving out of No. 5 into rented accommodation. Further, I am satisfied that from the commencement of the construction works on No. 70 in November, 2002 until the end of May, 2003 there were occasions when the activities on No. 70 impacted on No. 5 and its occupiers in a manner which exceeded what would be regarded as reasonable given the proximity of the two properties, in respect of which the plaintiff is entitled to be compensated. There was consistency between the approach adopted by the plaintiff in the affidavit to ground the application for an interim injunction in relation to these incidents and the evidence of the plaintiff’s wife. I think the plaintiff and his wife adopted a reasonable attitude in circumstances which must have been annoying and irritating, and while, as was submitted by both defendants, the plaintiff in his oral testimony exaggerated the position, I would be prepared to put this down to an altered perception in hindsight.
On the evidence, I think the proper measure of general damages is €10,000. In reaching this conclusion, I have had regard to the helpful summary of the law on general damages in analogous situations contained in the judgment of O’Sullivan J. in Leahy v. Rawson and Ors. (The High Court, 14th January 2003, unreported).
The order
There will be an order that the defendants pay to the plaintiff the sum of €238,909.90 made up as follows:
€
Diminution in the value of No. 5: 175,000.00
Works to No. 5: 2,701.30
Rent of alternative property: 48,750.00
Stamp duty on lease: 612.50
Removal expenses: 1,846.10
General damages: 10,000.00
Total: €238,909.90
The order will be against both defendants jointly. As between the plaintiff and the defendants no part of the award is solely attributable to the liability of the first defendant in contract.
Approved: Laffoy J.
J.McP. -v- M.McP. & anor
Sex Abuse
[2017] IEHC 732 (06 December 2017)
JUDGMENT of Mr. Justice Barr delivered on the 6th day of December, 2017
Introduction
1. This is a somewhat unusual application, in which the plaintiff is seeking an order directing that the first named defendant should make discovery of his medical records from two psychiatric institutions. There is also an application that both of the defendants should make discovery of documents in their possession, power or procurement concerning the transfers of certain properties from the first named defendant to the second named defendant, which it is alleged by the plaintiff, were undertaken with a view to defeating her claim for damages against the first named defendant.
2. As this is an unusual application which seeks to oblige the defendant to make discovery of his confidential psychiatric records, it is necessary to set out the history of the matter in some detail.
The Plaintiff’s Application
3. The plaintiff is a young woman of 22 years of age. The defendants are her paternal grandparents. In these proceedings, it is alleged by the plaintiff that when she was aged between 9 years and 12 years, she was subjected to a large number of sexual assaults carried out by the first named defendant. She alleges that these assaults occurred at various locations, both within Ireland and in Portugal, when she was in the care of the first named defendant. It is alleged by the plaintiff that the abuse involved the first named defendant intimately touching and rubbing the plaintiff in the area of her vagina and elsewhere. It is alleged that the abuse by the first named defendant occurred on a weekly basis during the years in question. The abuse is alleged to have occurred between June 2005 and January 2008.
4. It appears that at some time subsequent to 2008, the plaintiff made a formal complaint to the gardaí. Following that investigation, criminal charges were brought against the first named defendant. From the affidavit sworn on 13th July, 2017, by Mr. James Glynn, the plaintiff’s solicitor, he has averred that he attended at the Circuit Criminal Court on 15th April, 2010, when the first named defendant entered a guilty plea to eighteen counts in respect of criminal offences committed by him against the plaintiff. Upon his conviction, the first named defendant was sentenced to a term of imprisonment.
5. The present proceedings were commenced by way of plenary summons issued on 9th March, 2016. A statement of claim was delivered on 14th March, 2016. In it, the plaintiff claims damages, including aggravated damages, against the first named defendant for assault, trespass to the person and for breach of her constitutional right to bodily integrity and breach of fiduciary duty.
6. The plaintiff also claims damages against the second named defendant, her paternal grandmother, for negligence on the part of the second named defendant in failing to exercise reasonable care for the safety of the plaintiff, while she was being looked after by the defendants.
7. The plaintiff further claims that on dates unknown, but sometime prior to 10th May and 19th May, 2010, the defendants entered a conspiracy to defeat the plaintiff’s claim for damages against the first named defendant. That with intent to defraud the plaintiff and/or to render worthless any judgment obtained by the plaintiff against the first named defendant, the first named defendant transferred and/or conveyed to the second named defendant his interest in three specified properties. On this account, the plaintiff claims against both defendants, an order pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009, declaring void the said transfers and conveyance by the first named defendant to the second named defendant in 2010, of the three properties identified in the statement of claim.
8. A defence was filed on behalf of both defendants on 1st December, 2016. It was a somewhat unusual defence, in that, while it contained the usual denials, certain partial admissions were made and the first named defendant put in issue certain matters in relation to his mental state at the time that the admitted acts were carried out. It is on the basis of these specific pleas, that the plaintiff seeks discovery of his psychiatric records. Accordingly, it is necessary to set out the relevant portion of the defence, which was in the following terms:-
“3. The first defendant admits touching and rubbing the plaintiff in the area of her vagina for very brief momentary periods of time and on a limited number of occasions, and the first defendant will say that such touching occurred on occasions of playfulness between him and the plaintiff, and he considered it to be in the nature of platonic, friendly, caressing and innocent tickling and innocent horseplay.
4. The first defendant expressly denies that he had any inappropriate level of cognitive distortions about children and sex, but admits that he had little insight at the time into his offending behaviour and accepts fully that it may properly be perceived to have been abusive and injurious to the plaintiff.”
9. The defence went on to deny that any of the incidents complained of occurred during periods of time when the plaintiff was in the care and custody of the second defendant. She denied that she had any knowledge, or means of knowledge, of the abuse alleged to have been committed by the first named defendant against the plaintiff. She denied that she had failed to exercise such care for the plaintiff’s safety, as would be exercised by a careful parent, or that she failed to see or to heed and/or to prevent the actions of the first defendant, thereby causing or contributing to the plaintiff’s injuries, loss or damage.
10. The defence also contained a denial that the first and second named defendants had entered into any conspiracy in relation to the transfer of properties between them, as alleged or at all. The defence went on to state that save as had been specifically admitted in the defence, the plaintiff was required to prove each and every other matter set out in her statement of claim.
11. On 9th January, 2017, the plaintiff delivered a reply to the defence filed by the defendants, in which it was indicated that the plaintiff would request the trial court to treat the assertions made in the defence as additional grounds for awarding to the plaintiff aggravated and/or exemplary damages, in addition to the nature and conduct of the defence of the defendants herein. The reply also denied all the assertions and allegations contained in the defendants’ defence.
12. Arising out of the defence filed on behalf of the defendants, the plaintiff’s solicitor wrote on 9th January, 2017 and 9th March, 2017, seeking voluntary discovery of the first named defendant’s psychiatric records with St. John of God’s Hospital and the Granada Institute and also seeking as against both defendants, discovery of the conveyancing files in relation to the three specified properties. The plaintiff’s solicitor did not receive any reply to these letters. Accordingly, on 24th May, 2017, the plaintiff’s solicitor issued a motion seeking the following orders:-
(i) An order directing the first named defendant to make discovery on oath of the following categories of documents:-
(a) the first named defendant’s medical records from 1st January, 2008 to date to include files and records from St. John of God’s Hospital; and
(b) the files and records of the Granada Institute pertaining to the defendant’s attendance and/or counselling and/or treatment there and/or under its auspices.
(ii) An order directing both defendants to make discovery on oath of the following categories of documents:-
(a) the conveyancing files in relation to any transfers or transactions concerning the lands comprised in [three specified properties] between 1st January, 2008 to date….
13. The plaintiff’s solicitor, Mr. James Glynn, swore two affidavits grounding this application. In essence, he stated that in light of the defence filed on behalf of the defendants, in which the first named defendant had put in issue his mental state and which expressly denied any level of cognitive distortions about children and sex and asserted that he had little insight at the time into his offending behaviour, that this had been done in an effort to minimise his liability for the assaults, or his liability for the injuries sustained by the plaintiff as a result thereof.
14. In his second affidavit, Mr. Glynn stated that during the plea in mitigation in the course of the sentencing hearing held on 15th April, 2010, a report compiled by a Mr. Kieran Power, was furnished to the presiding judge. Mr. Glynn, who was present in court on that occasion, averred that Mr. Power gave evidence that the first named defendant had attended at St. John of God’s Hospital and at the Granada Institute at a time after the complaint had been first made by the plaintiff to the gardaí. Mr. Glynn stated that during the course of his evidence, Mr. Power gave evidence as to the first named defendant’s state of knowledge and insight into what had happened.
15. In argument at the Bar, Mr. Keys, B.L., submitted that, while it was certainly unusual for a plaintiff to seek discovery of a defendant’s medical or psychiatric records, in this case there were special circumstances due to the specific plea that had been raised on behalf of the first named defendant in his defence. He submitted that as the first named defendant had specifically chosen to put in issue his mental state and level of insight at the time that the admitted assaults were carried out, this opened the door to an application by the plaintiff to have sight of his psychiatric records from the relevant period, to ascertain whether the assertions made by the first named defendant in his defence, as to his mental capacity and insight at the time, were true, or were merely a fraudulent plea, designed to minimise his culpability in the matter.
16. In the course of his submission, counsel, referred to the ex tempore decision of O’Flaherty J. delivering the judgment of the Supreme Court in O’R. v. L. [1998] IESC 41. That was an appeal in relation to a discovery order that had been made by the Master of the High Court, which had been affirmed on appeal by Kinlan J. in the High Court. The action was a nullity suit, in which it had been alleged that prior to and at the time of the marriage, the respondent, by reason of her state of mind, mental condition, personality and/or emotional and/or psychological development, did not have the capacity to enter into or sustain a normal and functional life long marital relationship with the petitioner. Discovery had been ordered in respect of any treatment that the respondent might have received for seven years before the marriage. No medical documents which came into existence after the marriage were to be the subject of the discovery order. In the course of his judgment, O’Flaherty J. stated as follows in relation to discovery generally:-
“The law is not in doubt. It is old law as laid down in Compagnie Financiere du Pacifique v. Peruvian Guano Co.11 Q.B.D. 55 which has been consistently followed by our courts. All documents relevant to matters in issue have to be disclosed. To quote from the judgment of Brett L.J. which is reproduced in the judgment delivered by Kenny J. in Sterling – Winthrop Group Limited .v. Farbenfabriken Bayer Aktiengesellschaft [1967] I.R. 97: –
‘It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may , not which must , either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…”
17. Applying those dicta, the Supreme Court expanded the ambit of the discovery ordered against the respondent and directed that an order for discovery in the ordinary way, which would require all relevant documents to be discovered, would be made. Mr. Keys, B.L., submitted that, while the issue as to the first named defendant’s perception of the appropriateness or otherwise, of the actions which he admitted carrying out, may not be relevant to his liability at civil law, nevertheless, as he had chosen to put his mental state and level of insight at the time of the assaults in issue in his defence, it was appropriate and indeed necessary, for the plaintiff to have sight of his psychiatric records. He further submitted that having regard to the plea in the reply seeking exemplary damages, on the basis that the first named defendant was fraudulently trying to minimise his culpability in the matter, presumably with a view to lessening his liability for damages, this was a sufficient basis on which to justify the making of the order sought.
18. In relation to the second category of discovery, being discovery of the files concerning the transfers and conveyance of the three specified properties, it was submitted that having regard to the time at which such transfers had taken place and having regard to the existence of criminal proceedings in the months prior to that time and as to the likelihood of civil proceedings following therefrom, there was a basis on which the plaintiff could seek the relief sought under the 2009 Act. In order to properly pursue that claim, it was necessary for the plaintiff to have discovery of the files concerning these transfers and conveyances.
The Defendants’ Response
19. Mr. Boyle-Harper, B.L., on behalf of the defendants, submitted that the court should refuse the order sought at para. 1 of the notice of motion. He stated that under that heading, the plaintiff was seeking production of the defendant’s confidential psychiatric records. He denied that the first named defendant had done anything in the course of the proceedings, which would open up his private medical records to scrutiny by third parties, including the plaintiff. He submitted that those records were not relevant to either the issues of liability, or quantum in these proceedings. Liability would rest on whether the acts complained of by the plaintiff, if proven, or as admitted, constituted an assault or battery. The view of the first named defendant as to the appropriateness of those acts was not relevant, if they were held by the court to constitute an assault or battery on the plaintiff.
20. Counsel further submitted that the issue of quantum in these proceedings would be determined by the level of injury and losses established by the plaintiff in evidence to have arisen as a result of the assaults. The issue of quantum did not depend on the mental state of the first named defendant at the time of the assaults. In these circumstances, it was submitted that the first named defendant’s psychiatric records from either institution, were not relevant to the issues which would arise at the trial of the action.
21. As a further submission, but without in any way diminishing his primary objection to the ordering of discovery of the medical records, counsel submitted that the order for discovery should be limited to the first named defendant’s psychiatric records only from St. John of God’s Hospital and from the Granada Institute and should not contain any records relating to any physical injuries or complaints he may have had. He further submitted that if the court were minded to direct the discovery sought, it should be limited to the period after the assault and up to the date of the criminal trial i.e. from 1st January, 2008 to 15th April, 2010.
22. In relation to discovery of the conveyancing files, counsel stated that if the court thought that these were necessary and relevant having regard to the issues raised on the pleadings, then if the court were to direct the discovery as sought, there may be issues of privilege in relation to certain documents appearing on those files, but that could be raised in the ordinary way in the affidavit of discovery.
Conclusions
23. It is very common for the court to make orders for discovery against plaintiffs directing them to make discovery of their medical and psychiatric records. The main reason why such orders are permissible, is due to the fact that in seeking damages for personal injuries, the plaintiff has specifically put in issue the level of injuries, both physical and psychiatric suffered by him or her. In order to enable the defendant to properly evaluate what injuries may have arisen from the accident, it is often necessary for the defendant to have sight of the plaintiff’s pre-accident medical and psychiatric records. In certain circumstances, the court will also direct discovery of the plaintiff’s post-accident medial records. However, the reason why these two categories of medical records may be made the subject of an order for discovery is due to the fact that the plaintiff has specifically put in issue the level of personal injuries suffered by him or her. When they first consult their solicitor in advance of the issue of proceedings, they are presumably advised that in instituting such proceedings, they are opening themselves to the possibility that the court may order that they make discovery of either their pre-accident or post-accident medical records. Accordingly, the plaintiff embarks on the litigation, knowing that such an outcome is, at least, a possibility.
24. This is the first occasion on which this Court has heard an application on behalf of a plaintiff for discovery of a defendant’s medical records. Unlike a plaintiff in civil proceedings, the defendant does not voluntarily come into the proceedings, but is brought into the proceedings at the suit of the plaintiff. Merely because they are sued by a plaintiff in respect of an alleged tort, does not mean that the mere institution of proceedings by the plaintiff, thereby opens up the defendant to the possibility of having to reveal his confidential medical records.
25. Medical records in general, and in particular psychiatric records, are of a highly confidential nature. People who seek the help of a psychiatrist, a psychologist, or a counsellor, should, in the ordinary course of events, be able to consult with them safe in the knowledge that their communications with such persons are privileged from production to third parties, whether in the course of litigation, or otherwise. However, this is not an inflexible rule. It seems to me that while the court must approach any such application with great care and circumspection, if the court is satisfied that it is necessary in the interests of doing justice between the parties in the action before it, the court can direct that a defendant make discovery of his medical records.
26. The case sighted at the Bar of O’R. v. L., is an example of an occasion where a defendant, or in that case a respondent, was ordered to make discovery of her confidential psychiatric records, due to the fact that the issue of her mental and emotional capacity, was specifically at issue in the proceedings.
27. The decision in O’R. v. L. was considered by O’Neill J. in F.P. v. S.P. (Medical Examiner: Discovery) [2002] 4 I.R. 280. That case concerned a nullity action in which Goarke J. had made an order in the Circuit Court directing that discovery of all relevant medical/psychiatric records in respect of the respondent should be made available to the court appointed medical examiner. The respondent appealed against that order, primarily on the basis that the order provided that the medical examiner would reach his opinion on the basis of hearsay evidence furnished by means of documents furnished by third parties. In the course of his judgment, O’Neill J. looked at the decision in O’R. v. L. and came to the conclusion that that case established that in appropriate circumstances, a party may be entitled to access to the opposing party’s medical records. He stated as follows at p. 288:-
“Applying the principle thus stated to this case would seem to me to lead to a conclusion that the applicant was entitled to discovery of the material encompassed in the order of the Circuit Court Judge, but without the kind of restriction imposed, so that he could himself use this material either to advance his own case or damage the case of the of the respondent…
In my view the Circuit Court Judge may have leaned excessively on the side of decorum in restricting the discovery ordered to the medical examiner.”
28. However, O’Neill J. went on to state that as the applicant was content with the order for discovery made in the Circuit Court, he would not alter the terms of the discovery directed to be made by the respondent. He merely affirmed the Circuit Court order.
29. A similar decision was reached by White J. in P. v. Q. [2012] IEHC 593, where the court had regard to the decisions in O’R. v. L. and in F.P. v. S.P. (Medical Examiner: Discovery) and directed that discovery be made by the respondent of certain emails and mobile phone accounts, as there was an issue in the case as to whether she had been accessing inappropriate websites and engaging in inappropriate email contact with persons on the internet and had engaged in sexual conduct with such persons and had posted videos of such conduct on the internet, which it was alleged should be made available to the applicant and to the court, to enable the court to reach a decision as to whether the respondent was a fit person to have custody of the fourteen year old child of the marriage. Applying the dicta in the above mentioned cases, White J. directed that the discovery sought should be made by the respondent.
30. Turning to the facts of this case, there was considerable weight in the submission made by Mr. Boyle-Harper, B.L., to the effect that the issue of the first named defendant’s perception or appreciation of the wrongfulness, or gravity of his admitted acts towards his granddaughter, are not relevant to either the issue of liability or quantum in a civil action for damages for assault and battery, and on that account, discovery should be refused. However, if the court were to adopt that argument, the court would, in effect, be making a finding, or a ruling, in relation to an issue which will have to be determined at the trial of the action. In other words, it is not appropriate for this Court on hearing a motion for discovery of documents at the pre-trial stage, to rule on the adequacy or efficacy of any defence raised by a defendant in his pleadings.
31. Having considered the matter carefully, the court prefers the submission made by Mr. Keys, B.L., on behalf of the plaintiff. While in an ordinary civil action for damages for assault and battery, the defendant’s medical records would not generally be available, the court accepts the submission that once the first named defendant chose to specifically put in issue his mental state and level of insight at the time of the admitted acts, he thereby opened himself to an application for discovery of his psychiatric records, as these would tend to establish what was, in fact, his mental state at the time that he obtained counselling and other psychiatric treatment from St. John of God’s Hospital and from the Granada Institute. Whether or not the issue of the first named defendant’s mental state, will be relevant to the issues to be determined at the trial of the action, is a matter for the trial judge. I am satisfied that as the first named defendant has specifically put his mental state and his perception of the particular acts in issue in paras. 3 and 4 of his defence, it is appropriate to order the discovery sought at para. 1 of the notice of motion.
32. The court is further satisfied that having regard to the claim for exemplary damages as set out in the plaintiff’s reply, discovery of the first named defendant’s psychiatric records is necessary and relevant to this aspect of the plaintiff’s action.
33. In relation to the submission made by Mr. Boyle-Harper, B.L., that the order for discovery in respect of the records held by St. John of God’s Hospital and the Granada Institute, should be limited to psychiatric records, so as to exclude any records in relation to physical complaints, I do not think that such limitation is warranted, due to the fact that these two institutions are exclusively dealing with psychiatric matters. They are not general hospitals, wherein the plaintiff may have obtained treatment for other unrelated conditions. Accordingly, I do not think that it is necessary to put in the suggested limitation in this regard. In relation to the temporal limitation, there was no objection made by the plaintiff’s counsel on this aspect. Accordingly, I direct that the first named defendant is to make discovery in the terms of paras. 1(a) and (b) of the notice of motion for the period 1st January, 2008 to 15th April, 2010. The first named defendant is to swear his own affidavit of discovery. I will allow a period of eight weeks from today’s date for him to do so.
34. In relation to the discovery sought at para. 2 of the notice of motion, in relation to the files concerning the transfers or transactions concerning the lands comprised in the two specified folios and at the third address given, it seems to me that having regard to the matters raised on the pleadings, these documents are relevant and necessary to enable the plaintiff to properly prosecute her claim for relief pursuant to s. 74 of the Land and Conveyancing Law Reform Act 2009. Accordingly, I direct that both defendants are to make discovery in the terms of para. 2 of the notice of motion for the period 1st January, 2008 to 1st January, 2011. I have allowed a slightly longer period under this heading, due to the fact that there may be documentation which came into existence some months after the conclusion of the criminal proceedings, which may be relevant to this issue. Each of the defendants are to swear an affidavit of discovery under this heading within a period of eight weeks from today’s date.
L.C. v D.C.
Personal Trespass
[2018] IEHC 449 (25 July 2018)
JUDGMENT of Ms. Justice O’Hanlon delivered on the 25th day of July, 2018
The pleadings
1. The plaintiff seeks damages for personal injuries, loss, and damage suffered by reason of a number of sexual and physical assaults, batteries, and trespasses upon her person by the defendant.
2. The PIAB authorisation issued on 13th March, 2008. A defence was delivered on 21st April, 2009, and on 16th January, 2012, relief was refused by order of the High Court where the defendant had sought to consolidate the within proceedings and proceedings under High Court Record No. 2009/6398P. In February, 2017, the plaintiff was served with a personal injuries counterclaim, and it was only on 15th June, 2017, that the defendant made application to amend the defence to include a counterclaim. The Court refused this on the basis that the pleadings had been closed years before.
3. The plaintiff’s date of birth is 21st April, 1988. She traced the various stages of her education. The court notes that she qualified as a teacher, teaching Mathematics, Applied Mathematics and Biology. Part of her case is that if she had not suffered the alleged abuse, her first choice was to have become either a doctor or a physiotherapist, but that she achieved 470 points where she had hoped to do better. She described herself as a perfectionist and she presented her evidence in very clear, concise terms: giving cogent evidence in a very intelligent manner. This witness gave evidence of beginning university and taking Bio-Medical Science as her course, then transferring to a Mathematics and Applied Mathematics degree and then taking her postgraduate diploma and master’s degree.
4. This witness described the first incident of alleged abuse as occurring when she was six years of age, staying at a sleepover in the defendant’s house at that time, in the area of T, Dublin. She described the sleeping bag as having been pulled over her, but not closed and when she woke it had been pulled back across her and she said she had a nightdress on and underwear and her underwear was at her calves and that the defendant had moved, who was on top of her, he had moved down. She said her legs were open and that he and kneeling between her legs and that he had forced his hands inside her vagina and that she did not say anything but she just remembered feeling pain and crying. Her evidence was that he then moved his legs further up on her more up to the tops of her legs leaning his legs over either side of hers and she could feel him moving back and taking out his penis which he forced inside her and she could just remember sharp pain shooting up inside her and said “Ouch” and nothing else. She did not remember then and thinks that she may have passed out. The next morning, she woke up in the room and her cousin, B, was there in the sleeping bag beside her and that she didn’t remember anything else from that point until the following morning. This witness gave a detailed account of the television room she and her cousin had slept in and could describe in detail the nightdress worn by her cousin on the night in question and further that the defendant brought herself and her cousin to hospital the following morning on the basis that her cousin had been very ill during the night.
5. She confirmed that she did not talk to anyone in the aftermath of the incident and that she was terrified.
6. The second alleged incident of abuse is alleged to have taken place in April, 2002, when she was thirteen years of age. She described herself, her sister and her younger brother going down to stay in the defendant’s house in Co. K where the defendant had moved to live by that stage. She said that they arrived on a Friday and remained there until Sunday evening. She gave details of watching television and hanging around the house on the Friday evening and described on the Saturday how they went for a walk around the village, the graveyard, the church, the place where the defendant’s second wife worked and they went to look at a motor vehicle, a blue Impreza for sale in a garage. Thereafter, they went to assist with the building of a pond in the back garden of the house in which they were staying.
7. On the Sunday, the three children and the defendant went to the local shop and got sweets and on the way back, this witness said there was a little dog who followed them back to the house and herself and her sister brought him back to the shop and that they returned and had dinner at about 2 o’clock, and that she had bad pains in the stomach and decided to go up and lie down so she just said to the defendant’s wife that she was going to have a lie down upstairs. She stayed in her clothes and got into bed and lay on the bed and pulled the covers over her legs and turned over on her side and closed her eyes. She described that the top of the stairs in that house her room was the first to the right and that there was a double bed and that her sister and younger brother were in two single beds in the next room and that the room after that was used as an office and that then there was a bathroom and on the other side of the hall where the defendant and his wife had a bedroom.
8. This witness then described how the defendant came into that room, closed the door behind him, walked to the end of the bed, took off his trousers and crawled up the bed towards her. She described him as leaning his shins on her upper arms, pressing her down so that she couldn’t move and that she was just pinned there and that he had his boxers on but his trousers were off. She could see his erect penis in his underwear. He was kneeling down his weight on top of her. He pulled his underwear down and took his penis out and forced it into her mouth. She said she couldn’t breathe and he was forcing it into her throat and she could not catch her breath. She thinks she fainted or passed out and woke and he was gone from the room and his clothes were gone. She said she was really hot and clammy as if she was going to be sick and around her mouth was sticky. She didn’t know what it was, but now she knows it was semen. The plaintiff’s waited till she could hear voices. When she heard the voices of her sister and brother, S and C, she went to the bathroom and tried to cool herself down and washed her face and hands and just splashed water on herself and then went down to join S and C in the sitting room and sat with them.
9. Regarding the first incident when she was six years of age, the plaintiff told the court that it was a very terrifying experience, as one has no comprehension of what is going on. She described it as having happened and then that she did not remember it. She said she was anxious, very worried, suffering with pains in her tummy, not wanting to go to school in the morning or wanting to be close to her Mam and Dad, being quiet, shy and nervous and that prior to that she described herself as having been a quite a happy child, very, very happy, but that she became more anxious and more nervous.
10. In relation to the way in which the incident at thirteen affected her, she said it did so very differently; she never forgot it. She described it as being in her head all the time. She felt she had done something wrong, that she was damaged and that she was very, very anxious in relation to boys. She suffered from problems from palpitations and with problems of her hair falling out for a time and her having to get treatment for alopecia.
11. This witnesses said she was inhibited, not wishing to change her clothing in front of others. She was too afraid in terms of boyfriends: she didn’t go there, she didn’t trust, and felt that she should have done something to stop what had happened. She had concerns because she had shooting pains up inside her and worried that damage had been done.
12. She described having a relationship with her present husband for eleven years.
13. Being checked/examined during labour with the birth of her child was traumatic for her and she said that she was getting flashes of all that during all that time and was concerned about what was going to happen. This witness complained that the matter had been delayed and dragged out in the courts for ten years. In her third year in university she had palpitations, kidney inflections, stress and anxiety, mood swings and inability to sleep caused her to really, really struggle. She took a year out of college in October, 2008, returning to college the following September.
14. This witness described telling her parents in April, 2007 about the incident which she says occurred when she was thirteen years of age and she made a report to An Garda Síochana about that incident at B Garda Station, the day after she finished her first year examinations in college.
15. This witnesses said that in January, 2008 she remembered the first incident properly, she told her mother about it in February, 2008, and told An Garda Síochana about it in November, 2008, at T Garda Station.
16. This witness described significant symptoms when she dropped out of college of being very, very stressed and anxious: of being overwhelmed, suffering from lack of sleep, loss of weight, anxiety, and irritable bowel syndrome.
17. In addition, her wedding day caused her fear that the defendant would be outside the church and she felt that she could not attend her grandmother’s funeral for fear of being in the same room as the defendant. She worried about the daughters of the defendant. This witness confirmed that she had told her mother about the incident when she was six years of age on 25th February, 2008. She confirmed further that she remembered the incident herself, before that date, but that it was very traumatic and she had blocked it from her memory and that she was not able i.e. had not the energy to go to the gardaí before the point at which she dropped out of college for a year in relation to her making a statement to them about that event. This witness, under cross-examination, repeated her description of the weekend of 7th April, 2002. Photographs were put to her which would have been on social media and this witness explained that one photograph showed her graduation from secondary school, then her Debutants Ball at the end of Sixth Year, and other nights showed college nights out or family holidays. Her explanation for attending the defendant’s wedding to his second wife on the 19th December, 2005, was that she was trying not to cause any problems, to keep things quiet, and had she refused to go she would have had to give a reason and that she merely followed protocol or etiquette on that day. The plaintiff confirmed attending therapy, but stressed that at no time did she engage in a memory recovery process with the therapist. She confirmed that her parents never asked or questioned her about sexual abuse of any nature, prior to her disclosure to them.
The Evidence of C.C., Brother of the Plaintiff
18. This witness confirmed that he is the brother of the plaintiff and was born, himself, on 15th November, 1993, and that he was now 23 years of age and still living at home.
19. This witness was asked did he recall spending a weekend with his uncle and aunt in Co. K and he said that for the most part they just watched television, they went for a walk to the shop, the post office, they went to look at a car in a garage and that was pretty much it. He helped out in the garden in the pond and that they didn’t do a lot, but that he played video games as well upstairs in the office. He was asked about the Sunday of that weekend and he said he was upstairs in the office playing computer games and he did not recall the meal, but he did remember leaving the office some time during the afternoon. He said that he did notice throughout that the plaintiff was feeling ill and he knew that during that day she had gone upstairs, so he thought he would just knock in and see how she was and he said he opened the door and he saw his uncle, D, kneeling on top of his sister and putting his penis into his sister’s mouth.
20. He said he stayed for a few seconds and then he had to go downstairs. He did not know what was going on, and he went down to his sister, S, who was in the sitting room and joined her there. He said that he went to the kitchen to get a drink and that D came in and came up close to him and told him not to mention what he had seen and he punched him in the stomach. He was eight years old at the time and said that he did not speak to anyone about it directly after the event but when he was fourteen years of age and having trouble in school and had missed quite a lot of the start of the school year with stomach pains and could not attend school, he told his parents what he had seen and he said that they went and got advice and told him not to go ahead and say anything. He said that would have been in 2008. He thinks he probably told his mother first and then his dad. He thinks they would have had a discussion about it. He said that he did not have anything other than medical problems at that age and that he did not get psychological help. This witness explained, under cross-examination, that he was bullied in Fifth Class, and yes, that he was having trouble in school and he denied that his parents put it to him that he was suppressing something. He was asked why did not take an assault case against the defendant: because he did not feel that was necessary, that his family did not want to go any further with it. He said he was only eight years of age at the time and a couple of years after that ties between him and the defendant were cut. He did recall that the Subaru WRX was a nice car but did not recall asking the defendant on a number of occasions to take him for a spin in it nor in a Saab 9000 CD. This witness denies that he was making this story up and he said what he saw was what he saw and he would never make that up.
Evidence of Dr Paul McQuaid
21. This witness gave evidence of his extensive qualifications to the court and confirmed that he had been in practice as a private practitioner for 50 years as well as holding the position of clinical director in the Child Guidance Clinic in the Mater Hospital and on having been on the staff of the Children’s Hospital, Temple Street. He confirmed that he specialises in child psychiatry and works with adults and that he is on the specialist register of the Medical Council in child and adolescent psychiatry.
22. He confirmed that whether he met the person on their own or with their parents or other people, he said it depended on the age of the person and one had to take account of the developmental age of an individual and he said that obviously the care and protection of a child is of paramount importance so that, initially, it is customary to interview the child in the presence of one or both parents or a parent surrogate but once the child has passed the legal age of majority it is usually important and necessary to examine the individual alone. This witness confirmed that at the first assessment and report this child was attended with both parents and was seen initially with them and that she had made allegations against two different men. His first examination occurred in September, 2007, when she was about nine years of age and he felt that he would not only dispense with her parents’ presence with the agreement of the individual child. This witness identified a list seventeen specific items at the top of the third page of his first report. These included nervousness, feelings of panic going to school, sore throats, becoming clingy, palpitations, social withdrawal, self-consciousness, not wishing to damage relationships within the family, persistent tiredness and irritability, avoidance of males, and flashbacks relating to the defendant. At the doctor’s request, the court amended the second report to include the aforesaid list under the portion “damages”. This witness described how the plaintiff had cited two specific events in relation to her allegation of assault against the defendant. This witness described the mental status examination of the plaintiff as positive.
23. He later saw the plaintiff in 2007 when she was nineteen years of age. He found her to have insight into the need for therapy in her case and that she was seeing Imelda McCarthy, a therapist. He noted that the plaintiff found herself to be going through a kind of grieving experience with difficulty trusting and had a difficulty, particularly, with intimate relationships and that her Leaving Certificate results were affected by what had occurred and were not good enough.
24. This witness dealt with psychosomatic symptoms and explained regarding sore throats and that it was likely that there was a physical reason or a psychosomatic reason and he said where oral rape may be accompanied by infection, viral infection of the throat and the upper gastrointestinal tract, and that HIV infection can transmit in that way. He said, depending on the trauma experienced, the quality of the event, whether accompanied by violence, or emotional or psychological violence, these were factors and that abdominal discomfort, pain, and related symptoms are well known to be part of anxiety events, anxiety related memories, recall. He described psychic defence mechanisms as occurring where the mind defends against anxiety and stress, bad experiences, painful experiences, terrifying experiences and, generally-speaking, within the context of something very unusual, which may be traumatic and may be painful with the younger the child the, more likely the feeling of denial and repression.
25. His finding confirmed that the plaintiff had been affected by what she stated had happened and that the events were of an abusive nature. There were moderate levels of anxiety and also a mild level of what is called mood disorder or depression and he considered her presentation represented a characteristic profile of a victim of child sexual abuse. He described “adjustment disorder” as a characteristic long-standing and chronic condition arising out of earlier traumatic experiences. In terms of her mental state examination on the second interview, he found no evidence of any thought disorder and that she was emotionally and affectively more relaxed and more emotionally appropriate, quite mature and generally more stable.
26. During this interview he noted that the plaintiff was more angry now and was worn down and fed up, that she had been up and down, had taken a year off college, had changed her degree course, and spent time trying to build herself up. She felt that she was damaged goods. Her relationship with her then boyfriend (who is now her husband) had been broken off by his choice. She developed alopecia and did not want to socialise. She was terrified of the defendant finding her and she felt that there was a threat that he was going to kill her and that she was in his company quite a lot.
27. This witness, under cross-examination, said that he himself is a trained forensic psychiatrist and that he would always start with the idea firmly in his head that perhaps what is alleged is a fabrication. He took the plaintiff at her word after the two examinations: lengthy interviews and that her subjective view of reality was the truth.
28. Page 6 of his report confirmed that the plaintiff continues to be affected by her abuse and a moderate level of anxiety with significant features of mild mood disorder using the Beck Anxiety Inventory Test. Flashbacks, he indicated, were well-known symptoms of Post-Traumatic Stress and Social Disorder and extreme self-consciousness and her always covering up her clothing were features. He mentioned “family secrets” and made reference of the use of the phase “not surprisingly, other members of both families have been victims of sexual abuse by family members”. His response or explanation for this was that, in the experience of practitioners working with families of incestuous events and victims, the literature is strong on accounts of extended family having members who have been affected by such events and he said it was a background enquiry. He clarified that Post-Traumatic Stress Disorder would have been part of her presentation and that her overall presentation, represented, to him, a characteristic profile of a child sexual abuse victim. He felt that she presented with “adjustment problems”. He accepted the point made by Professor Kennedy that “Ms. C describes the pattern of absent memory, followed by the acquisition of a belief and that he agreed that this was not in keeping with the pattern of memory for real incidents, including traumatic events and it is a pattern described in a particular form of false memory known as recovered memory”. It was put to this witness that his own diagnosis of the plaintiff’s personality, function, behaviour in childhood and teenage years as characteristic of child sexual abuse that Professor Kennedy said “there is no scientific epidemiological or other evidence of any sort for any characteristic link between experience of sexual abuse in childhood and any particular part of developmental disturbance, personality functioning, or behaviour in childhood and teenage years”. Dr McQuaid says that there are many reports in literature and the accepted professional peer-reviewed literature, of the characteristic developmental profiles of young people who are subject to sexual abuse confirmed, where their pattern of later teenage and adult development is particularised, contextualised, and identified and he asserted that Professor Kennedy was not correct in his view on this point, in his opinion. This witnesses did not accept Professor Kennedy’s view that the plaintiff had no characteristic evidence of chronic Post-Traumatic Stress Disorder presently and that the causal inference regarding her being a product of incestuous child sexual abuse appeared to be unsupported. He agreed that depression and anxiety are usually associated with a positive family history across several generations of same. This witness held the view that the plaintiff did not currently meet the diagnostic criteria for Post-Traumatic Stress Disorder. This witness referred to the debate emerging in literature in this area with regard to whether recovered memory is true or false and he distinguishes it, from his own opinion, from his own experience as a trained and consulting child and adolescence psychiatrist and based on his experience, essentially. This witness says that whatever happened, something happened, and that it was an abusive experience of some nature while he says he did not know if it were true or not, but in his opinion, something happened. That something happened of an adverse and abusive nature.
29. Dr. McQuaid commented regarding Professor Kennedy’s view of aided recall, that his is a restatement of the position of those who strongly reject the so-called recovered memory phenomenon. They both agreed that to create an emotional investment into a narrative about history is not evidence of accuracy.
30. Under re-examination, he confirmed that he did not accept Professor Kennedy’s opinion in relation to the debate between the parties as to whether there is recovered memory is false memory or not. This witness said that science in this area was evolving with new imagining techniques which would be on the frontier of science relating to the brain and mind. This witness said that the plaintiff’s problems with depression, anxiety, post-traumatic stress, or any flashbacks, are something which were spontaneous and did not have a cause, or were part of a family pattern. He said it is a very relevant point and said that it would perhaps point to the vulnerability of the plaintiff as a young girl and that there can be family vulnerabilities. This doctor was of the view that he would say it could be spontaneous, it might suddenly occur and suddenly a person can become aware of problems.
31. In relation to the issue of whether the plaintiff’s memories were recovered, or otherwise, are true or false, he said the literature can be of assistance that there are reports of true and false reports, and that there are symptoms, presentations that apply to both states. He referred to delayed disclosure as often being regarded as a primary aspect of a true event, something that comes out late in the day and perhaps it is not necessarily coached or rehearsed or prompted but that there could be such in evidence. He said it could well be false, rehearsed, coached or prompted.
32. The Court asked this witness then on the balance of probabilities whether the plaintiff suffered sexual abuse as described by her, and his response was that something happened, and that it was an abusive experience of some nature and it has been configured in the way that the Court had been advised by way of reports received. He said he did not know if it were true or not but, in his opinion, something happened of an adverse and abusive nature. The Court asked the doctor on the balance of probabilities, did the young lady suffer sexual abuse as described her and his response was that something happened.
Evidence of D.C., Brother of the Defendant
33. This witness gave evidence that the parents of the plaintiff wanted to meet him and on 24th or 25th February: went to visit them and he was told by them that the plaintiff had been sexually abused by the defendant. They begged him not to speak to his brother about this. His evidence was that the plaintiff’s parents wished to get money from his brother, who had sold a business.
34. The plaintiff then came into the room and went straight up to him and he gave her a hug, and told her that he loved her. The following May, the plaintiff’s parents came to his house and they did not wish him or his family to attend the wedding of his niece, daughter of the defendant. They felt that it was likely that he would put his children in danger were they to attend and that it was likely that his children had been abused as well. This witness agreed that his younger sister was quite upset and that he had no reason to doubt his sister, her husband or his niece and that he was very much at the edge of the family, although they did meet on the odd occasion.
Evidence of A.C., Daughter of the Defendant
35. This witness described a close relationship between the plaintiff’s family and her own when they were all younger. Her parents separated. This witness gave evidence that her father is the best man she knows and that he did not abuse her or her sister and she did not believe the plaintiff or anyone else and that it was completely fabricated.
36. She agreed that there was a good relationship between herself and the plaintiff’s mother, but beyond a certain point, did not feel that the plaintiff’s mother was genuinely concerned for her well-being and she concluded that in or about October, 2006. She, herself, suffered from anxiety and bouts of depression. She agreed that, up until 2006, her aunt was there for her.
Evidence of C.C., Sister of the Defendant
37. This witness described having a good relationship with the plaintiff and the plaintiff’s family in the past and having gone on holidays with them. She is a sister of the plaintiff’s mother. This witness alleged that the plaintiff’s mother told her that the defendant had raped her at a very early age. This was said in or about April 2007. This witness said that she told the plaintiff on the telephone that she loved her and that she was there for her. She gave evidence that the plaintiff’s mother told her that the plaintiff was having flashbacks a lot of the time and she had to work with the plaintiff, trying to help her along and trying to find out what was wrong with the plaintiff and to help her find out what it was she was suffering from. She said that was in relation to the incident which allegedly occurred in Co. K. This witness thought that allegation ought to have centred on a different time of year i.e. autumn.
38. This witness conceded that she never had a chat with the plaintiff about what happened. This witness said that the family breakdown in relationships had occurred in May, 2012, and that it was in April, 2009, when she was first told about the allegation against the defendant: on 23rd April, 2009.
39. This witness told the court that her relationship with the plaintiff’s family i.e. her sister, the mother of the plaintiff, broke down following an accusation by the plaintiff’s mother concerning her own family of origin.
Evidence of S.C., Current Spouse of the Defendant
40. This witness gave evidence to what occurred at M. when the children stayed with her in April, 2002. She said the children arrived on the Friday evening and she showed each of them a separate room and that she assumed that they would want separate rooms but they said not they were too frightened and the two younger children, that is S. and C., were happy to share a room which had two twin beds in it and they wanted to sleep there, so she showed the plaintiff then into the guest bedroom.
41. The plaintiff’s mother had told her that the plaintiff was having a period at the time and that she was a bit embarrassed about where to put her sanitary items. This witness had reassured her that there was bin in the en suite for her use only and that she would deal with that.
42. Essentially, save for the specifics of the particular allegation of abuse, this witness confirmed the plaintiff’s evidence and that of her brother in that she said that they helped scoop out algae from a pool and she and the plaintiff and that the other two children spent a lot of time playing on the computer upstairs in the office or watching television downstairs. She further described how they went for a walk past the local garage where the children saw a blue Subaru on sale and which her husband did buy a few days later on and that he took the children for a ride in it a couple of weeks later.
43. This witness’s account differs from that of the plaintiff in that, with regard to 4pm on the Sunday afternoon, she did not remember the plaintiff telling her that she felt unwell or that she wanted to lie down. This witness told the Court that she would not have left the plaintiff alone for an hour without checking on her had she been unwell. This witness confirmed that the plaintiff’s parents made two telephone calls to her; firstly, to say that they had checked out of the hotel early and that they would be arriving early and then a second time to say they were nearly there. It was about 5pm at that stage. This witness said she did not notice the plaintiff being exceptionally quiet. This witness confirmed that, three weeks later, they were invited to a Holy Communion and that they had a barbeque during the summer in the back garden with the plaintiff and her family.
44. This witness confirmed that she was in Las Vegas with her husband when they received a telephone message from her stepdaughter informing her of the allegation of the defendant having assaulted the plaintiff, and that she and her husband were in total disbelief. She gave further evidence of the arrest and questioning of her husband and that the DPP ruled in their favour that there was no case. In relation to the second allegation, this witness said that their house has wooden floorboards, is noisy, and creaky. She said one can see the bedroom from the first floor and that the plaintiff could have used the en suite in the room she was in, but chose to go down to the bathroom and that it is impossible to walk around the house without making a noise. This witness denied that the plaintiff’s brother was ever punched by the defendant as he alleged. She accepted that they only evidence she could give about the alleged incident was that she was in the house on the date in question and her view was that if anything had happened she would have heard.
45. She confirmed, under cross-examination, that the plaintiff was in the first room at the top of the stairs on the right hand side which had a double bed, while the two younger children were in a room with twin beds. This witness agreed that the computer was to the back of the house. It was a bedroom but not used as such and it was used as a study and had computer games. The children played computer games on the computer in that room and that all those things the children say about that are correct. She agreed that the children had been shown the school where she had worked and they also visited a graveyard and that on the way back they looked in a garage showroom, at a car which her husband subsequently bought.
46. This witness could not recall either going to the shop to buy some sweets and that a dog followed the children back or that the two girls brought the dog back down to the shop nor did she remember the dinner in the middle of the day but she said they probably did have something to eat.
47. This witness agreed that she was aware because she had been told by the plaintiff’s mother that the plaintiff was having a period and that she was not feeling great. She said she had no proof and only took their word for it. She did not remember the plaintiff going up to the bedroom but agreed that it would not be that unusual if she did have cramps from period pains at her age. This witness did agree the fact that the plaintiff’s brother was upstairs in the computer room would mean that there was noise coming from upstairs. She accepted that she could not be with two children if they were in a separate places and that she could not have been with the three children if the plaintiff was also in the bed.
48. The court noted that it was unchallenged that the plaintiff’s brother was upstairs on the computer. L. was in her bedroom and S. was downstairs since that is where her brother went to join her. This is uncontroverted evidence. This witness was of view that they children were not telling the truth about where they were. She confirmed that it was 4th May, 2007, when she received the telephone call in Las Vegas alleging what had occurred.
Evidence of B.K., Younger Daughter of the Defendant
49. This witness confirmed she had some issues when she was younger and still does, that she is anxious, suffering from depression and panic attacks, and that the plaintiff’s mother had told there had to be a cause for them and that she wanted to see a hypnotist and told her they would be able to find out what happened when she was younger. She said she had no recollection of the first incident alleged to have occurred in 1994 and no recollection of the plaintiff staying over in the house with her on a sleepover and that there was such a gap in their ages, nor did she believe that there was a sleepover on the sitting room floor of her house.
Evidence of M.C., Former Spouse of the Defendant
50. This witness described herself as a homemaker. That she lives at a different address to the former family home. She was married for 25 years to the defendant but separated in 1996 and divorced in 2005. She knew the plaintiff’s mother, who is said was a flower girl at their wedding. She said she had no recollection, herself, at all, of the plaintiff having stayed at their house in 1994 on a sleepover.
Evidence of Professor Harry Kennedy
51. Professor Kennedy is a Consultant Forensic Psychiatrist and Executive Clinical Director at the National Forensic Mental Health Service and Clinical Professor of Forensic Psychiatry in Trinity College, Dublin, since 2000.
52. While called on behalf of the defence, he described himself as a neutral witness for the Court. He interviewed the plaintiff on 9th September, 2010, when she was 22 years of age. She gave a valid consent to the interview. This witness confirmed that she told him she did not disclose her allegations of abuse against the defendant until she told her mother in April 2007. He noted she was assessed by Dr Paul McQuaid, Consultant Psychiatrist, on 19th September, 2007; 6th November, 2007; 18th December, 2007; and 6th July, 2016. In addition, the plaintiff indicated to this doctor that she was a victim of sexual assault by an uncle on her father’s side and that had occurred in 1996 when she alleges that she was digitally penetrated.
53. This witness referred to her reply to notice for particulars dated 23rd March, 2009.
54. Paragraph 2C reads “the plaintiff has always remembered the assault”. This witness disputed that this was in accordance with her account to him. He was highly critical of Dr McQuaid’s report and conclusions. In relation to the list of Dr McQuaid’s recorded symptoms which the plaintiff had, there are seventeen in all and he said some are non-specific behavioural symptoms with no obvious relevance and none of them can be taken as evidence of anything other than depression and anxiety. He took the view that social withdrawal and male avoidance could all be deemed normal in adolescence or could arise in association with depression and anxiety. He said the following were of no psychiatric significance: sore throats as a teenager; concern not to damage the relationship of the defendant with her mother, his sister and family; renal infections; stultified professional ambition to be physiotherapist.
55. This witness criticises Dr McQuaid, noting the plaintiff developing abdominal pains in and around the alleged first sexual abuse but he says no age or date at which these symptoms appear was given, nor did Dr McQuaid have any independent source of information. As to whether this was new onset or a recurrence of childhood colic for example and that Dr McQuaid relied only on the history given by the plaintiff and her mother. This witness felt there should have been independent contemporaneous sources, for example, such as general practice records or school records. He criticises Dr McQuaid for, as he saw, heavily relying on inference and assumption without giving a basis for his assumptions or inferences. It is highly critical of the methodology of Dr McQuaid who used the general health questionnaire, the Beck Anxiety Inventory and Beck Depression Inventory. He said these are all self-report questionnaires, influenced by subjectivity, and were not intended to be used as diagnostic instruments. He disputed that these tests could confirm that the plaintiff continues to be affected by her abuse experiences.
56. This witness doubted Dr McQuaid was correct and felt he had made errors of inference by concluding that the plaintiff had a characteristic profile of a child sexual abuse victim. He said there was no such characteristic profile, nor was there any specific link between any specific mental illness and sexual abuse in childhood, notwithstanding that it was traumatic and harmful. He listed a number of defence mechanisms, but he said they were Freudian artefacts and they might be vague, interpretative and essentially metaphorical rather than causal associations.
57. This witness agreed with Dr McQuaid that the plaintiff had an anxiety disorder but disagreed that there was any characteristic evidence of chronic Post-Traumatic Stress Disorder and the casual influence was unsupported as to her being a product of incestuous child sexual abuse.
58. This witness based his opinion on the belief that the plaintiff’s evidence that she was abused by the defendant is a recovered memory. He took it to be contradictory when the plaintiff had said “I always remembered” the incident and the words “up until then I had blocked him being there”. It was put to him that this does not mean that it is contradictory or that she had forgotten it, but he took it be contradictory.
59. It was put to this witness that her answer to 3C in the replies to particulars was what she had told him earlier, that she always remembered that incident and he disagreed with that.
60. This witness is highly critical of Dr McQuaid’s belief in repressed memories and endorsed by him and he said it is a belief which is held in unconventionally-trained therapists. Both of them are fellows of the Royal College of Psychiatrists and it is strongly advised against by that college, in the view of this witness.
61. It was put to this witness that he always remembered that those words are the same as what is said in the answer at para. 3C, p. 33 saying she had “always remembered it” and he said, “yes it is”. Then he was asked about the words “I’ve always remembered that” and it is said in two different places and if that is not the same thing. His response was that because it is in the same passage, there is a contradictory statement and it was put to this witness that there was nothing to suggest in the passage that it is a recovered memory that came either by way of a recovered memory as suggested in the latter part of p. 9 of his report, when he is referring to the 1994 and 1996 incidents that there is a huge difference between what he had written down in relation to the three incidents, one in 2002, one in 1994, and one in 1996. He did not agree with that and he said he was suggesting that they were the same.
62. This witness freely admitted that he disagrees with Dr McQuaid in relation to his psychodynamic theory. This witness answered in the affirmative to the question of would he accept if the plaintiff experienced penetration digitally, penetration by the penis, and then oral rape, they would qualify as a traumatic event as far as a diagnosis of Post-Traumatic Stress Disorder was concerned. He added that there was another traumatic event known to him which was excluded in that question. This witness took the view that current involuntary and intrusive distressing memories of the traumatic events were not present. Recurrent distressing dreams of which the content and/or the effect of the dreams related to the traumatic events were not present, nor did he feel that flashbacks in which the individual feels or acts as if the traumatic events were occurring were present, nor did he believe that intensive or prolonged psychological distress that exposure to internal or external queues does symbolise or resemble an aspect of the traumatic events was present nor did he believe there was a marked physiological reaction to internal or external queues symbolising or resembling an aspect of the traumatic events were present. He said he could find no evidence of these.
63. Significantly, however, this witness did accept that a person can suffer from Post-Traumatic Stress Disorder for a certain amount of time, and then some of these things go. Therefore, it is no longer Post-Traumatic Stress Disorder and he agreed that that was correct and that it was important in preparing a medico-legal opinion to have access to as much contemporaneous records, particularly clinical records, as possible. He did agree, however, that there was evidence in medical notes provided to him following symptoms of anxiety and panic which can sometimes be confused with some of these symptoms. He did not think there was a dissociative reaction and he felt that for there to be psychological distress of exposure to internal or external queues, it would have to be more severe.
64. This witness accepted he was neither present for the plaintiff’s evidence nor did he see her reaction. He said he did have the advantage of interviewing her. It was put to this witness that Dr McQuaid did diagnose the plaintiff as having Post-Traumatic Stress Disorder, but not currently and his response was on the basis of the history he took, his examination and review of the information available to him that neither he nor any other psychiatrist could diagnose Post Traumatic Stress Disorder. This witness felt she did not fulfil the textbook definition for Post-Traumatic Stress Disorder in terms of “C. Persistent of avoidance of stimuli associated with the traumatic event as occurred, being evidenced by one or both of the following:-
(i) avoidance of or efforts to avoid distressing memories, thoughts or feelings about her closely associated with the traumatic events; and
(ii) avoidance of or efforts to avoid external reminders, people, places, conversation, activity, objects, situations that arose, distressing memories, thoughts or feelings about or closely associated with the traumatic events.”
65. He said there was not avoidance, and he based this on the fact that she had a boyfriend sustained over a period of time who had difficulties, but that this was understandable and normal. He said that subjective feelings, subjectively interpreted, are not evidence of causation.
66. Dr McQuaid had indicated in his diagnosis that at a period of time in her life after these things happened the plaintiff had Post-Traumatic Stress Disorder. He said that flashbacks are vivid memories and re-experiencing and he said the flashes the plaintiff described, he saw as anxiety attacks. He agreed nonetheless that in Dr McQuaid’s first report, p. 2, that of 21st January, 2008, the plaintiff told Dr McQuaid she did have flashbacks. It was his view and he said he asked her what she meant by flashbacks and what she said to him did not describe to him what flashbacks are. Dr Kennedy thought that the content of the flashes did not include full memory, therefore they could not have been flashbacks. She had used the words “told her mother about the flashes she was having” and “a couple of days later when I felt safe I let myself remember fully the memory”.
67. Going through Professor Kennedy’s report and the criteria for Post-Traumatic Stress Disorder regarding the issue of avoidance, “Category C”, he said the fact that he believed her to have had a subsequent normal relationship with a boyfriend would diminish the evidence for that.
68. He felt that it wasn’t enough to meet the diagnostic criteria if the person was having a functioning life and it was put to this witness that he was suggesting that if somebody had Post-Traumatic Stress Disorder they could not live a normal life. He said in psychiatry that simply words are never enough in a diagnosis and there must be functional impairment. He felt that to reach the threshold for the diagnosis regarding No. 2 that regarding avoidance or difficulties with men, trust issues and he said people with Post-Traumatic Stress Disorder have much more severe problems.
69. His response to Dr McQuaid’s reference to the guilt feature was that it is also a feature of depression and anxiety particularly associated with depression, although he agreed that it can be one of the things associated with post-traumatic stress. This witness accepted that it was possible that anxiety and panic attacks and depressive illness which the plaintiff may have may have been exacerbated by the sexual abuse, if it took place, and he agreed that it was possible and that they could have been caused by it.
70. This witness felt that the plaintiff did not meet a criterion for a required minimum duration for criteria B, C, D, E to qualify as having Post-Traumatic Stress Disorder at the time he saw her. He accepted that items 4, 5, 6 and 7 were all about the recovering of memories and that he is called here to give evidence about reliability insofar as matters are psychiatric, but he said in relation to false and recovered memories, they are matters of reliability and he can give evidence on them. His view is that all the plaintiff described to him were so-called recovered memories but he did accept and does accept that she had an anxiety disorder and does have an anxiety disorder.
71. This witness was asked if we accept the evidence of causation is weak, the next question is that of exacerbation, but the Court asked this witness was it only weak if one were arguing that they alleged offence when she was six years old did not occur that it appeared to be all premised on that, but that if she had had such an event at aged six and she was described as nervous as a child at the age of seven that it would not be that surprising and this witness agreed that the question of causation turned on that. He mentioned a fire which was a traumatic experience for the plaintiff in 1993. He said her description of symptoms subsequent to that are all features in keeping with that.
Evidence of the Defendant
72. This witness confirmed, in many respects, the version of events of the weekend in 2002 as reported by the plaintiff and her brother, save for the actual allegation of alleged abuse. He did not recall a dog following them home and he says he thought they had dinner between 2pm and 3pm. This witness said that when the parents of the children returned they spent at least an hour together discussing the events of the weekend and that all three children were happy and cheerful saying that they wanted to go back again. This witness said that three weeks later he was driving his new Subaru with the children in it on the day of C.’s communion and that they shouting and saying “faster, faster, faster”. This witness said that the DPP decided not to prosecute and that ruling was made in January, 2008. He said that three weeks after that he was arrested and brought to T. Garda Station and he realised from the pleadings that there was a second allegation against himself and a separate case against D.C. for alleged assault i.e. the plaintiff’s uncle on her father’s side.
73. This witness denied that he touched, harmed or did anything to the child. This witness denied the plaintiff’s version where regarding the earlier incident when she was aged six although, under cross-examination, the defendant admitted that he brought his daughter, B., and the plaintiff to hospital the following day and he denies that she ever stayed in his house at T. at that time. The Court disallowed certain of the evidence on the basis that certain items had not been put to the plaintiff and the defendant was prevented to give a different reason as to why the brother of the plaintiff would be in an office was not in the office or playing in the office as alleged. These were matters which were not put.
Under Cross-Examination
74. Under cross-examination, this witness said that part of his belief was that the plaintiff was prevailed upon by her mother and father to tell a false story about him. This witness agreed that his sister had given evidence to the effect that the alleged incident occurred in the autumn regarding the second incident. This witness did not agree that it the allegation centred on April, 2002. This witness agreed that his sister, the plaintiff’s mother, had called him in March in respect of whether the children would be staying with him and he said it was a couple of weeks later that they actually stayed with him in 2002. He agreed that Counsel was correct in saying that the plaintiff never stayed with him in the autumn and that the Court could discount any suggestion that they did so in the autumn.
75. This witness accepted that the plaintiff stayed on the Friday and Saturday night that she was in the sitting room and kitchen and would have gone upstairs and gone in and out of her own bedroom and would have been aware of where her brother and sister were sleeping beside her. His response was that she made twelve further visits to his house this was with regard to whether or not she had an accurate recall of the layout of the house.
76. This witness said that his wife would have checked up on the children if she understood one of them to be ill and he said she did voluntary work in a school of 30 children and he didn’t doubt but that she would have checked on a sick child several times.
77. This witness said that he paid €150,000 to a solicitor and still owed €40,000 in respect of this case and he said that his solicitors had come off record five years previously. He was granted legal aid in 2013/2014 but it was rescinded because he couldn’t get the release of his file and he didn’t go to the Law Society about that.
78. He agreed that the delay from 2012 to 2014 was because of him trying to get legal aid.
79. It was put to this witness that he complained about Dr McQuaid to the Medical Council for he ought to have known that there was a similar procedure to complain about his solicitor who wouldn’t give him his file. He had also agreed that he wrote a letter of complaint to the junior counsel acting on behalf of the plaintiff who represented Dr McQuaid at some of the court hearings and he said that his complaint was that, in court, he was referred to as someone who had committed a sexual offence at a call-over and that a colleague of his was present in that court and turned his back to the wall and he said his complaint was a polite letter to the barrister concerned, saying that he would prefer that, whatever happened in court, he did not want to be put in a place and to be referred to in such a manner and he said it was polite and firm letter.
80. This witness agreed that he wrote a letter of complaint during 2015 in relation to a solicitor who had written him a letter dated 5th March, 2008, seeking her apology and he said in this letter he was being referred to as depraved and he objected to that. He later produced a letter showing that he couldn’t comply with the legal aid obligations. It was put to this witness that it could equally have been anxiety, stress, depression, caused by virtue of the fact that he had been caught out what he had done just as equally as an explanation but he denied this. This witness categorically denied this alleged assault to the plaintiff and to her brother regarding the 2002 alleged incident even though it was put to him that she had a very clear memory of everything else which had happened that same weekend.
81. In relation to the type of house he had in 2002 and its construction on his own evidence, given those factors, it meant that noise could be heard in the house and it was put to him, therefore, that his wife wouldn’t be surprised if she heard noise and he responded that there was a difference between someone moving around and someone gagging for ten minutes and that if someone was being attacked in that house upstairs that would have been audible throughout the house.
82. It was put to this witness that what happened was very quiet, very silent, and wouldn’t have been heard by anyone and that in her description the plaintiff hadn’t described any threatening behaviour to her with a fist. She didn’t say that he had said anything to her nor had she given the impression of a violent struggle between them. This witness then admitted that he didn’t hear the word attacked. Again, he denied orally raping or attacking the plaintiff.
83. This witness appeared convinced that it was the parents of the plaintiff who had put these stories into her and had forgotten that the room she occupied had an en suite on the occasion. It was put to this witness that on a number of occasions he told the court that it had never happened and now he was telling the Court that he didn’t remember it happening and he was saying that he didn’t remember it absolutely because he couldn’t remember if the plaintiff was in the pond at 2 o’clock, although she was at some stage. The plaintiff refused to withdraw statements when he had said in his evidence that the children were downstairs eating sweets on the Sunday afternoon on the basis that he didn’t actually remember that and that the plaintiff didn’t go upstairs, was never upstairs because the plaintiff didn’t remember whether it happened or not but he refused to withdraw these items. He told the Court that they were never upstairs on the Sunday and he agreed that that was the case. Inconsistencies were put to this witness in relation to his own evidence as follows:
i.) It was put to him that he told the court first of all that the children were downstairs eating sweets. He says this is a memory because his wife and he discussed it, that they went to the shops and had sweets and had lunch between 2pm and 3pm.
ii.) It is put to him that the children he has said were never upstairs and he is asked is that a memory or a situation where you don’t know or you don’t know whether they were or they weren’t and his response was that the plaintiff’s brother was never upstairs except to sleep and he is asked to accept that it was never put to him when it was suggested and he didn’t respond to this.
iii.) This witness said that he never suggested to the plaintiff’s brother that the plaintiff’s brother wasn’t at that computer or was never in his study and he said that he was very shocked could hardly speak when that evidence was notified to him on the second day at hearing. It was put to him that he never suggested to the plaintiff’s brother was he ever in the computer room and he said he didn’t put that to him and he asked him what computer and what game because he knew he hadn’t any games.
85. This witness reiterated that he and his wife had no recollection of the plaintiff going upstairs to lie down and he said he can’t say definitively that she did, he said he was happy with his decision to say definitively that she didn’t go upstairs.
84. It was put to him that his wife’s evidence was that the child did have a period that weekend and that she went upstairs in the afternoon because of cramps and he agreed that his wife had said that.
Recall of the Brother of the Plaintiff: C.
86. It was put to the witness that he couldn’t say how he got access to the computer and that there were two passwords and there no games on the computer that it was an office one and he denied this and he said he remembered playing “Lara Croft Tomb Raider”. There was an objection raised to further re-examination of this witness on the basis that both sides had this witness’s name on their schedule and while the defendant didn’t choose to call him or to issue a subpoena, that he was on his schedule.
87. He didn’t know what he was going to say so he cannot now say he was surprised by him giving evidence and there was an objection to further evidence being given at this stage by this witness.
Submissions on Behalf of the Plaintiff
88. A number of points are made in the submissions on behalf of the plaintiff and it is not necessary to reiterate the evidence of both incidents concerned at this point. The court notes that the point is made that the plaintiff, under oath, told the Court that at the end of February, 2008, she told her mother about the 1994 incident and that until late 2007/early 2008 she must have blocked the horrific occurrence of the first incident of abuse from her memory for many years. She gave evidence of having had flashbacks which had made her feel physically ill and she had been unable to attend college or work regularly and in late February, 2008, she explained to her mother what had happened in 2004. The fear of causing a breakdown in family relations it was submitted was a large part of her being prevented from disclosing the alleged abuse prior to that. She was motivated by concern that if she did not disclose the alleged abuse and the same thing happened subsequently to other children she would feel to blame. She stressed that her parents never questioned her about sexual abuse of any nature prior to her disclosure to them.
89. Her evidence had been that, after the incident in 2002, her reason for travelling to the bathroom landing was that she got comfort from hearing her sister and her brother downstairs and she used the landing bathroom as opposed to the en suite. It is submitted that she felt a sense of security knowing her siblings were within earshot of that bathroom.
90. Her physical and mental issues as a result of the alleged abuse in her view are well-recounted and referred to in the medical evidence, as well as in her own evidence.
91. Regarding the 7th April, 2002, her brother said that he found the defendant kneeling on top of his sister, putting his penis into her mouth, and that he froze for a moment at the bedroom door before going downstairs to the kitchen and then joining his other sister in the television room. He gave evidence of being followed downstairs when the defendant realised that he had seen what had taken place. He described the defendant as following him into the kitchen, coming up very close to his face and telling him not to mention what he had seen to anyone before punching him in the stomach. This witness was visibly upset in court giving his evidence and began to cry. When he was fourteen years of age, he told his mother about this incident and later his father. He said he would feel unwell when he thought of this abuse and it was best to tell someone. He insisted that he knew what he saw and that he would never make something like that up. At the request of the defendant, this witness had been recalled to be allowed ask him how he gained access to the computer and he said he did not recall how. It was put to him that there were two passwords on same and he said nonetheless he had been playing on the computer on the date in question and this was a new allegation being put to him. The defendant’s wife had accepted in cross-examination that he was indeed playing on the computer on the date in question. At no stage was there a suggestion of a password preventing him accessing the computer.
92. It was submitted that the evidence of Dr Paul McQuaid was based on four separate mental health evaluations between 2007 and 2016, and his opinion was that the plaintiff suffered chronic Post-Traumatic Stress Disorder as a product of incestuous child abuse in addition to an associated anxiety disorder.
93. The first report was 27th June, 2017 and second, 20th September, 2017.
94. Professor Kennedy, Consultant Forensic Psychiatrist, gave a report dated 13th October, 2010. It is submitted that all the evidence would suggest that the human mind certainly buries isolated stand-alone events of high emotional stress that if such experiences are reported then they ought to remain within the grasp of our memories.
95. While Dr McQuaid concludes that there is no debate about whether or not she was sexually abused as a teenager in 2002, he says that the second alleged event would have significance of triggering the memory of what happened some seven or more years previously. He believes that could have triggered the memory of the earlier abuse and resulted in the earlier abuse coming back to the plaintiff in flashbacks so as described by her.
96. Reference is made to Hickey v. McGowan & Ors . [2014] IEHC 19 discussing the issue of recovered memory in historical child sexual abuse cases. O’Neill J. referred to what he saw as “spontaneous recalling, without any therapeutic or other process, of memories which had been suppressed or blocked out by the plaintiff, by this time, for about thirty years.” And he concluded “that the plaintiff, as a result of this sexual abuse, suffered a severe Post-Traumatic Stress Disorder characterised, initially by extreme avoidance to the point that for almost thirty years, he totally blocked out any memory of these events. Having elicited these memories late in 1999, for a number of years thereafter, he suffered the more typical symptoms of Post-Traumatic Stress Disorder.”
97. The plaintiff gave clear evidence that although she did attend therapy sessions, at no time did she engage in a memory recovery process with the therapist. It is submitted, therefore, that the plaintiff has suffered for more than ten years with many of the same profound effects suffered by the plaintiff in the above case which the judge was satisfied were a direct result of the sexual abuse he had suffered.
98. It was submitted that the second incident of alleged abuse never had, as part of it, an issue of recovered memory but triggered the memory of the first incident of alleged abuse causing the memory of the first incident to come back to the plaintiff gradually in flashbacks. It is submitted, therefore, that the issue of memory recovery does not arise in relation to the second incident of alleged abuse; the plaintiff always remembered the second abuse allegation incident but thinks she suffered alone and in silence for more than five years.
Submissions of the Defendant
99. The defendant sees these allegations as a continuum of a pattern of defamatory and malicious falsehoods in an effort to do him harm and extract money from him. The standard of proof is to be applied with a degree of flexibility and where serious allegations are made they will be required to be clearly proved in evidence: (O’Flaherty J. in O’Laoire v. Medical Council (unreported Supreme Court, 25th July, 1997) “the common law paranoia this time gives the impression that there is but one standard of proof in civil cases though, of necessity, it is a flexible one and this flexibility will ensure that that the graver the allegation, the higher will be the degree of probability that is required to bring home the case against the person whose conduct is impugned”. The defence do not limit their contentions but they do say that the Court should have significant regard to a number of factors including the delay in reporting of the allegations, the difference between her direct evidence and previous statements, in assessing both her credibility and reliability: the fact that her brother gave evidence although his position as witness allegedly was not brought to the attention of the Gardaí by the plaintiff in November, 2008, when reporting the alleged 1994 assault, and it is submitted that this is completely improbable and incredible.
100. It is stressed that the brother is not mentioned in any of the medical reports relied upon by the plaintiff and reference is made to unsubstantiated allegations referred to by Dr Paul McQuaid in the description of the assaults to him by the plaintiff’s mother.
101. No reference is made to the plaintiff’s brother in the pleadings in relation to the 2002 assault and the first time the defendant became aware of such evidence was in the opening of the case.
102. No evidence is given of discussion of this assault as between the plaintiff and her brother. The fact that the plaintiff’s parents were not called is also seen as significant by the defendant.
103. Highlighted inconsistencies include that the Court was told by the plaintiff that she was at a sleepover with one of the defendant’s daughters whereas the statement of claim refers to two daughters.
104. The first alleged assault does not appear to have been contained in any application to PIAP and the Court is urged not to limit its assessment to the oral evidence but to look at the inconsistent statements or inconsistencies in reporting matters to the experts. The Court is asked in fact to consider the exigencies of s. 26 of the Civil Liability and Court Act, 2004 in assessing as to whether the plaintiff’s evidence is credible on the one hand or is false or misleading on the other hand.
105. The plaintiff’s brother was approximately seven years of age at the time of the 2002 alleged assault and prior to the opening of the case, it was never suggested that he had witnessed the incident either in the statement of claim or arising out of replies to particulars nor was her brother’s evidence or recollection reported to An Garda Síochana or to Dr McQuaid by the plaintiff or her mother, or to Professor Kennedy. The brother’s allegation against his uncle in terms of the alleged punch to the stomach are neither pleaded, disclosed, nor reported. The Court is asked to consider this.
106. The defence were not happy with the plaintiff’s explanation when she made a statement to the Gardaí on 29th May, 2007, where she said that the alleged assault occurred in autumn 2001 when she was thirteen years of age, and she accepted that the statement was taken on 29th May, 2007, was accurate, but then offered a reason for incorrectly identifying the date. She explained this and changed the date to April, 2002, by reference to going back and looking at visa records and she said that she was conscious she started to have her period and that occurred in the autumn.
107. The defendant submits that on 16th June, 2005, when the plaintiff complained to Garda Geraldine Ennis that she had been sexually assaulted by her father’s brother in September, 1996, (transcript, 20th June, 2017, p. 34, paras. 27-29) and at that time she failed to report the alleged assault by the defendant her response was “I didn’t say anything because I wasn’t ready or able or had the strength to disclose about somebody new and somebody like I said that we had had a much closer relationship”. Transcript 20th June, 2017, p. 39, paras. 3-5 the defendant submits that this lacks credibility as an explanation. The Court is asked to consider that it was only after the DPP had decided not to bring charges against the defendant that the plaintiff made an allegation that there had been a previous sexual assault in 1994. The plaintiff also agreed that she did not recall her brother coming in during the second alleged assault on 7th April, 2002, and that she passed out. This is deemed to be significant in the context of her never having discussed or given any evidence of having discussed the second allegation with her brother. The various social gatherings attended by the plaintiff were also noted the court is asked to have regard to the contradiction between the plaintiff’s activities shortly after the alleged assault and that it appeared she informed Imelda McCarthy in assessing the plaintiff’s credibility and reliability as a historian of facts pertaining to her. The significant main anomalies in the view of the defendant, evident upon the plaintiff’s cross-examination are:
(i) The fact of the plaintiff being abused by a third party and her ability to report this abuse but not the abuse allegedly perpetrated by the defendant.
(ii) The delay in the plaintiff reporting either and both incidents (i.e. 1994 and 2002) to her mother and other parties.
(iii) The timing of the indication of no prosecution by the DPP and the making of the complaint vis-Ã -vis the 1994 incident.
(iv) Whether the second incident took place in the autumn of 2001 or April, 2002.
(v) The lack of documentary evidence to back up the plaintiff’s assertion of April, 2002.
(vi) The ability of the plaintiff to provide significant detail to the Gardaí in November, 2008, in respect of an incident of which she had no recall prior to that time.
(vii) The fact that the plaintiff’s father’s input into the November, 2008, statement to the Gardaí.
(viii) The failure of the plaintiff to use the en suite bathroom when she had been informed that it was available to her to use.
(ix) The discrepancies between the plaintiff’s contact with the defendant and the history given to Imelda McCarthy.
(x) The plaintiff’s lack of recall of having attended Anne O’Loughlin.
Dr McQuaid’s Evidence
108. The defendant has a number of issues with and/or arising out of Dr McQuaid’s evidence as follows:
(i) That he relied upon history provided by the plaintiff’s mother in expressing his opinion.
(ii) That diagnostic tests were not carried out by him.
(iii) He made a number of concessions in cross-examination that undermine his position as an expert.
(iv) The plaintiff’s presentation with an affective disorder could be attributed to a familial history.
The Plaintiff’s Brother’s Evidence (C.C. on the Transcript)
109. The defence’s contention is that the court may take cognisance of the fact that there is no reference is the statement of claim, replies to particulars or any other document (including Garda statements or the medical records) which identified the plaintiff’s brother’s evidence or the nature of his evidence nor did he make any statement to the Gardaí in respect of what he allegedly saw. Furthermore, no explanation is offered as to why he didn’t report his evidence to An Garda Síochana when the plaintiff was making her statement and allegations to the Gardaí.
110. Significantly the Court is urged to note that the plaintiff’s mother who was not called to give evidence according to the plaintiff’s brother was made aware of this evidence in 2008 but did not advise Dr McQuaid about this potentially relevant fact. This is deemed not to be credible in the view of the defendants.
Evidence of the Defendant’s Brother (D.C. on the Transcript)
111. He met with the plaintiff’s parents either the 24th or 25th February, 2007, in the plaintiff’s house. His evidence was that he told that the defendant “had sold your business for millions and that they were going to get the money off you”. Transcript of 21st June, 2017, p. 24, paras. 27-28: his evidence was that the both allegations regarding B.P.R. and M. were mentioned this was despite the fact that the plaintiff’s evidence was that she only told her mother of the 1994 incident in 2008 and the 2002 incident on 16th April, 2007. It is alleged that there is a direct contradiction by the plaintiff that she blocked out memories of the 1994 incident until February, 2008, and the court should be mindful of the use by the plaintiff of the concept or theory of recovered memories to excuse or explain why –
1. she never reported the alleged assault which took place in 1994 at the time or until February, 2008 and/or
2. why she did not mention the earlier assault when she made a complaint to the Gardaí in November, 2007 and/or
3. she made the further allegation after she was made aware that the DPP would not be prosecuting her complaint in respect of the 2002 allegation.
The Defendant’s Daughter’s Evidence (A.C. on the Transcript)
112. The evidence given, it is asserted, was suggestive of the plaintiff’s mother being obsessive about the issue of sexual abuse in that the defendant’s daughter’s evidence was that the plaintiff’s mother suggested that she might have been abused by her childminder as a child and a suggestion that her grandmother might have done something to her. This evidence was uncontroverted and the court should have significant regard to this evidence regarding the involvement and insinuation of the plaintiff’s mother in the bringing of this claim in particular the describing the alleged incidents to Dr McQuaid despite the fact that the plaintiff was aged nineteen at the time of the review.
The Defendant’s Sister’s Evidence (C.C. on the Transcript)
113. This witness told the court that in April, 2007, she was informed by the plaintiff’s parents in their home that the defendant had raped or abuse the plaintiff. This witness and the plaintiff both referred to autumn 2001 and the plaintiff’s explanation was “Yes at that time I started to have my period and in my head then was I thought that was in fact autumn. When we went back and looked the visa record said April, 2002.”
The Defendant’s Wife’s Evidence (S.C. on the Transcript)
114. The defendant’s wife had informed her that the plaintiff was having her period and was a bit embarrassed as to where to put sanitary items and the plaintiff was informed of the bin in the en suite. It appeared that the plaintiff did not recall the en suite and when questioned she said the door of it was closed. Her evidence was that they arrived and everyone was having a good laugh, this was when the parents of the plaintiff arrived back. The defence say this is highly relevant evidence with regard to what was just alleged to have occurred. His wife also said the children were pleading to come back as soon as possible. This witness said she did not believe the plaintiff was in the house in 1994 and that if ever they used to camp it would be in her own bedroom not the TV room. There is an indirect contradiction of the plaintiff’s evidence that the incident of a sleepover took place downstairs in the TV room.
The Defendant’s Former Wife (M.C. on the Transcript)
115. This witness had no recollection that the plaintiff stayed in their house in 1994 at a sleepover. The evidence was not contested that their daughters had large bedrooms and that the house had a spare bedroom.
Professor Kennedy
116. He confirmed that he interviewed the plaintiff on 9th September, 2010, when she was 22 years of age. The main thrust of his evidence on p. 9 of his report was that patterns of absent memory followed by acquisition of a belief were not in keeping with the pattern of memory for real incidents including traumatic incidents. It is pattern described in a particular form of false memory known as recovered memory. He was critical of the idea of using a hypnotist as entirely unreliable, without any scientific basis and a recognised risk factor for false memories and this was echoed in his oral evidence. He was critical of what he called false memory including so called recovered memories of abuse. The Court noted that the plaintiff had denied seeing a hypnotist under cross-examination and the Court would have to determine the likelihood of the plaintiff’s recollection being correct having regard to this evidence and the discovery documentation of the plaintiff and Professor Kennedy repeated this observation in evidence.
117. Professor Kennedy observed that reply to Particular 3C, dated 23rd March, 2009, in respect of the alleged abuse dated 7th April, 2002, did not accord with the plaintiff’s account to him. This witness said that psychic defence mechanisms is psychodynamic terminology with no special status or significance and that the terms “functional and repressed” have no scientific medical or psychiatric meaning; they are jargon terms from psychodynamic theory which is not accepted now as part of conventional or scientific psychiatry and he says this in criticising the use of that term by Dr McQuaid.
118. Dr McQuaid set out seventeen symptoms and Professor Kennedy says that in respect of one, three, four, six, eight, twelve, fourteen, fifteen and seventeen as set out by Dr McQuaid that none of these can be taken as evidence of anything other than depression or anxiety. He says they can effectively, in respect of five, nine and eleven, be summarised as social problems and he says they are of doubtful significance or relevance. He felt that independent supportive evidence was required regarding dates before a causal inference of any sort maybe made and he was critical of Dr McQuaid for relying on inference and assumptions without giving a basis in fact for his assumptions or inferences and he felt that dysfunction is something which can have alternative reasons to explain it other than sexual abuse and is critical of Dr McQuaid’s report in that regard.
119. Professor Kennedy was highly critical of Dr McQuaid’s conclusion that the plaintiff presents a characteristic profile of a child sexual abuse victim and he said there is no scientific evidence of any sort for a characteristic profile or any other specific link between any specific mental illness and sexual abuse in childhood. He was further critical that Dr. McQuaid appeared not to be aware that allegations against other members of this lady’s family and allegations of victims in both families have not been established in that he appears to have fully accepted that what were no more than suggestions put to him by L.C. and her mother.
120. Professor Kennedy hung much on the view that the plaintiff had told him that she had always remembered it but then said “up to then I had blocked him being there” in relation to the allegation in April, 2002, and he felt that she was contradictory she said she always remembered it. She refuted the idea that the alleged assault in 2002 was of type that could be described as a recovered memory.
121. Reference is made to Charleton J. in James Elliot Construction Limited v. Irish Asphalt Limited voted with approval a passage from the judgment of Stewart-Smyth L.J. in Loveday v. Renton [1989] 1 MED LR 117 as follows:
“The court has to evaluate on the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence, the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which an witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct …”
122. The reference to the court deciding between conflicting experts drawing on its own common sense and experience was seen in Cassidy v. Wellman International Limited (unreported Supreme Court, 13th October, 2001). Keane C.J. refused to fault the trial judge “for preferring the evidence of one expert engineer over an another where he finds the evidence of one engineer more closely according with the facts of human experience as he saw it.” On the criminal side reference is made to the ( The People) Director of Public Prosecutions v. McKenna in the Court of Criminal Appeal which appeared to be open to the proposition that a cautionary instruction in respect of such evidence might be appropriate with regard to covered memory. The Court should distinguish the recovery of a memory through a therapeutic process as alleged in this case as being distinct from a spontaneous recovery of memory as seen in Hickey v. McGowan [2004] IEHC 19. The Court is asked to note that the defendant is not in a position to procure additional information or submissions or evidence from Professor Kennedy and that the case is closed and that the Court has to have regard to the evidence presented during the trial. He did not have any regard to any new matters which might be introduced by either parties at this juncture and that any new matters are not in a position to be tried and tested by way of cross-examination in the usual manner and should not be accepted by the court at this juncture.
Findings of Facts and Conclusions
123. This Court accepts the plaintiff’s version of events and understands her evidence that the fear of causing a breakdown in family relations was a large part of her being prevented from disclosing the alleged abuse prior to the dates on which she disclosed the two incidents separately. Her motivation for doing so was that she was afraid that if she did not disclose the abuse and the same thing happened subsequently to other children she would feel to blame.
124. This Court found her evidence convincing both in relation to the internal inconsistency of her description of the two events one in 1994 and the other in 2002 both in her direct examination and under cross-examination. The plaintiff explained clearly that while she did attend therapy she did not undergo any therapy in relation to the aspect of recovering memory nor did her parents ever question her about sexual abuse of any nature prior to her disclosure to them.
125. This Court understands, as logical, her reason for explaining that after the 2002 incident she travelled to a bathroom on the landing of the house when she heard her sister and her brother downstairs rather than using an en suite in the room she was in. It is reasonable for the court to accept that she did so because of a sense of security when she heard siblings within earshot of that bathroom.
126. The evidence of her brother is convincing. He corroborates the second incident in 2008 and he was eight years old at that time. He says he was assaulted by a punch to the stomach by the defendant after that incident and told not to tell anyone and it is easy to understand how it only came to light when he was fourteen years of age and having school difficulties and was sitting his junior certificate examination. He decided to tell his parents at that point. This Court accepts his evidence in full.
127. In relation to the evidence of the defendant certain inconsistencies were put to him. Certain items of evidence were ruled out because he had never put certain matters in cross-examination to the plaintiff and to her brother. For example, he never put to her brother that the brother only went upstairs to sleep in that house regarding the 2002 incident. He had no response to that. It was also put to him that his evidence that he was surprised by the brother giving evidence was countered by the suggestion to him that he couldn’t have been surprised that the brother was on both witness’s schedules.
128. In relation to the defendant’s evidence that the plaintiff didn’t go upstairs on the afternoon of the Sunday in 2002 at his house, it was put to him that his own wife agreed that she did go upstairs and the reason for that.
129. The plaintiff’s brother was able to give evidence about the name of the particular computer game which he played on the occasion of that Sunday 2002 and clearly elate attempt by the defendant to say that there were specific work passwords to the computer is not accepted by this Court.
130. It was clear to this Court that in the wider family on both sides there is allegation and counter allegation in relation to allegations of sexual abuse. In that regard the plaintiff’s mother was offered as a witness of the Court if the Court required her to give evidence. It was the view of this Court that the Court must concentrate on the actual dispute as between the plaintiff and defendant and not be side tracked into other allegations which were not before this Court.
131. Dr Paul McQuaid gave evidence of his experience both as a forensic psychiatrist and as a child/adolescent psychiatrist with extensive experience and qualifications and he based his assessment on four separate mental health evaluations which took place over a nine-year period, between 2007 and 2016. His expert opinion was that the plaintiff suffered chronic Post-Traumatic Stress Disorder as a product of incestuous child abuse in addition to an associated anxiety disorder. Two of his reports are considered as evidence one on 27th June, 2017 and the second 27th September, 2017. This Court accepts the conclusions in these first two reports of Dr. McQuaid and his admission under cross-examination that currently the plaintiff does not suffer from symptoms of post-traumatic stress disorder. He says there is no debate about whether she was sexually abused as a teenager in 2002 and he also goes on to say in his evidence that the second alleged event would have significance of triggering a memory of what happened some seven or more years prior to that. He believed that it could have triggered the memory of earlier abuse and resulted in the earlier abuse coming back to the plaintiff in flashbacks as described by her. His conclusion was that this was in the mild to moderate range.
132. This Court notes the comments of Professor Kennedy Consultant Forensic Psychiatrist and noted that by contrast that he carried out one assessment and one report dated 13th October, 2010. This witness laid great stress on the accepted fact that there had been an incident concerning a fire in 1993 which he felt could have great significance in terms of the sequelae the plaintiff described. He approached this as a forensic psychiatrist and felt she didn’t have the quality essentially of symptoms to bring her within the post-traumatic stress disorder range.
133. The Court is mindful of the strong view of Professor Kennedy with regard to this case in that he felt there wasn’t enough background correlation in terms of material or other items to assist and essentially didn’t feel that the difficulties this plaintiff had were necessarily attributed to the events she described. This brought the court to ask a particular question which was, was there a middle way in terms of differing views on the theories of recovered memory. Given that the defendant was not in a position to furnish a further report from Professor Kennedy, the court decided not to consider the third report/addendum of Dr McQuaid so as to ensure fairness. It seems to this court however that the court has to accept that there can be a divergence of opinion between psychiatrists as to when they would or would not allow a diagnosis of Post-Traumatic Stress Disorder. It appears to be a question of degree in terms of symptomology. This Court preferred the evidence of Dr McQuaid very much based on his life’s work as a child and adolescent psychologist and his extensive interviews over a nine-year period with the plaintiff.
134. This Court had difficulty believing the defendant did not know that he could make a complaint for example to the Law Society to obtain his file from his private solicitor given that there was evidence that he had complained about Dr McQuaid in relation to this case to the medial council and had even written a letter to the junior counsel who acted for Dr McQuaid in that case who happened to be the same junior counsel who acted in the present case for the plaintiff. He had a legal aid certificate it was at the advice on proof stage where there was a junior and senior counsel engaged and yet he did not take the step of going to the Law Society to get his file. The plaintiff complained bitterly about the extraordinary delay in this case, it was extreme pressure and extra pressure for her. Great deal of the delay entirely lies at the foot of the defendant in the view of this Court. He agreed that from 2012 to 2014 he was seeking legal aid.
135. This Court accepts the particular nature of the particular assaults perpetrated on the plaintiff were of a quiet nature, the plaintiff was not physically beaten up as it were during either of these incidents. There was no noise to talk off.
136. There is no basis for the contention that the plaintiff lacks credibility or is unreliable in the view of this Court. She has not given false or misleading evidence to this Court. There is an internal consistency in her evidence and the evidence given by her brother.
137. This Court looks at this case from two angles in terms of quantum and notes the fact that Hickey v. McGowan & Ors. [2014] IEHC 19 is a case where the award itself was significantly reduced in the Supreme Court a 50% loading for reasons not at issue in this particular case. This Court takes the view that the trespass to the person of a child aged six by digital penetration and rape and the further assault on her when she was thirteen years in terms of an oral rape has to be viewed as a horrific experience for her. Her sequelae that she expressed, as accepted by the Court, is understandable in the light of such an experience. The fact that she experienced this on top of the situation where she was a nervous child in any event and had a significant fright in 1993 explains the range of difficulties she had subsequently which overhung her life for many years. She had to drop out of university for a year to get herself together and she felt that career wise she had a loss of opportunity significant for her.
138. This Court believes that its task is described not to establish the truth, necessarily, but to determine as best it can in the face of honestly yet conflicting evidence on the balance of probabilities what did occur.
139. A clear choice must be made as between the validity of the testimony one side or the other and the weight to be attached as between conflicting opinions, to any which seem to be correct. Reference is made to Best v. Wellcome Foundation Limited [1993] 3 I.R. 421, at 462, Finlay C.J.:-
“I am satisfied that it is not possible either for a judge of trial or for an appellate court to take upon itself the role of a determining scientific authority resolving disputes between distinguished scientists in any particular line of technical expertise. The function which a court can and must perform in the trial of a case in order to achieve a just result is to apply common sense and a careful understanding of the logic and likelihood of events to conflicting opinions and conflicting theories concerning a matter of this kind.”
And later in reference made to Charleton J. in James Elliot Construction Limited v. Irish Asphalt Limited voted with approval a passage from the judgment of Stewart-Smyth L.J. in Loveday v. Renton [1989] 1 MED LR 117 as follows:-
“The court has to evaluate on the soundness of his opinion. Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by the evidence. The judge also has to decide what weight to attach to a witness’s opinion by examining the internal consistency and logic of his evidence, the care with which he has considered the subject and presented his evidence; his precision and accuracy of thought as demonstrated by his answers; how he responds to searching and informed cross-examination and in particular the extent to which an witness faces up to and accepts the logic of a proposition put in cross-examination or is prepared to concede points that are seen to be correct and the extent to which a witness has conceived an opinion and is reluctant to examine it in the light of other evidence, or demonstrates a flexibility of mind which may involve changing or modifying opinions previously held; whether or not a witness is biased or lacks independence… there is one further aspect of a witness’s evidence that is often important; that is his demeanor in the witness box.”
And further on p. 6 of this judgment:-
“The burden applicable in a civil case was described by Denning J. in this way:- ‘That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not”
140. This Court has considered the authority of Hickey v. McGowan & Ors . [2014] IEHC 19, at para. 10, p. 5 of this judgment O’Neill J. sets out that a striking feature of the case to which much attention was given was the plaintiff’s memory of sexual abuse perpetrated upon him by the second named defendant. The judge in that case was quite satisfied that the plaintiff had no memory of the abuse perpetrated upon him and a Gardaí investigation commenced many, many years after the events and he was also satisfied that he was not given any introductory materials such as the statements of other witnesses nor any résumé or account of that evidence or the state of the Gardaí investigation which might have informed him or prompted him in any way. When he was asked to describe daily life in the class room of the particular school in question where the alleged abuse had occurred, the plaintiff spontaneously began to remember what had happened to him over a three-year period and he was able to recount that abuse in the statement he then gave to the Gardaí at the time. This was a “spontaneous recalling, without any therapeutic or other process, of memories which had been suppressed or blocked out by the plaintiff, by this time, for about thirty years.” Even during counselling not a glimmer of this memory had occurred, eventually after recovering his memory he described it as “misty”, but in that case as time went on it solidified as he gained confidence in his memory. In that particular case there was corroboration of his memory from other sources, namely his fellow students. In that case O’Neill J. (as he then was) concluded:-
“that the plaintiff, as a result of this sexual abuse, suffered a severe Post-Traumatic Stress Disorder characterised, initially by extreme avoidance to the point that for almost thirty years, he totally blocked out any memory of these events. Having elicited these memories late in 1999, for a number of years thereafter, he suffered the more typical symptoms of Post-Traumatic Stress Disorder.”
141. The judge felt that for thirty years almost the plaintiff had entirely blocked this out of his memory and he felt that the illustrated that how deeply that abuse was for him. He was also satisfied that at a subconscious level these matters did affect him and impact on his life. This Court notes that the Supreme Court reduced the award in this case and made findings on another aspect of the case, not relevant to this case.
142. In the instant case reference is made that the plaintiff’s battle physically and mentally within an array of issues which she alleges stemmed from the alleged abuse including but not limited to:
Stress,
Anxiety,
Panic Attacks,
Irritability,
Persistent tiredness,
Flashbacks,
Migraines,
Throat infections,
Kidney infections,
Dyspareunia,
Abdominal pains,
Stomach problems,
Bowel problems,
Heart palpitations,
Suicidal thoughts,
Self-harm.
143. This Court finds that there is no doubt in the mind of the court that the second allegations by the plaintiff in relation to one event, which she says happened in 2002, did in fact occur. Her brother gave evidence and corroborated the plaintiff’s evidence with reference to what he saw at the time of this event. Both doctors agree that the plaintiff suffered from anxiety and depression, they disagreed on whether she ever suffered from Post-Traumatic Stress Disorder or not.
144. The Court is left therefore with two exceptionally strong views: conflicting theories between two very eminent psychiatrists in relation to this case. Before the court embarks on attempting to resolve the significant disagreement between the psychiatrists the following is worthy of notes: the court has considered the decision of Peart J. in Clayton v. Cashman [2006] IEHC 360. P. 30 of that judgment shows how the Court has approached the task deciding on the balance of probabilities what happened or did not happen. The court’s task is described as not to establish the truth, but to determine as best it can in the face of honestly, yet conflicting evidence on the balance of probabilities, what occurred.
145. This Court finds that there is no doubt in the mind of the Court that the second allegations by the plaintiff in relation to one event, which she says happened in 2002, did in fact occur. Her brother gave evidence and corroborated the plaintiff’s evidence with reference to what he saw at the time of this event. Both doctors agree that the plaintiff suffered from anxiety and depression, they disagreed on whether she ever suffered from post-traumatic stress disorder or not. This Court accepts that the plaintiff had recovered memory, triggered by the events in 2002 re the 1994 events which this Court finds did occur.
146. The defendant’s present wife described a series of events save of course for the actual allegation concerned, of the pattern of the weekend in 2002. She did not agree with everything that the plaintiff has said but the pattern was there and was consistent. The said witness agreed that the details of the 2002 weekend, although denying abuse or assault.
147. This Court observed, carefully, the plaintiff gave the impression over the course of the trial of being really afraid of coming into direct proximity in the court room or contact with the defendant. She appeared heightened, tearful and frightened and it appeared to this Court to be an extraordinary ordeal for the plaintiff to give her evidence. Her brother likewise was quite frightened at giving his evidence and at one stage began to cry.
148. Dr McQuaid in his second report dated 12th July, 2016, concluded that this witness suffered from chronic post-traumatic stress disorder as a product of incestuous child sexual abuse and associated anxiety disorder which was ameliorating and in his evidence he then clarified this by saying that presently she does not suffer from chronic Post-Traumatic Stress Disorder as described. It is a similar diagnosis to that made by him in 2008, in the conclusion portion of his first report. Even if Dr McQuaid, is not correct, it is quite clear from the evidence that the plaintiff suffered increased pressure during her childhood and adolescence as a result of the events in question having occurred. She was at the age of seven and a half found to be nervous child. Professor Kennedy says this could well have been attributable to a fear of fires, in relation to a traumatic event in 1993. In trying to assess this further this Court observed carefully the demeanour of this witness over many days of trial. One thing is certain, that while she is an organised and logical person, she gave the impression of being really afraid of coming into contact or direct proximity in the courtroom with the defendant. She appeared heightened, tearful and frightened and I do not doubt that it was an extraordinary ordeal for her to give this evidence. Her brother was quite frightened in giving his evidence, and at one stage began to cry.
149. On the basis of the foregoing, this Court finds that, on the balance of probabilities, the plaintiff suffered an incident of sexual assault in the form of oral rape in 2002 and had a recovered memory triggered by flashes of an earlier incident in 1994, which involved digital penetration and rape by the defendant who is found to lack credibility and as a result of these two incidents, perpetrated by the defendant, the plaintiff suffered severe personal injuries loss and damage as alleged. These were extremely serious and had horrific consequences for her, overhanging her life, and posing real difficulties for her attempts to live and achieve a normal life. The plaintiff explained her difficulty in disclosing the earlier abuse even though she disclosed as a separate incident against a separate individual which occurred in 1996 on the basis that she was closer to the defendant than she was to the other relative and that made it even harder. This Court accepts her evidence on this point also. This Court awards €200,000 to the plaintiff as against the defendant in respect of these.
Connellan v Saint Joseph’s Kilkenny & Ors
Abuse & Ill Treatment
[2006] IEHC 119 (21 March 2006)
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 21st day of March, 2006
The plaintiff in this case, David Connellan, comes to court seeking damages by way of compensation for alleged personal injury, loss, damage and expense suffered by him a result of treatment to which he was subjected while a resident in the first named defendant’s orphanage at Kilkenny in the County of Kilkenny. In this regard, in a statement of claim delivered herein on the 3rd day of March, 1998, the plaintiff alleges that, during the course of his detention at the said orphanage, he was repeatedly assaulted, abused and ill treated by employees of the defendants and, in particulars included in the said statement of claim, the nature of the alleged assaults, abuse and ill treatment was identified as are the employees of the defendants who are alleged to have committed that wrongdoing. Those employees are named in the statement of claim as Therese Connolly, David Murray and Breffney O’Rourke. While a full defence was delivered on behalf of the defendants in which (inter alia) it was claimed that the plaintiff’s claim herein is statute barred by virtue of the provisions of the Statute of Limitations 1957, as amended, when the case commenced before me on Friday, 2nd December, 2005, I was advised by counsel for the plaintiff that liability had been fully conceded on behalf of all the defendants and that the case would proceed before me as an assessment of damages only. However, in the course of the plaintiff’s evidence, counsel for the defendants complained that, while the defendants had conceded liability in the case, they had done so in the light of the allegations contained in the statement of claim delivered on behalf of the plaintiff on the 3rd day of March, 1998 and, specifically, in the light of the particulars which were included in that statement of claim; no further particulars of the plaintiff’s claim having been delivered on his behalf. However, counsel submitted that, in the course of his testimony, the plaintiff had given evidence with regard to six areas of alleged assault and abuse, which were not included in the particulars contained in the statement of claim and, of which, the defendants had no notice. Accordingly, counsel for the defence submitted that the defendants were not in a position to meet the case which was presented on the plaintiff’s evidence in the witness box. In this regard, counsel for the defence identified the matters in respect of which the plaintiff had given evidence but which were not included in the statement of claim as follows:
(1) that a person called Sally Hogan physically beat the plaintiff,
(2) that Therese Connolly falsely imprisoned the plaintiff in a cupboard,
(3) that David Murray attempted sexual abuse of the plaintiff on three occasions,
(4) that Breffney O’Rourke physically beat the plaintiff on 20 occasions,
(5) that the plaintiff was physically abused by boys in Beech Park and
(6) that the plaintiff was racially abused in the CBS, Kilkenny.
While conceding that the matters complained of by counsel for the defendants were not included in the particulars in the statement of claim delivered herein, counsel for the plaintiff submitted that they could not have taken the defence by surprise given that they were included in medical reports on the plaintiff submitted by Dr. James Morrison, a consultant psychiatrist; reports which had been furnished to the defence and given that David Murray was tried and convicted for sexually abusing the plaintiff. In this connection, however, I had the opportunity of reading Dr. Morrison’s reports and, while there is reference in them to Sally Hogan, there is no suggestion that she physically beat the plaintiff and neither is there any suggestion that, included in the ill treatment to which the plaintiff was subjected by Therese Connolly, was the fact that she imprisoned him in a cupboard nor, indeed, does Dr. Morrison say that the plaintiff told him that he had been sexually abused by David Murray. Counsel for the plaintiff did suggest that a Dr. Blennerhassett, who had examined the plaintiff on behalf of the defence, had been told by the plaintiff about sexual advances made to him by David Murray and I accept that to be so. However, I was never furnished with Dr. Blennerhassett’s report.
While my instincts were to allow the trial to proceed notwithstanding the inadequacy of the particulars furnished on behalf of the plaintiff, viewed in the light of the plaintiff’s evidence, I was concerned that the Supreme Court might not agree with me and that the plaintiff might be faced with a retrial which would not be in his best interests. I voiced that concern as a result of which the parties sought a short adjournment to obtain instructions following which it was agreed that I should adjourn the hearing to enable the plaintiff to deliver further particulars of his claim. This was done by notice dated the 9th day of January, 2006 and the trial resumed on the 28th day of February, 2006. On that occasion, counsel for the defence indicated that liability was in issue with regard to matters contained in the particulars dated 9th January, 2006, which were additional to those contained in the statement of claim delivered on 3rd March, 1998 and, moreover, that the defence contended that the plaintiff’s claim in respect of those additional matters was statute barred.
THE EVIDENCE
The circumstances giving rise to the plaintiff’s claim, as given in evidence by the plaintiff, are as follows:
The plaintiff was born in Saint Marylebone, England, on the 2nd day of June, 1960. His mother was an unmarried lady who had been working as a hairdresser in the city of Dublin where she met his father, a native of Uganda, who was then in Dublin studying for a doctorate, the nature of which the plaintiff is unaware. Following his birth, although she, herself, was a native of the Co. Roscommon, the plaintiff’s mother placed him in the care of an institution known as Saint Patrick’s Orphanage situate on the Kells Road, Kilkenny in the Co. Kilkenny, which I believe is a sub-institution of the first named defendant. The plaintiff was then only three weeks old. He had no further contact with his mother until some nine years ago when he succeeded in locating her. However, when he met her, while she did not deny that she was his mother, she made it quite clear that she wished to have nothing to do with him because she was then married with a family and expressed the belief that, had her husband learnt that she had had relations with a coloured man, he would divorce her. Since then, the plaintiff has had no further contact with his mother. Moreover, although he has attempted to locate him, he has been unable to make contact with his father. In that regard, the plaintiff has learnt that his father did visit him, once or twice, while he was an inmate at the Saint Patrick’s Orphanage but that, if he did, on those occasions the plaintiff was fearful of his father because, apparently, as the plaintiff said, he was “a jet black man”. Naturally, the father was upset when it appeared that his child was afraid of him with the result that he ceased to visit him.
David Connellan said that his early memories of Saint Patrick’s Orphanage are very happy ones. He said that the nuns took very good care of him and, as far as he could recall, he was a very happy child there. He said that he started his schooling in first class at Saint Patrick’s. However, in September, 1966, when he was about six and a half years of age, he was transferred to Saint Joseph’s which was a residential institution and, at which, the plaintiff also attended school. Apparently, Saint Joseph’s was originally intended as a girls’ school but, at the time, 20 or 30 boys were transferred there and a play hall was transformed into a dormitory for them. Mr. Connellan told me that he was one of three coloured boys who were in the institution at the time. He also told me that, when he went to Saint Joseph’s, his life changed and he described the change as a very frightening one. As he said “it was like a dark cloud came down on me”. He said that the boys were cared for and under the complete control of two ladies; a Theresa Connolly, who Mr. Connellan said would have been between 18 and 20 years of age and a Sally Hogan, who Mr. Connellan described as an older person aged between 28 and 30 years. He said that both Theresa Connolly and Sally Hogan became very violent towards him; that, when the boys were put to bed at night, they were required to have their heads under the covers and the two ladies would walk up and down the aisles between the beds and, if a boy did not have his head under the cover, he was beaten. He says that, once the boys went to bed, they were not allowed to move; not even to go to the bathroom and that, if they did, they were beaten by the ladies with their fists. As a result, the plaintiff says that he became nervous and started to wet the bed; something that he had not done when he was in Saint Patrick’s. And if that was not enough, with the passage of time, he said that Theresa Connolly singled him out to perform sexual acts on her. In that regard, he said that he was singled out from the other boys and brought by Theresa Connolly to her bedroom (a cubicle in the boys’ dormitory) where she would make him perform sexual acts on her, orally and physically, and, as he said “sickenly”. In that regard, he said that she would try to make him have sex with her, that she asked him to urinate inside her and to orally touch her in her genital area and that if he refused to do so, she would beat him. Indeed, he said that there were times when he could not bring himself do what she required of him and began to cry and, when he did, as he said “she literally just beat the shit out of me”. She would also taunt him and taught him to sing a song “I am Nobody’s Child” and she instilled in him that he was totally under her control, that she could do whatever she wanted to do with him and that he was not to tell anybody because, if he did, he would be beaten. As a result of all this, the plaintiff said that his bed wetting got worse. In that regard, it would appear from the plaintiff’s evidence that what precipitated his bed wetting was fear of the dormitory in which he slept because, to get to the toilet, he had to walk down a very long dark corridor and, at the time, there was a fire bug roaming around Kilkenny lighting fires here and there and, on one occasion, he had gained access to the boys’ dormitory and lit a fire there. Mr. Connellan said that, after he had started wetting the bed, Theresa Connolly had brought him to the toilet on one or two occasions and he thought that it was good of her to do so. However, it then happened, that, after she had brought him to the toilet and was bringing him back to his bed, she used to bring him to her room and make him perform sexual acts on her. Eventually, she stopped bringing him to the toilet and just brought him to her room and, as I said, his bed wetting got worse and, in the morning, Theresa Connolly would drag him out of bed, tell him to take off his pyjamas, stick his head face first into the wet bed and then beat him with the handle of a brush. He said that she beat his backside until it was red, red raw and extremely painful and, at the same time, she called him a black this and a black that and, not only that he was no good, but that he was worse than that. He said that this was done in the presence of the other boys. When asked what exactly Theresa Connolly had said to him, he said that she called him a black bastard and a golliwog and said that he was filthy dirty for wetting the bed. He said that she brought him to her bedroom, or cubicle, many, many times to perform sexual acts on her and that there was no one to whom he could complain. In that regard, Mr. Connellan was asked whether or not he ever had visitors and he said that he rarely had them although, occasionally, local people would take him out on a Sunday or during a holiday period. Although his bed wetting habit put people off taking him into their homes during holidays. He said that the people who took him out were not necessarily parents of school friends but were just local good people who wanted to do nice things. He said that he took drastic steps such as tying laces on his penis to try and stop wetting the bed.
David Connellan said that the abuse, both physical and sexual, at the hands of Theresa Connolly lasted for about three years. He said that it was very, very frequent and very, very hard to live with. He said that there were times when he could not go to school because of a rash on his legs and his backside due to the fact that Theresa Connolly would not change his sheets or pyjamas and beat him regularly. She also punished him by not permitting him to wash himself before he went to school. He said that, on one occasion, Sister Conception; the school manager, brought him to see a Dr. Hindle and although the doctor asked him why he was wetting the bed, he was afraid to tell him; he just said that he did not know. He said that, had he told the doctor about the abuse to which he was being subjected, he believed that it would have got back to Theresa Connolly and that she would give a different version of events and would be believed. In that regard, he said that, although Sister Conception was a lovely person, she, unfortunately, believed everything that she was told by the staff. Insofar as Sally Hogan is concerned, Mr. Connellan said that she did not sexually abuse him but that she beat him severely on days upon which Theresa Connolly would be off. He said that Sally Hogan also pressed his head into the wet bed. He said that Sally Hogan had been at Saint Joseph’s for more or less all of the same amount of time as Therese Connolly had been there and that she, also, made very racist remarks towards him (inter alia) calling him “black baby”. He said that he got on fairly well with the other boys although, from time to time, they teased him and would make racist remarks about him. When asked whether or not Theresa Connolly was ever affectionate towards him, he said that she was but only in front of Sister Conception. He said that he was always behind with his school work but that nobody ever asked him why and that, when the health inspectors came to the school, they talked to the teachers and the carers but never to the boys.
David Connellan said that, in the year 1971, when he was 11 years of age he was taken from Saint Joseph’s and moved to a place called Beech Park which was another part of the Saint Joseph’s complex. This comprised two houses; one a three bedroom house and the other a four bedroomed house. There were about eight people; boys and girls, in each house and the plaintiff remained at Beech Park for approximately two years. He said that he got on ok when he was there but that as a result of the abusive experiences he had had at Saint Joseph’s, he was emotionally damaged and had no confidence. He said that, when he was in Beech Park, he was looked after by a Sister Frances and two sisters named Buckley. He said that he had no further contact with Theresa Connolly or Sally Hogan. He said that, when he was at Beech Park, he played a little soccer and that, from time to time, a team from Beech Park would go to Clonmel to play matches against boys in an industrial school there. He said that that was a very strange place but that he could not explain why. He said that it was like a concentration camp in which everyone was forcibly happy.
The plaintiff said that, during his period in Beech Park, he was not subjected to any physical or sexual abuse. However, he said that the bed wetting continued and that he was frequently subjected to racist remarks by both staff and other children. He conceded that, when, on occasions, he was the subject of a racist remark from another boy in the presence of a member of staff, that member of staff might say “stop that” but that was all. He said that the two other coloured boys in Beech Park were subjected to similar racist remarks. However, he said that they were never as bad as what Theresa Connelly used to say to him; the memory of which has never faded. He said that the bed wetting continued but that punishment was limited to being deprived of little treats but that nothing was done to try and solve the problem. He conceded, however, that, from time to time, Sister Frances used to take him to the toilet in the middle of the night and, when that happened, he did not wet the bed.
In 1973, Mr. Connellan said that he was transferred to another place called Summerhill, which was also part of the Saint Joseph’s complex. When residing in Summerhill, Mr. Connellan attended the CBS secondary school in Kilkenny. In Summerhill, Mr. Connellan was, initially, under the care of a man named David Murray, who had an assistant named Rita Quirke. There were about 20/25 boys there including the two other coloured boys who had been in Beech Park with the plaintiff. Mr. Connellan described Mr. Murray as a “monster” and said that Rita Quirke was also a tyrant. He said that, initially, David Murray was ok; that he was very enthusiastic about involving the boys in sport and seemed to be interested in them. However, he was a very violent man. He said that, on several occasions, David Murray tried to have physical sexual contact with him like putting him on his knee while he was watching television and touching his genitals. However, Mr. Connellan said that he prevented him from doing so. He said that he also beat him frequently with his fists to the extent that he would be bruised, bleeding and even semi-conscious. He said that such beatings were administered for the smallest of things; for example, even if he was only three minutes late coming home from school. Moreover, it was a rule at Summerhill that, when in the house, one was obliged to wear slippers and when, on occasions, the plaintiff forgot to do so, he was severely beaten by Mr. Murray. In addition, Mr. Murray used to drag him into a cubby hole in which sweeping brushes were kept and verbally abuse him calling him a black this and a black that. The plaintiff said that he would have got serious beatings from David Murray on about six occasions in each of the three years during which he was under Mr. Murray’s control. When asked whether or not he ever actually lost consciousness as a result of such a beating, the plaintiff said that he probably did. He also said that punishments meted out by Mr. Murray included being sent to bed without tea and not being permitted to watch television. He said that it was only on two or three occasions that Mr. Murray attempted to touch him indecently and that, on each occasion, he had beaten him off. He said that, when he was in Summerhill, he continued to wet the bed and was subjected to jeering on that account by both Mr. Murray and the other boys. Moreover, when he wet the bed, Mr. Murray would punish him by making him feel that he was not wanted and by prohibiting him from participating in games. When asked whether or not he ever hit Mr. Murray back, Mr. Connellan said that he did. He also said that Mr. Connellan had a dog named Thunder; an Alsatian German sheep dog, and that, from time to time, he would bring the plaintiff to his room where he would ask him all kinds of sexual questions and tape-record the answers and where he would threaten the plaintiff with the dog; commanding the dog to eat the plaintiff. The plaintiff said that, on some of those occasions, he would break down crying but, although the dog was known to have bitten other boys, it never bit him. The plaintiff said that these incidents would have occurred about three or four times while he was under Mr. Murray’s control, which would have been for about four years. He said that Mr. Murray left Saint Joseph’s suddenly and that he was replaced by a man named Breffney O’Rourke. The plaintiff said that he was about 15½ or 16 years of age at that time and that he was then attending a school at Ballyhale having been expelled from the CBS. In that regard, Mr. Connellan said that he was the only coloured boy in the CBS and that, while he was there, he could not learn very much because, as he said, “there was just too much in my head”. He said that there was name calling and abuse from his peers and that his teachers were not fond of him because he was way behind everyone else in his schooling. However, they never asked him whether or not he had any problems and he believed that they assumed that he was just someone who just did not want to learn; a view which Mr. Connellan emphatically denied. He said that, when he was at the CBS, he did the Group Certificate which he failed miserably and then he was expelled from the CBS. He said that he was very upset at having failed the Group Certificate. When asked why he had been expelled from the CBS, Mr. Connellan said that he had had a confrontation with a Mr. Glennon, who was the headmaster, that Mr. Glennon produced a leather strap, or belt, and went to hit him with it but, before he could do so, he (the plaintiff) hit Mr. Glennon and as a result, was expelled. Mr. Connellan said that, on that occasion, he had been referred to Mr. Glennon by his teacher, Mr. Curran, who was of the belief that Mr. Connellan was not working at school and that Mr. Glennon had asked him why he was not working and when Mr. Connellan replied that he didn’t know, Mr. Connellan indicated that he thought that he was lying and there followed the event which Mr. Connellan said had led to his expulsion. In that regard, Mr. Connellan conceded that he had been ignoring the whole education system at the CBS because he had no respect for the teachers, or the system, given that, when he was subjected to racial abuse like being called golliwog, or nigger, in front of the teachers, they did nothing about it. The plaintiff said that, during the summer following his expulsion from the CBS secondary school, he got a job in a garage with a Mr. Ciaran Ryan.
After he left the CBS secondary school, the plaintiff was placed in Ballyhale technical school which is located about 15 miles from Saint Joseph’s on the Waterford Road. He said that, when going to that school, he would be put out on the road at about 8 o’clock in the morning; hail, rain, sleet or snow, and was required to thumb his way to the Ballyhale School and to thumb home again in the evening. He said that he was given no food nor any lunch money and had to do without food all day. In that regard, he said that it was sometimes 6.30 in the evening before he got back home. Moreover, he said that the Ballyhale technical school was worse than the CBS in Kilkenny from a racist point of view, in that, the boys in that school were from a farming community and would not have been familiar with coloured people and that they could not come to terms with him. He said that he was the only coloured person in the school and he was called all sorts of names by the boys; particularly, when he was playing soccer. Moreover, although the teachers were present on those occasions, they never did or said anything about it. Furthermore, during the period that he attended Ballyhale Technical School, he was beaten up several times by the other boys and, again, although members of the staff were aware of what was happening, they did nothing about it.
Mr. Connellan said that, when David Murray left Summerhill he was succeeded by Breffney O’Rourke who he said was a perverted looking violent person who “ruled with his fists”. He said that, as far as he knew, Mr. O’Rourke was studying for the priesthood. He said that, on one occasion, Mr. O’Rourke tried to get into his bed and to have sex with him but that he stopped him doing so. On another day, he had been cleaning windows in Summerhill and, as he was descending from the ladder, Mr. O’Rourke came over and touched him on his genitals outside of his clothes. The plaintiff also said that Mr. O’Rourke beat him severely on several occasions both with his fists and with a heavy book. He also hit him with a chair and a sweeping brush. He estimated that in a five month period, he would have been beaten about 20 times by Breffney O’Rourke.
David Connellan said that he left Saint Josephs at 16 years of age when he was offered a job by a Mr. Ciaran Ryan, who had a garage in Kilkenny. Mr. Ryan was a man for whom he had worked during the previous summer holidays. He described Mr. Ryan as a nice, good man who thought that he (the plaintiff) was a good worker and who realised that he was not making much progress at school. He said that Mr. Ryan was involved in panel beating and crash repairs and that, after working with him for about ten months, Mr. Ryan offered him an apprenticeship. He said that, when he had left Summerhill, Sister Conception had arranged digs for him in Kilkenny city. When asked who was paying for the digs, he said that he made a contribution but only a small one because he was not earning very much at the time and that it was Sister Conception who paid most of it. He said that, at that stage, he was still wetting the bed and it was very embarrassing for him. In that regard, he said that he washed his own clothes after he had wet the bed. He said that he completed a five year apprenticeship with Ciaran Ryan during which he had a very good relationship with Mr. Ryan. During his apprenticeship, he met a young lady named Susan with whom he formed a relationship as a result of which she became pregnant and they were married in the year 1978. In that regard, he said that he had problems with Susan’s family arising from the fact that he was coloured and had come from an industrial school. He said that Susan worked in Winston’s and that they got a flat together. In that regard, he said that Sister Conception had helped them to purchase furniture for the flat. Indeed, he expressed great gratitude to Sister Conception for all the help that she had given to him after he had left Saint Josephs. As he said “she is probably one of the best people who have ever walked the earth”. He said that her only fault was that she was gullible in the sense that she believed what people employed by her were telling her and, accordingly, Mr. Connellan never told her about the things that had happened to him. As he said “Sister Conception would not have understood”. Mr. Connellan said that his first child was born in January, 1979 and, by that stage, he had stopped wetting the bed. He said that he had done so while he was going out with Susan; probably because he no longer felt alone. At that stage, Mr. Connellan recalled that his bed wetting was associated with an awful fear of the dark arising from a time that he had been locked in cubby holes by Therese Connolly as one of the punishments for wetting the bed. He thought that that would have happened between ten and twenty times while he was under her control and that, when it did happen, he would be locked in the cubby hole for an entire night in wet pyjamas. He said that, ever after that, he had nightmares about it.
David Connellan said that he was married to Susan for 22 years and that, while it was not the best marriage, they shared a great love for their children. However, he said that, when he was going out with Susan and when they were first married, he did not reveal the history of what had happened to him at Saint Joseph’s because he found it too embarrassing to do so. Neither did he have any close friends with whom he could confide although he agreed that, because he was fairly good at soccer and was not a bad singer, he had some white friends. However, he found it hard to make friends. He said that, about 1981, Susan and he got a house from the local authority, that their second child, David was born in 1983 and that, in the same year, he left Ciaran Ryan and went to work with a company named Harrison who had a big truck centre. That work involved panel beating and spray painting and, indeed, all aspects of repairing crash damage but no mechanics. He said that, in or about that time, he was subjected to a lot of racism and memories of his past started to intrude. In that regard, Mr. Connellan said that, when he was employed with Harrison’s, he realised that every employer was not as kind or understanding towards him as Ciaran Ryan had been. He said that he only stayed with Harrison’s for less than a year, was unemployed for a while and then got work doing odd jobs in Hotel Kilkenny. After that, he went back working for Ciaran Ryan but, apparently, the motor trade was not very busy at that time. Moreover, he was going through a bad phase with alcohol and was experiencing a lot more racism. Moreover, he felt that his lack of education was holding him back and he did not have the confidence that he felt that he should have. He put all this down to the experiences which he had had in Saint Josephs. As he said the six or seven years that I was there were “very, very, very hard. They robbed me of all confidence that I should have had”. He said that, in 1987, he went to England for a brief period because his drinking at that time was not helping domestic relationships. However, although he said that he was very upset and very down, he did not seek medical help. He only stayed in England for about three months and, when he returned, he got part time work in the Hotel Kilkenny because he could not get work in his own trade. Then he did get a job with Quinn Motors in Kilkenny with whom he worked for about a year. He said that, at that time, he could not control his drinking. After that, he got work a job with a firm named Coach Craft in Clondalkin but, unfortunately, that company went into receivership and he lost the job. He then acquired a PSV licence and started driving for taxi companies. That would have been about 1994. At the same time, he had a little workshop at home in which he did some panel beating. Over the years, he built up his own taxi business and eventually had three cars on the road. However, a number of men working for him were involved in crashes as a result of which his insurance was increased to a prohibitive level so that, in the year 2004, he was forced out of the taxi business. Since then, he has been running a mobile panel beating business on his own behalf. When asked how life had been for him during those years, he said that he was just getting by, that he was drinking a lot and he thought that he could have been doing better “if my head had been ok”, and “if I didn’t have the heavy burden of what I had experienced in my youth and if I had a proper education”. In that regard, he pointed out that administration is a very important factor in running a business and that he lacked experience and knowledge of keeping books. He also adverted to the fact that he had a very difficult period when his son, David, passed away as a result of suicide in the year 2000.
Insofar as his current business activities are concerned, Mr. Connellan said that he had provided himself with a van and equipment, that he did not employ anyone else and, as he put it, that things were “going ok” but that he found it very hard to concentrate while, as he put it, “this is going on” which I interpreted as meaning these proceedings. He said that he separated from his wife, Susan, in the year 2000, that she has her own house in Kilkenny and, as he put it, “I re-mortgaged the house and bought my wife out”. He said that his son, Rory, is working in the Bank of Ireland and his daughter, Áine, is going to the Waterford Regional Technical College and that, finally, he had decided to seek medical assistance through his general practitioner, Dr. O’Gorman. He said that she had prescribed anti-depressant medication for him and that he is very relaxed when talking to her. He said that he had tried counselling but that he did not find it very helpful. Indeed, he said that the best counselling that he had had in his life was from his children. He said that his general practitioner had referred him for psychiatric assessment by Dr. Mary McInerney, a consultant psychiatrist, and that he had seen her on two occasions. David Connellan completed his examination in chief by saying that he was not qualified to do anything other than what he is currently doing but that he thought that he was capable of doing more and, in that regard, he hoped to go back to college when these proceedings were resolved.
Under cross examination, Mr. Connellan agreed that, given that his mother did not want to have anything to do with him when he met her some nine or ten years ago, he had been effectively on his own from the time that he was six weeks old. He agreed that he had been happy when he was in Saint Patrick’s and that his problems had started when he was moved to Saint Joseph’s in September, 1966 and came under the control of Therese Connolly. He agreed that he would have been under her control for about three years and that he then was transferred to Beech Park where he spent a two year period; initially under the care of David Murray and latterly under the care of Breffney O’Rourke. He said that, among other things, when he was in Saint Joseph’s, he was subjected to racial abuse from Therese Connolly, from Sally Hogan and from the other children who were there. However, he also agreed that he was subjected to racial abuse when he was at the CBS secondary school in Kilkenny and the technical school at Ballyhale and he agreed that his wife’s family had reservations about him because of his colour. He also agreed that, when he moved from Ciaran Ryan to Harrison’s, he experienced racial prejudice. In fact, he agreed that it was something that he experienced throughout his life in this country and was not just something that happened at Saint Joseph’s.
With regard to his allegation that Therese Connolly had locked him in cubby holes on ten or twenty occasions when he had wet the bed, it was put to Mr. Connellan that he never mentioned that fact in a statement which he made to the guards, his response was that the guards were only interested in sexual harassment; not in anything else. He was then asked about the allegations which he made about the woman that he called Sally Hogan and he agreed that she looked a lot older than Therese Connolly; that she would have been about 28 or 30 years. When it was suggested to him that nobody called Sally Hogan ever worked at Saint Joseph’s, his response was that he would prove that Sally Hogan worked there. It was then suggested to him that there was a person called Sally Nolan at Saint Josephs and it was suggested that he might have been confusing her with a Sally Hogan. He said that he always thought that her name was Sally Hogan but that it could have been Sally Nolan. It was then pointed out to him that Sally Nolan would have been 16 or 17 years of age in 1967 rather than 28 or 30 years of age, as he had suggested that the Sally Hogan was, and it was also put to him that Sally Nolan had no involvement with the boys as he had suggested that Sally Hogan had. Furthermore, it was suggested that Sally Nolan was not at Saint Joseph’s while he (Mr. Connellan) was there. The plaintiff’s response was “it had to be Sally Nolan, it had to be”. It was also put to him that Sally Nolan’s only involvement outside the nursery was to help Therese Connolly with a sing song, that she had no role as a supervisor of the boys and did not take over from Therese Connolly on her days off. Mr. Connellan’s response was “we will see when I see her then”. He added that he had not seen her for a long time “but when I do see her I will recognise her. If I am wrong I am wrong but I do not think I am”. He said that he might have been wrong on the name but not wrong on the person. He added that the Sally was also responsible for racial taunts against him.
Under further cross examination, Mr. Connellan agreed that he had said that David Murray had beaten him six times a year for nearly three years. He also said that, on three occasions, Mr. Murray had attempted to touch him indecently but it was suggested to him that that was not mentioned in his statement to the guards and he replied that that was because the gardaí were not interested in hearing what could have happened or what might have happened. In that regard, he said that the fact that he had not mentioned to the gardaí that Breffney O’Rourke had beaten him was because they were not interested in physical abuse but only in sexual abuse.
Mr. Connellan agreed that, when he was at CBS in Kilkenny, he was called racial names and, although the teachers there witnessed it, they did nothing about it. It was also put to him that he had said that, while he was at the CBS in Kilkenny, he had failed his Group Certificate, that, on one occasion, Mr. Glennon had produced a belt to hit him to with to which he responded by hitting Mr. Glennon and, as a result, he had been expelled. Mr. Connellan agreed that he had said all that. It was then put to Mr. Connellan that he did not sit for the Group Certificate at the CBS in Kilkenny for the simple reason the Group Certificate was something which was peculiar to vocational systems, such as the technical school at Ballyhale, whereas, in a secondary school like the CBS, the pupils sat for the Intermediate Certificate examination. Mr. Connellan’s response was “I know I did an exam in the summer that I left and I failed it”. He added that he did not leave the CBS; that he was asked to leave. He further denied that he passed the group certificate when he was at the Ballyhale technical school although it was put to him that the records indicated that he had, in fact, passed the Group Certificate when in Ballyhale. His response was that he never actually received a Group Certificate and that he was never notified that he had passed it. In that regard, it was suggested to him that, perhaps, he had left Ballyhale when the results came out and was then working with Mr. Ryan in Kilkenny and sleeping in digs which Sister Conception had helped to pay for. In any event, it was suggested to Mr. Connellan that the loss of education of which he complained was not attributable to his failure in the Group Certificate examination or, indeed, that he had been expelled from the CBS in Kilkenny to which Mr. Connellan responded that his loss of education started when he went to Saint Joseph’s. It was further put to Mr. Connellan that he had not been expelled from the CBS in Kilkenny, that Mr. Glennon had not produced a belt to him and that he had not hit Mr. Glennon. Mr. Connellan’s response was “it did happen”. When asked how he had been made aware of the fact that he had been expelled, he said that Mr. Glennon told him so outside his classroom and that Saint Joseph’s were notified that he was not to return to the CBS. It was then put to him that Mr. Curran and Mr. Glennon in the CBS did not stand idly by and witness him being racially abused to which Mr. Connellan responded that they were bound to say that because he was the only Afro-Celt in the CBS. In that regard, he denied that there was another coloured boy in the school although it was suggested to him that there had been.
Under further cross examination, the plaintiff agreed that the period during which he was working for Ciaran Ryan was a happy one that, during that period, he learnt a trade and was in steady employment for five years. He also agreed the history of his subsequent employment which was set out in the report of 9th June, 2005, submitted by Susan Tolan, the vocational consultant, who subsequently gave evidence on his behalf and, in that regard, he accepted that he had had a very good working record notwithstanding that he had gone through some very bad economic times. However, he protested that some of the work that he had had during that period was only part time work. Nevertheless, he agreed that, at one time, he owned two taxis and employed three drivers and was in partnership with a man named O’Reilly who looked after the administration of the business and who he ultimately bought out. He also agreed that he had kept the taxi business going up to the year 2004, although the year 2000 was a very bad year for him given that his son, David, tragically died during that year and that his marriage broke up shortly afterwards. He also agreed that the only reason that he did not continue in the taxi business was that several of his drivers had been involved in accidents and that the increase in his insurance premiums as a result of that was prohibitive. Furthermore, he agreed that the only indication in his working history of any problem with drink is that he had the conviction for drink driving back in the 1990’s but and that he had never been admitted to a psychiatric hospital or, indeed, any other unit on account of alcoholism. He did accept that, on the anniversary of his son’s, David’s, tragic death, he got into difficulty with the Garda Síochána on account of drink and that he is very aggrieved at the manner in which they dealt with him. In that regard, he rejected the suggestion that he had been arrested for being drunk and disorderly. He accepted that he had been drunk and that he had been convicted of being drunk but that he was never convicted of being drunk and disorderly. He added that, on that occasion, the manner in which the Garda Síochána handled him was wrong. He also said that the gardaí had accused him of smoking reefers but that charges against him in that respect were thrown out.
When it was suggested to Mr. Connellan that, regardless of the abuse which he alleged that he had suffered at Saint Joseph’s, he had learning difficulties he said that he did not know that but that, if he had, he did not get any learning support for whatever difficulties he might have had. He said that matters might have been different had there been a family to support him and that he would have done better had he not been beaten and sexually abused as he had been. When it was suggested to him that, despite the abuse which he has suffered, he had achieved as much as he could have expected to, his response was “my father was a doctor, is a doctor, my sons have done very well in school, so has my daughter. I do not know, maybe I would have done as well”. However, he agreed that, over the years, he had only been unemployed for a few months.
On re-examination, Mr. Connellan said that he did not know what Sally Nolan’s duties were but that she was in some kind of a way in a supporting role with Therese Connolly. He said that no one gave him any certificate indicating that he had passed an exam and that it was in court that he learned for the first time that he had passed the Group Certificate. He said that he could have spent another year in Ballyhale, had he chosen to do so but that Mr. Ryan had offered him a fulltime job which he was happy to accept.
I then heard evidence from Susan Tolan, who described herself as an occupational therapist and vocational evaluator and who submitted a vocational assessment report on the plaintiff dated 10th June, 2005, to which I was referred. In that regard, Ms. Tolan confirmed the accuracy of that report and she agreed that the plaintiff had a fairly good work record and that she thought that he was a man who was well motivated and wanted to work. However, notwithstanding that he had completed an apprenticeship and had gained extensive experience in panel beating, Ms. Tolan was not persuaded that the plaintiff had achieved his potential. In other words, she felt that he could be doing more than he had actually done. In that regard, she thought that his educational qualifications were such that he would have difficulty with the administrative end of a business and that he was a man who does not believe that he is capable of as much as he is capable of. In other words, she thought that his self esteem was low. In that regard, Ms. Tolan said that people who achieve great things are people who believe that they can do so and that, if you do not feel that you can achieve something, you probably will not do so. She also thought that the plaintiff’s problems in that area were chronic because, at a very vulnerable age, he was subjected to horrendous abuse which caused him to feel badly about himself so that he has been playing catch up since then but has never managed to catch up. She pointed to the fact that the plaintiff complains that he has problems with retention and she thought that that was quite understandable and that it was due to poor confidence and poor self esteem. However, she thought it unrealistic for the plaintiff to believe that he could have become a doctor. Nevertheless, she thought that he could feel that there would have been a lot of things open to him if he had not had the start in life which he had. However, she thought that someone in the behavioural therapy line would be of good benefit to him.
Under cross examination, Ms. Tolan agreed that, if a child is placed in an institution at six weeks of age and deprived of the benefit of a father and a mother and, throughout his life, is regularly exposed to racial prejudice, he is bound to suffer a loss of esteem. However, she maintained that she had met a number of people who had grown up in institutional care and had achieved more than the plaintiff had. On the other hand, she agreed that she had never seen a coloured person do so. She also agreed that she had seen a psychological report on the plaintiff in which it was suggested that he had learning difficulties, irrespective of the abuse to which he had been subjected, which would have benefited from remedial assistance which he did not get and which, at the time, many people in that situation did not get. However, she said that many people with learning difficulties hold down fulltime positions and do well and that she thought that it was the combination of all of the experiences that the plaintiff had had which put him in the situation in which he now is. On the other hand, she agreed that, even in the absence of the abuse to which he was subjected, the probability was that the plaintiff would have ended up doing practical manual work. Moreover, she thought it significant and to the plaintiff’s credit that, notwithstanding the problems with alcohol of which he complained, he was never institutionalised, nor, indeed, had to visit a hospital on that account. Whilst she agreed that the plaintiff had been in employment for the last 30 years, she thought that some of it was not as good as what he was capable of doing. When it was suggested to Ms. Tolan that, contrary to what she had been told, the plaintiff had, in fact, passed his Group Certificate, she would take a different view of his situation, her response was that she would need to know what type of a Group Certificate he had obtained because, in her experience, it was a relatively simple exam and not an easy one to fail. However, if he had passed the exam, Ms. Tolan believed that he should have been told that he had passed it, that the reality was that he believed that he had failed it and that that was one of the contributing factors to his poor self esteem. She also thought that the only way in which the plaintiff would be able to cope with the business which he presently had would be if he had someone to look after the administration end of it. In that regard, Mr. Tolan said that, in the current climate, it has become increasingly more bureaucratic to run a business but that, if the plaintiff does not overestimate his ability, she would hope that he would do well. In that regard, she said that the average earnings of an employed panel beater would be about €500 per week, that, as a self employed panel beater, he is currently earning between €800 and €900 per week and that she thought that he should be earning about €1,000 per week.
The next witness for the plaintiff was Dr. Mary McInerney, a consultant psychiatrist, who furnished two reports on the plaintiff to which I was referred and requested to take cognisance of. Dr. McInerney said that she takes special interest in social and rehabilitation psychiatry and had dealt with many cases involving persons who, in their younger years, had been abused or suffered deprivation of one sort or another. Dr. McInerney said that the plaintiff had been referred to her by his legal advisors and that she had taken a history from him as detailed in her reports. She said that, in the light of that history, the impact on David Connellan’s life was that he had lost his sense of self. In that regard, she said that ones self esteem and one’s psychological ability comes from many factors including one’s upbringing and the attention, care and affection which one receives in the course thereof. In that regard, she said that, as a result of the physical, sexual and emotional abuse to which he had been subjected, David Connellan had lost his self esteem, his ability to trust people and his ability to show affection and that he had become very introverted, was a loner and was indecisive. Furthermore, his ability to concentrate at school was affected by his experiences and, in that regard, she was of the view that his school reports reflected that he could be very good, or very bad, depending upon his level of interest and the extent to which his sleep pattern was disturbed. Apparently, the plaintiff had told Dr. McInerney that, over the years, Therese Connolly had disturbed his sleep at night on the occasions when she had sexually abused him. However, generally speaking, Dr. McInerney was of the view that the plaintiff’s confidence in himself was marginalised as a result of the abuse to which he had been subjected. When asked to what extent (if any) the problems which she perceived the plaintiff to have were attributable to his lack of parental support, the fact that he was a different colour from virtually everybody else and that he had been brought up in an institution, Dr. McInerney was of the view that, in his early years, the plaintiff had been reared in a loving environment and that Sister Conception would have played the role of his parents. However, from age seven years when he came under the care of Therese Connolly, his life disintegrated and was shattered and that, in Dr. McInerney’s view, had a huge impact on the rest of his life. In that regard, Dr. McInerney had the belief that, at seven years of age, when the plaintiff was transferred to Saint Joseph’s, Sister Conception went out of his life but, of course, that was not so. When this was pointed out to Dr. McInerney, she seemed to be of the view that Sister Conception had delegated her role of being in loco parentis of the plaintiff to Therese Connolly, who abused that trust. When asked to differentiate between the psychological problems suffered by Mr. Connellan, on the one hand, as a result of the abuse to which he had been subjected and, on the other, as a result of being abandoned by his parents when he was a baby and being a coloured person in a population which was essentially white, Dr. McInerney said that she had seen a lot of people who had been abandoned and placed in orphanages but, nevertheless, had done exceptionally well in life. On the other hand, she agreed that there were others in the same position who had not done well. However, insofar as the plaintiff was concerned, it was her opinion that both, personally and academically, he was affected by the culture which prevailed while he was in Saint Joseph’s. Accordingly, while she accepted that the fact that he had been abandoned as a child and was coloured would have had some impact on his development, it was her opinion that the major impact had been the sexual, physical and emotional abuse to which he had been subjected while he was in Saint Joseph’s and, in that regard, she said that symptoms of depression and low esteem are factors which occur in persons, who have been subjected to abuse in their earlier years, notwithstanding that they came from an otherwise stable background. Dr. McInerney added that self esteem, when one leaves school, is of huge importance because it gives one a sense of determination and decisiveness about what one wants to do in life.
Dr. McInerney noted that the plaintiff is currently on antidepressant medication prescribed by his general practitioner, Dr. O’Gorman, and she expressed satisfaction that that was appropriate treatment for him. In that regard, she said that she thought that Mr. Connellan should stay in contact with Dr. O’Gorman and that he needs to continue with antidepressant medication. She also thought that, as he had expressed difficulty about going to counsellors in public service, he might benefit from attending a private counsellor and she said that it is vital that he continue in employment and, in that regard, it was her belief that it would be in his better interest to be in a self employed capacity and hopefully, with psychological intervention, he would regain some confidence. In that regard, she said that Mr. Connellan has problems with concentration, motivation and drive and that that is part of the depression from which she believes that he is suffering but hopefully, will improve with the therapy which she has suggested. In that regard, she said that he was now more bubbly in his personality and more motivated and driven then he had been when she first saw him and, with ongoing therapy, she believed that his preoccupation with his former woes would lessen and that he will be able to let the feelings of anger and resentment which he presently experiences go to the extent that there would be closure.
Dr. McInerney said that she had had the benefit of seeing a report from a Dr. Blenner Hassett, who had examined the plaintiff on behalf of the defence, and, in the light of that report, she believes that he supported her views with regard to the plaintiff. When asked could she say how long it is likely to be before there is a significant improvement in the plaintiff, Dr. McInerney said that there would certainly be a huge improvement within a two year period.
Under cross examination, Dr. McInerney agreed that, when she first saw the plaintiff in February, 2003, he was not on any medication and that, although he, himself, felt that he was suffering from depression, he had never sought help for it. In that regard, she thought that he manifested symptoms of a depressive illness although, perhaps, not a profound one. In particular, she thought that his motivation, drive, concentration and, indeed, his sleep pattern was disturbed although she agreed that she had not articulated a clinical diagnosis of depression in her report on the plaintiff of the 18th February, 2003. However, that was her view and, when she saw the plaintiff on the 14th November, 2005, her diagnosis was that he had suffered severe depressions with suicide attempts. However, she agreed that she had never seen any medical records of the plaintiff prior to 2003 and that all that she had seen was his solicitor’s case report. Moreover, she agreed that, insofar as she was aware, the plaintiff had no history of having had any formal treatment or admissions to any institutions in respect of psychiatric or alcohol issues. However, she said that the plaintiff, himself, had told her that he avoided therapeutic intervention and that he had difficulty attending mental health services.
Under further cross examination, Dr. McInerney said that it is very difficult to differentiate, or measure, the impact which the various experiences which the plaintiff had had over the years had had on him but that she thought that the sexual abuse to which he had been subjected had a huge impact on his life. However, in the absence of the sexual abuse, she could not measure how the other factors; the absence of parental support, the fact that he had been brought up in an institution and the fact that he had been subjected to racial abuse, had affected him. However, she said that he did not have a chance to do well because of the abuse. Nevertheless, she did agree that the racism which he had experienced would, undoubtedly have had some impact on him and that, as a young child, it must have been quite profound. She also agreed that the suicide of his son, David, in August, 2000, had a huge impact on the plaintiff’s life and that, prior to that, he had not had counselling, nor had he been on any medication. She also agreed that the fact that Mr. Connellan had been in regular employment was indicative of a degree of wellbeing and, certainly, an ability to get on with life. However, she thought that, if he had had better schooling, he probably would have had more opportunities to do better for himself. With regard to the psychological report on the plaintiff submitted by Mr. Stephen Kealy, a clinical psychologist, which suggested that Mr. Connellan had learning difficulties and would have benefited from special needs learning, Dr. McInerney said that it was clear from his history that the nuns in Saint Joseph’s did not think that he had any intellectual disability and that, having spoken to the man himself, she did not think that he was intellectually disabled in any way. In her view, had he had proper support and had he been able to concentrate, he had ability and she thought that his school reports supported that view. It was not an intellectual deficit that impacted upon his learning ability but the abuse to which he was subjected and the resultant lack of concentration. Dr. McInerney concluded her evidence by saying that she had not plans to see the plaintiff again.
The next witness for the plaintiff was Dr. Mary O’Gorman, the plaintiff’s general practitioner. She said that she did not first see the plaintiff until 30th September, 2005 and that she took over from a Dr. Bradbury, who had seen him previously. She said that, when she first saw Mr. Connellan, he presented with symptoms of not sleeping, not eating, being unable to concentrate and, as she put it “he felt that he had had enough”. She prescribed antidepressant medication for him. He had previously been on medication for gastritis and increased acid in the stomach which, in Dr. O’Gorman’s view, was related to stress. He was also on sleeping tablets. Dr. O’Gorman said that, from the time that she first saw the plaintiff on the 30th September, 2005, she had seen him since and that he complained to her that he was not as good as he would like to be, that he could not sleep at night and that he was awaiting redress board proceedings which caused him anxiety. In that regard, Dr. O’Gorman agreed that these proceedings would be a stressful experience for the plaintiff. However, she thought that he was doing reasonably well considering everything. Insofar as the future was concerned, Dr. O’Gorman anticipated that the plaintiff would require treatment for some time to come; she thought 12 or 18 months, and that she would encourage him to consult other services.
Under cross examination, Dr. O’Gorman said that she had seen no report from Dr. Bradbury and that the history that she had obtained from Mr. Connellan was from the man himself. She said that he needed persuasion to take antidepressant medication but she was not aware whether or not he was prescribed any medication after his son committed suicide.
That completed the evidence for the plaintiff.
The first witness for the defence was Sarah Mary Nolan who told me that she is usually called Sally. She said that she was born on 26th October, 1951, that, originally, she went to school in Tullamore and that that school closed down in 1964 and that she then went to Saint Joseph’s in Kilkenny. She said that she was supposed to go into sixth class but that for a variety of reasons, she stayed in fifth class. She said that she left Saint Joseph’s a fortnight before her sixteenth birthday which would have been early October, 1967. She said that, when she was in Saint Joseph’s, and after she had finished the Primary Certificate, she was transferred to the nursery which she described as the adoption society where she looked after babies. In that regard, the nursery was also staffed by a nun and by nurses and Ms. Nolan said that she would be required to be in the nursery most of the day, apart from meal times. However, she said that, after the children were put to bed, she often went to the boys’ dormitory and taught them to sing. She agreed that she knew the plaintiff, David Connellan. Indeed, she said that he had never changed. However, she said that she never hit or beat David Connellan and that she hadn’t a clue what he had said about her. She agreed that he would have been one of the boys in the dormitory who she taught to sing. When asked whether or not she recalled having any involvement with Mr. Connellan over anything, be it bed wetting or anything else, Ms. Nolan replied that she never knew that he wet the bed.
Under cross examination, Sally Nolan said that, originally, she was a pupil at Saint Joseph’s and that she lived there as well. She said that she finished her primary education after two years; that was in the 1966, and that then she was asked to work in the nursery. She said that the boys’ dormitory was on the nursery corridor. She said that she would only have been with the boys singing them songs until about five o’clock before she went on her tea break. He said that she never replaced Therese Connolly when Therese Connolly was off duty. She said that she was not being paid for her services but that, as she was living in Saint Joseph’s, she was asked to help out in the nursery. She said that, on one night, she was asked to supervise the boys. She said that, on that night, there was a big meeting for the staff at the Social Services Centre and she had to take over the whole corridor. Sally Nolan then told about an intruder that she met and, to be quite frank, other than the fact that he appeared to have frightened her, I did not quite understand all the nuances of that experience. However, she said that, on that night, Therese Connolly had given her instructions to look after the boys and that, sometime afterwards, she was transferred from the nursery to the wash house. However, apart from that night, Sally Nolan said that she did not have any supervisory duties with regard to the boys. When asked who looked after the boys when Therese Connolly was on her day off, Sally Nolan said that Therese Connolly had no day off; that she was there seven days a week. However, she acknowledged that her knowledge of what was going on was a bit limited. She said that, after she was transferred to the wash house, the singing had to stop and that she had had no contact with the boys after that. Moreover, she said that she did not remain friendly with Therese Connolly.
Under further cross examination, Sally Nolan said that, on the one night that she was in control of the boys, she saw them going to bed and that, to do so, she just stood in the doorway of the dormitory and that was all that she had to do. She said that she didn’t have a clue about bed wetting; that she did not know that some of the boys wet the bed.
Sally Nolan completed her evidence by saying that nobody ever called her Sally Hogan and, in reply to questions from me, she emphatically denied that she ever beat Mr. Connellan or stuck his face in wet sheets. Indeed, she said that she did not even know that he wet the bed.
The plaintiff was then recalled and I asked him had he seen Sally Nolan and had he recognised her as the lady who he believed to be Sally Hogan and who he said had beaten him regularly and had stuck his face in a wet sheet and he replied in the affirmative.
The next witness for the defence was Mr. Paul Glennon, who was formerly the vice principal at the CBS secondary school in Kilkenny. Mr. Glennon said that he recalled the plaintiff as a pupil there. He said that there was one other coloured boy in the school; his name was Alan Maharaj, whose father was an orthopaedic surgeon. Mr. Glennon emphatically denied Mr. Connellan’s allegation that there had been an occasion on which he (Mr. Glennon) had produce a belt; apparently to chastise the plaintiff and that, when he did so, the plaintiff had stuck him as a result of which the plaintiff was expelled. Mr. Glennon said: “No such incident had occurred”. He said that he was quite certain of this because, at the time, Brother Cohan was the principal at the school and not a great deal of responsibility was given to the vice principals in the Christian brother system and that, under Brother Cohan, he had no responsibility for discipline. Therefore, contrary to what the plaintiff had said, other teachers would not have sent their pupils to him on disciplinary matters. With regard to the plaintiff’s suggestion that he had been subjected to racial abuse from other boys at the CBS in Kilkenny in the presence of staff, Mr. Glennon said that, while he could not say that he had never suffered racial abuse from other pupils, he would say as of certainty, that it would not have occurred in circumstances where teachers stood by and did not reprimand the pupils. In this regard, Mr. Glennon agree that he could not speak for all the other teachers but he said that he was well aware of the culture in the school; that the plaintiff was known to be a boy from Saint Joseph’s and that, therefore, more care would have been taken of him and the fact that he was one of the few coloured boys in the school would also have helped to attract special care for him. Mr. Glennon was adamant that the CBS was not a school where teachers would stand by and hear boys abused. Certainly, he did not do so and he did not believe that any of his colleagues would have done so.
Under cross examination, it was suggested to Mr. Glennon that Alan Maharaj came from a very different social background than did the plaintiff and Mr. Glennon agreed. He also agreed that, at the time, there would not have been many other boys from Saint Joseph’s at the CBS. In fact, he said that he thought that the plaintiff was the only one there at the time. He said that he was certain that the plaintiff had not been expelled from the school as a result of the incident which he had described because that incident never occurred. However, he could not say, with 100% certainty, that he had not been expelled from the school. He said that he did not believe that he had been expelled because very few pupils were expelled in those days. He said that, if David had been troublesome and if there were bad reports about him going back to the nuns, the nuns would simply have taken him from the school but it would not have been an expulsion. In that regard, he said that the nuns had a habit of sending boys and girls from Saint Joseph’s to the Ballyhale Vocational School because it was a coeducational school. Mr. Glennon agreed that, in Kilkenny at the time, there was a tendency that boys from working classes or from the orphanage, went to vocational schools whereas middle class boys went to the secondary school. However, he knew of other boys; other than the plaintiff, who had gone to secondary school but he agreed that there were not many who did that. Mr. Glennon said that while he knew that the plaintiff had gone to the Ballyhale Technical School, he did not know that he had to thumb a lift to the school. While he said that he was not familiar with Mr. Connellan’s school reports, he agreed with the suggestion that he was boy of modest ability who was not concentrating on his work. In that regard, he said that his recollection was that the plaintiff was a “good natured happy rapscallion of a youngster and quite popular with other fellow pupils and, I would have thought, with the teachers”. While he agreed that Alan Maharaj would have been in a different social category from the plaintiff, his recollection was that the plaintiff was popular and that his colour was not a bar to his popularity. However, he agreed that, in provincial Ireland, there was quite a distinction made between boys coming from an orphanage and boys coming from a middle class background. Moreover, he asserted that he believed that the CBS would have done their best for the plaintiff. While he said that he could not say that the plaintiff was never subjected to racial abuse and he agreed that some boys may well have abused him, he rejected the suggestion that there would have been a culture in the school where teachers would have permitted that to happen. Mr. Glennon agreed that there was corporal punishment in the school until the year 1980 and that he would have slapped boys. However, he totally rejected the allegation which the plaintiff had made against him. Whereas he conceded that he would have slapped boys in his own class, he said that he did not have jurisdiction over boys in other classes. He could not recall whether or not he had ever slapped the plaintiff but he agreed that he might have. He said that he recalled the plaintiff because he was acquainted with him after he was a pupil at the CBS and knew him when he went to work with Ciaran Ryan and the plaintiff had sent his own sons to the school when he (Mr. Glennon) was the principal so that he had met him as a parent. He said that he thought that he might have taught him at some stage but he was not quite sure. When it was suggested to him that the plaintiff would say that he did not teach him, Mr. Glennon was prepared to accept that. He agreed that it was unusual for a boy to leave at the end of second year so that there must have been some reason why the plaintiff was removed from the school at the time that that occurred. However, Mr. Glennon was adamant that that reason was not that the plaintiff had hit him. In any event, he did not believe that the plaintiff had been expelled; that he had no recollection of it and neither, indeed, had any of the other teachers to whom he had spoken any such recollections. While he accepted that it was unusual that the plaintiff, having started off in the secondary school, would be removed, it did happen that boys went into employment and apprenticeships. Mr. Glennon also said that he did not consider it strange that the plaintiff would have been sent to Ballyhale because he knew that other pupils from Saint Joseph’s had gone to that school.
The next witness for the defence was Mr. Dermot Curran, the current principal of the CBS in Kilkenny. He said that he recollected the plaintiff from the years 1973, 1974 and 1975 and that he actually taught him. He said that he was in the first group of boys that he taught in Kilkenny and he remembered him quite well. He said that there was one other coloured boy in the school; Alan Maharaj. He described the plaintiff as being lively but being capable of having a temper for which he probably punished him. He said that the plaintiff was of a standard of ability in keeping with the class that he was in. In that regard, he said that the school was streamed into three streams and that David Connellan was in the 1C group so that he would have been determined as being more modest in ability. Mr. Curran said that he had no knowledge of the plaintiff being subjected to racial abuse while teachers stood idly by. Indeed, he said that, by virtue of the fact that the plaintiff was very obviously black, most people, including himself, would have had a sense of protection towards him. At the same time, he could not say that the plaintiff had not been the subject of racial abuse from other boys but, insofar as he was concerned, it would not have been acceptable that a teacher, or adult, would allow such a thing to happen. When asked whether or not he knew anything about the plaintiff’s alleged expulsion from the CBS, Mr. Curran said that he was very surprised to hear of it because, as far he was concerned, formal expulsion was very much a last resort and, indeed, although he has been principal of the school for seven years, he has never had to engage in a formal process of expulsion. Mr. Curran said that, nowadays, there would be a record kept if a pupil was expelled but that such records were not kept in those days for the reason that the school did not employ an administrative assistant. However, notwithstanding the absence of a record, Mr. Curran asserted that, if an expulsion had occurred, it would be very much common knowledge among the staff and he had no recollection that the plaintiff had been expelled. He said that the plaintiff would have been 15 years of age when he left the CBS and that it was not a rarity for a boy to leave at that age. However, he could not recall the circumstances under which the plaintiff had left. Mr. Curran said that it would have been an impossibility that the plaintiff would have failed the Group Certificate while he was a pupil at the CBS because CBS pupils did not sit the Group Certificate. It was then suggested to him that the plaintiff had, in fact, sat the Group Certificate while he was a pupil at the Ballyhale Technical School and Mr. Curran agreed that that was the place he would have done it. Mr. Curran recalled that the plaintiff had had two sons, Rory and David, at the CBS.
Under cross examination, Mr. Curran agreed that, at the time, there was a certain snobbery in Kilkenny with regard to the school that one attended and that the CBS would be seen as a place to which one would send your son if you wanted him to get a good academic leaving certificate. He said that there was no record that Mr. Connellan had ever been expelled from the CBS and no explanation as to why he went to the Ballyhale Technical School. However, he said that, if someone was seen as having a tendency towards the manual trades, the vocational schools would have a greater attraction because employers would prefer someone with a Group Certificate than an Intermediate Certificate. Mr. Curran said that he did not realise that the plaintiff had come from Saint Joseph’s until he was sometime into his first year at the CBS because there was no singling out where boys in the class came from. In other words, there was no labelling or tagging of a boy as being from Saint Joseph’s. He said that streaming in the CBS was based on ability but he could not say whether or not any of the Saint Joseph’s boys got out of the C stream. He added that he had never received any complaint from boys in Saint Joseph’s about improper conduct carried out by people in Saint Joseph’s. Moreover, he agreed that David Connellan was bright and able. He said that they would have had their rows and that, at times, he had an inability to concentrate in class but that that would not have been a regular feature.
The final witness for the defence was Sister Conception who said that she had been in Saint Joseph’s from 1956 and that she became resident manager in 1972. She said that, between 1968 and 1971 a Sister Vincent Ferra was in charge of the boys; having come with them from Saint Patrick’s. She said that Therese Connolly was employed to help Sister Ferra with the boys. When asked did she remember Sally Nolan, Sister Conception said that she did, that she was in the school until she was 15 years of age and that, when she left school, she was in the nursery helping the nurses and other care workers. She said that Sally Nolan had no responsibility insofar as the boys were concerned although she sometimes sang songs with them. However, she said that the only persons in charge of the boys were Sister Vincente and Therese Connolly. She said that there was no such thing as time off for the sisters and when asked whether or not Therese Connolly took time off, Sister Conception said she was not sure because she (Sister Conception) was not in charge but that she felt sure that she had some hours off. In that regard, Sister Conception was asked if, in the event that Therese Connolly did take time off, who would be in charge of the boys, and her reply was Sister Vincente and that we, meaning the other nuns, would go down and help her out. Sister Conception agreed that Sally Nolan had been at Saint Joseph’s until two weeks before her 16th birthday in 1967. She said that Sally Nolan had been at Saint Joseph’s for three years and that, after she left school, she still lived, slept and got all her meals at Saint Joseph’s but that she then used to help out in the nursery.
Sister Conception said that boys from Saint Joseph’s, other than the plaintiff, went to the CBS and she said that she did not think that he had ever been expelled from the CBS although it may have been that he was let go a week or two early but that he was never expelled and she agreed that he then went to the Ballyhale Technical School but she did not accept that he had had to hitchhike to Ballyhale because she said there was a bus available. When reminded that Mr. Connellan had said that he never knew that he had passed the Group Certificate, Sister Conception said that she could not remember but that she was sure that everyone would have been delighted when he passed it; the implication being that he must have been told.
Under cross examination, Sister Conception said that her memory of the material time was quite good. She said that she was very fond of David Connellan and kept up a friendship with him over the years. She said that her memory was helped by the fact that she took notes with regard to the girls’ birthdays. She said that she was surprised at Sally Nolan’s suggestion that Therese Connolly never had any time off and that, insofar as looking after the boys was concerned, Sally Nolan’s involvement was just entertaining them and that she could not say that Sally Nolan ever supervised them and, certainly, she had no responsibility for the boys. Moreover, Sister Conception would not agree that Sally Nolan looked after the boys if and when Therese Connolly had time off. Neither could she say, as Sally Nolan had said, that there was one night upon which she was asked to look after the boys. Insofar as Sister Conception was concerned, Sally Nolan was only a child at that stage and did not have any responsibility for looking after the boys. Under further cross examination, Sister Conception said that, at the time, she had no idea that Therese Connolly was misbehaving in a very serious way towards Mr. Connellan and neither did she know what David Murray had been up to. Indeed, she agreed that there were a lot of things going on in Saint Joseph’s at the time that she was not aware of. With regard to the plaintiff’s evidence that he had to hitchhike to Ballyhale Technical School, Sister Conception said that she did not expect the boys to hitchhike and, if it happened, it did not come to her attention. She also said that she did not remember teachers making unkind comments to the plaintiff in relation to his colour.
That was the end of the evidence and counsel on behalf of the defence handed into the court, the Group Certificate awarded to the plaintiff in 1976.
FACTS IN ISSUE
With one exception, the defence did not challenge the plaintiff’s evidence with regard to the abuse, both sexual and physical, which he alleged that he had received at the hands of Therese Connolly; the one exception being that the defence did not concede that Therese Connolly had locked the plaintiff in a cubby hole on ten to twenty occasions during the three year period that he was under her control. The expressed reason for rejecting that allegation was that it was first introduced by the plaintiff when he gave evidence before me on the 2nd day of December, 2005 and was not included in any particulars furnished by or on his behalf prior to that date. For the same reason, the defendants maintained that the plaintiff’s claim with regard to those allegations, which it was submitted amounted to false imprisonment of the plaintiff, was statute barred. However, the plaintiff was never challenged that those events did not take place. Again, while the defence did not challenge the plaintiff’s evidence with regard to the physical abuse which he said that he had experienced at the hand of David Murray, they did not concede that, as the plaintiff also alleged, Mr. Murray had indecently assaulted him on three occasions. That allegation was also rejected for the reason it was not included in any particulars furnished on behalf of the plaintiff prior to the trial of these proceedings and was first introduced by the plaintiff in the course of his evidence on the 2nd December, 2005. For the same reason the defence contended that that complaint, also, was statute barred. The defence did not challenge the plaintiff’s evidence with regard to the sexual assault which he alleged that he had experienced at the hands of Breffney O’Rourke but did not concede that Mr. O’Rourke had physically beaten the plaintiff on twenty occasions in a five month period which the plaintiff also had said. Again, that allegation was rejected by the defence for the reason that it was first introduced by the plaintiff in the course of his evidence on the 2nd December, 2005 and, accordingly, if it had happened, the defence maintained that the plaintiff’s claim in respect thereof was also statute barred. The defence also complained that, in the course of his evidence on the 2nd December, 2005, the plaintiff gave evidence of racial abuse which he had experienced at the hands of a variety of persons but, particularly, at the hands of Therese Connolly and Sally Nolan, or, as the plaintiff called her, Sally Hogan; allegations which he was then making for the first time and which the defence did not accept and, in any event, claimed were statute barred. Finally, the defence totally rejected the plaintiff’s evidence that he had been the victim of a multiplicity of physical assaults at the hands of Sally Nolan, or as he called her Sally Hogan; again, for the reason that these allegations were first made in the course of the plaintiff’s evidence on the 2nd December, 2005 and, again, the defence maintained that, had the plaintiff suffered that physical abuse at the hands of Sally Nolan any claim that he had in respect thereof was statute barred. Apart from the foregoing, the defence accepted liability for the physical and sexual abuse which the plaintiff said that he had experienced at the hands of Therese Connolly, for the physical abuse that he said that he had experienced at the hands of David Murray and for the sexual abuse that he said that he had experienced at the hands of Breffney O’Rourke and they acknowledge their liability to compensate the plaintiff in respect of those matters and the sequela thereof. However, they did not accept that one of those sequela had been that the plaintiff lost an element of educational and vocational opportunity because, again, that claim was first introduced in the additional particulars delivered on behalf of the plaintiff on the 9th day of January, 2006 and, in any event, the defence did not accept the plaintiffs assertion that he had been expelled from the CBS secondary school in Kilkenny or that he had failed the Group Certificate.
Insofar as the factual conflicts identified above are concerned, I have no doubt but that the plaintiff was wrong when he said that he had failed the Group Certificate. Quite clearly, he succeeded in passing that examination but I am not persuaded that he was ever made aware of the fact that he had passed it. He was adamant that he had never been made aware of that fact and, to be quite frank, I was impressed by his insistence in that behalf. Moreover, it appears from the several reports submitted by his doctors and by his vocational consultant, Susan Tolan, that he consistently told them that he had never passed an examination. In those circumstances, notwithstanding Sister Conception’s belief that he would have been told that he had passed the Group Certificate, I do not believe that he ever was. On the other hand, neither do I believe that the plaintiff was expelled from the CBS secondary school in Kilkenny. To be quite frank, I have no clear picture from the evidence which I heard as to why he left the CBS and went to the Ballyhale Technical School but, insofar as he alleged that he was expelled from the CBS and the reason which he gave for that expulsion, I prefer the evidence of Paul Glennon and Dermot Curran. While neither of these men was prepared to say that they were 100% certain that Mr. Connellan had not been expelled from the school, both were firmly of the belief that he had not been expelled and the reasons which they gave for that belief impressed me. In any event, I preferred Mr. Glennon’s evidence that, contrary to what the plaintiff had stated, Mr. Connellan had never struck him after he (Mr. Glennon) threatened to punish the plaintiff with a belt, which, of course, he also denied doing.
While it was suggested to the plaintiff under cross examination that he had not mentioned the additional allegations which he made against David Murray and Breffney O’Rourke in the course of the evidence which he gave on the 2nd December, 2005, when he made statements to the gardaí; the plaintiff’s response being that, insofar as David Murray was concerned, the Gardaí were not interested in what might have happened and, insofar as Breffney O’Rourke was concerned, the gardaí were not interested in physical abuse, the plaintiff was not challenged that those events did not occur. That being so and given that it was accepted that, during his period at Saint Joseph’s, the plaintiff was the victim of both physical and sexual abuse, I am inclined to believe that he did suffer at the hands of Messrs. Murray and O’Rourke as he said that he did and I am not convinced that, given the history of those two men, the defence should have been very surprised at those allegations. For those reasons, I am satisfied that those events did occur and, while they were not articulated in the statement of claim delivered herein, I am not persuaded that the plaintiff’s claim in respect thereof is statute barred.
Insofar as the plaintiff’s allegations with regard to the abuse which he maintains that he suffered at the hands of Sally Nolan or, as he called her, Sally Hogan, is concerned, I can well understand how the plaintiff, who was only seven years of age at the time, could have mixed up the surnames.
However, in the light of Sally Nolan’s own evidence and, indeed, that of Sister Concepta, I am convinced that Mr. Connellan is mistaken when he says that he was abused by Sally Nolan. It may well be that, in addition to being abused by Theresa Connolly, Mr. Connellan was also abused by some other woman although, as the evidence before me suggests that the only other females who were in charge of boys were the nuns, I rather doubt that. However, that as it may be, I am not at all convinced that he was abused by Sally Nolan and I think that he was mistaken when he identified her as being one of his abusers. There are a number of reasons why I have come to this conclusion. In the first place, the import of Mr. Connellan’s evidence is that he was abused by Sally Nolan (Hogan) over the same period of time as he had been abused by Theresa Connolly i.e. three years, whereas I am convinced by the evidence of Sally Nolan, herself, and by that of sister Concepta that Sally Nolan left Saint Joseph’s shortly before her sixteenth birthday in October 1967 whereas the plaintiff only arrived in Saint Joseph’s in September 1966. Accordingly, the two of them could only have been at Saint Joseph’s at the same time for a little over one year; not three years. In this regard, I am also influenced by the fact that the plaintiff described the woman, who he called Sally Hogan, as being twenty eight or thirty years of age whereas, when Sally Nolan was at St. Joseph’s, she was under sixteen years of age. In addition, I cannot understand how if, as the plaintiff alleges, he was abused, both physically and racially, for a three year period by Sally Nolan (Hogan), this fact was not mentioned to anyone; not in the pleadings and not in the reports of his doctors or his vocational consultant, before he got into the witness box on 2nd December, 2005. In any event, I am persuaded by Sally Nolan’s denial that she never abused the plaintiff, and that she was ever in charge of him, and by Sister Concepta’s evidence that Sally Nolan had no responsibility with regard to the boys that David Connellan was not abused by Sally Nolan.
With regard to the allegation that Theresa Connolly had locked the plaintiff in cubby-holes on a number of occasions over the three year period during which he was under her control, while this allegation did not emerge until the plaintiff gave evidence on 2nd December, 2005, given that it is accepted that he was abused in a variety of ways by Theresa Connolly, and that he was never challenged that that did not happen, I am inclined to accept that it did happen. In that regard, when a person is pursuing a claim for compensation arising from abuse which he/she has experienced at the hands of another and the nature of that abuse is multiple and varied, as was the abuse to which Mr. Connellan was subjected by Theresa Connolly, I do not think it necessary that the victim identify each and every incident of abuse in advance of the trial of his/her action before he/she was entitled to rely on it in support of his/her claim. For the same reason, I reject the contention on behalf of the defence that the allegations of racial abuse which the plaintiff made in the course of his evidence on 2nd December, 2005, cannot properly be entertained by me when considering his claim herein.
CONCLUSIONS
In the light of the evidence which I have heard, I have no doubt whatsoever, that, over a five year period, while he was a resident at St. Joseph’s, Kilkenny i.e. when he was in St. Joseph’s, itself, and when he was in Summerhill, he was subjected to physical, sexual, emotional and racial abuse at the hands of Theresa Connolly, David Murray and Breffney O’Rourke; abuse which was vicious and demeaning over a long period of time and was calculated to kill his spirit, as it did. I am equally satisfied that, as a result of that abuse, the plaintiff lost his self esteem, confidence and his ability to trust people; that he lacks stability and that he is riddled with indecision and is very much a loner. I am also persuaded that this abuse affected his ability to concentrate when he was at school with the result that, educationally, he never achieved his potential and is now less capable as an administrator than he might have been were it not for that abuse. In this regard, in the light of the evidence of Dr. McInerney coupled with that of Mr. Paul Glennon and Mr. Dermot Curran I am not persuaded, despite the suggestion of Mr. Stephen Kealey, the Consultant Psychologist, that the plaintiff had learning difficulties when he was at Saint Josephs. While I accept that he has had emotional problems as a result of that abuse which necessitated appropriate medication and counselling which is ongoing, I am not persuaded that he had, or has a significant problem with alcohol on account of it, as he asserted, for the reason that he does not appear to have required any medical help in that regard and was never institutionalised on account of over indulgence of alcohol. While I do not doubt that the fact that he was abandoned by his parents, that he was institutionalised for the first sixteen years of his life and that he was a coloured person in a predominantly white environment significantly inhibited his emotional and educational development, nevertheless, having regard to the severity of the abuse to which he was subjected and the fact that it was ongoing for a long period of time, I am satisfied that it was the abuse, rather than the other matters, which predominantly affected his development and which is primarily responsible for his current educational and emotional problems. In fact, notwithstanding the appalling ill treatment to which he was subjected in the course of his upbringing and the problems which that brought in its wake, it seems to me that David Connellan has done remarkably well in life, in that, since he left school, he has rarely been unemployed; albeit that some of the jobs which he got were well below his capabilities, that he sustained a marriage for twenty two years and that, so far, two of his children have been very successful in their careers. To that extent, it seems to me that he has had the fortitude to be able to overcome some of the unhappy events which he experienced in the course of his upbringing.
I also feel that the tragic death of his son, David, contributed to some of his past and present emotional problems. Nevertheless, his period at Saint Josephs was, in my view, a very hard cross to bear and if he is to be properly compensated for all the wrongs to which he was subjected during that period and the knock on effect which those wrongs have had on him since that time and are likely to have on him for some time into the future, I believe that only a substantial sum of money would be appropriate. In that regard, as laid down by the President of the High Court, Mr. Justice Finnegan, in the case of Noctor v. Ireland & Others [2005] 1 I.R. at p. 433 where, as in this case, damages are claimed under the headings of negligence, breach of duty, assault and breach of and failure to vindicate constitutional rights, the award has to comprehend each of those headings and, in assessing the amount to which I think that the plaintiff is entitled, I propose to do just that. I also propose to have regard to the regulations made under the Residential Institutions Redress Act, 2002, (Assessment of Redress) Regulations, 2002, because I think that the provisions of those regulations have a relevance in this case although I do not consider myself in anyway bound by them. Although no out of pocket expenses have been proved by the plaintiff nor, indeed, has he sought to quantify any future expenditure attributable to ongoing psychological problems, his psychiatrist, Dr. McInerney, gave evidence that it was appropriate that he should continue to take anti-depressant medication and that he would benefit from attending a private counsellor. In my view, that is a reasonable suggestion and, accordingly, when assessing the plaintiff’s compensation for the future, I propose to build into it a figure to cover the costs of future medication and counselling. In addition, counsel for the plaintiff has submitted that this is a case in which it would be appropriate to award aggravated damages. In the case of Conway v. Irish National Teachers Organisation [1991] 2 I.R. at p. 305, Chief Justice Finlay stated:
“Aggravated damages being exemplary damages increased by reason of;
(a) The manner in which the wrong was committed, involving such elements of oppressiveness, arrogance and outrage or
(b) The conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong or
(c) Conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, circumstances which may properly form an aggravating feature in the measurement of compensatory damages must in many instances be in part a recognition of the added hurt or insult to the plaintiff who has been wronged. It is in part also a recognition of the cavalier or outrageous conduct of the defendant.”
While doubts have been expressed as to whether aggravated damages should be awarded in negligence claims (see the Judgment of Keane C.J. in Swaine v. Commissioners of Public Works [2003] 1 I.R. at p. 521) McCracken J. in the course of a judgment which he delivered in a case of Philip v. Ryan [2004] 4 I.R. at p. 257 stated that he had no doubt but that, in an appropriate case, such damages can and should be awarded. While Finnegan P. in the course of his judgment in Noctor v. Ireland, hereinbefore referred to, seems to suggest that it would not have been appropriate for him to award aggravated damages in that case, he, nevertheless, said that the award of general damages which he made was intended to take into account all the circumstances which surrounded the sexual and physical abuse to which the plaintiff in that case had been subjected. That seems to me to suggest that, in fact, he included an allowance for aggravated damages in the award of general damages which he made. However, whether or not he did so, it seems to me that, in this case, whatever about the abuse to which the plaintiff was subjected at the hands of David Murray and Breffney O’Rourke, that to which he was subjected at the hands of Theresa Connolly had elements of oppressiveness, arrogance and outrage of the type contemplated by Finlay C.J. in the course of his judgment in Conway v. Irish National Teachers Organisation, hereinbefore referred to, and accordingly, is deserving of aggravated damages. In that regard, I would refer to the fact that, in addition to the physical and sexual abuse to which the plaintiff was subjected at the hands of Theresa Connolly, she taunted him making him sing a song “I’m nobody’s child”, she abused him racially, she instilled in him that he was totally under her control, that she could do with him whatever she wanted and that all the abuse to which she subjected him was done in the presence of other boys. If that is not arrogance and outrage deserving of aggravated damages, I do not know what is.
In all the foregoing circumstances, for the five years during which he was subjected to abuse at the hands of Theresa Connolly, David Murray and Breffney O’Rourke and for the consequential loss of self esteem, loss of confidence and failure to achieve educational potential, I will award the plaintiff the sum of €200,000 for general damages. For the future, allowing that he is going to continue to experience emotional problems attributable to his experience at Saint Josephs, for the next two years or so and that, during that period, is going to have to purchase anti-depressant medication and to pay for private counselling I will allow a sum of €50,000 for general damages. On top of all that, I will allow a sum of €50,000 for aggravated damages. Accordingly, there will be judgment for the plaintiff for €300,000.
South Australia Asset Management Corpn v York Montague Ltd
Economic Loss
House of Lords [1996] UKHL 10, [1996] 3 All ER
365
LORD HOFFMANN: . . .
My Lords, the three appeals before the House raise a common question of principle. What is the extent of the liability of a valuer who has provided a lender with a negligent overvaluation of the property offered as security for the loan? The facts have two common features. The first is that if the lender had known the true value of the property, he would not have lent. The second is that a fall in the property market after the date of the valuation greatly increased the loss which the lender eventually suffered.
The Court of Appeal (Banque Bruxelles Lambert SA v Eagle Star Insurance Co. Ltd., [1995] 2 All ER 769), [1995] QB 375 decided that in a case in which the lender would not otherwise have lent (which they called a ‘no-transaction’ case), he is entitled to recover the difference
between the sum which he lent, together with a reasonable rate of interest, and the net sum which he actually got back. The valuer bears the whole risk of a transaction which, but for his negligence, would not have happened. He is therefore liable for all the loss attributable to a fall in the market. They distinguished what they called a ‘successful transaction’ case, in which the evidence shows that if the lender had been correctly advised, he would still have lent a lesser sum on the same security. In such a case, the lender can recover only the difference between what he has actually lost and what he would have lost if he had lent the lesser amount. Since the fall in the property market is a common element in both the actual and the hypothetical calculations, it does not increase the valuer’s liability.
The valuers appeal. They say that a valuer provides an estimate of the value of the property at the date of the valuation. He does not undertake the role of a prophet. It is unfair that merely because for one reason or other the lender would not otherwise have lent, the valuer should be saddled with the whole risk of the transaction, including a subsequent fall in the value of the property.
Much of the discussion, both in the judgment of the Court of Appeal and in argument at the Bar, has assumed that the case is about the correct measure of damages for the loss which the lender has suffered . . .
I think that this was the wrong place to begin. Before one can consider the principle on which one should calculate the damages to which a plaintiff is entitled as compensation for loss, it is necessary to decide for what kind of loss he is entitled to compensation. A correct description of the loss for which the valuer is liable must precede any consideration of the measure of damages. For this purpose it is better to begin at the beginning and consider the lender’s cause of action.
The lender sues on a contract under which the valuer, in return for a fee, undertakes to provide him with certain information. Precisely what information he has to provide depends, of course, upon the terms of the individual contract. There is some dispute on this point in respect of two of the appeals . . . But there is one common element which everyone accepts. In each case the valuer was required to provide an estimate of the price which the property might reasonably be expected to fetch if sold in the open market at the date of the valuation.
There is again agreement on the purpose for which the information
was provided. It was to form part of the material on which the lender was to decide whether, and if so how much, he would lend. The valuation tells the lender how much, at current values, he is likely to recover if he has to resort to his security. This enables him to decide what margin, if any, an advance of a given amount will allow for: a fall in the market; reasonably foreseeable variance from the figure put forward by the valuer (a valuation is an estimate of the most probable figure which the property will fetch, not a prediction that it will fetch precisely that figure); accidental damage to the property and any other of the contingencies which may happen. The valuer will know that if he overestimates the value of the property, the lender’s margin for all these purposes will be correspondingly less.
On the other hand, the valuer will not ordinarily be privy to the other considerations which the lender may take into account, such as how much money he has available, how much the borrower needs to borrow, the strength of his covenant, the attraction of the rate of interest, or the other personal or commercial considerations which may induce the lender to lend.
Because the valuer will appreciate that his valuation, though not the only consideration which would influence the lender, is likely to be a very important one, the law implies into the contract a term that the valuer will exercise reasonable care and skill. The relationship between the parties also gives rise to a concurrent duty in tort (see Henderson v Merrett Syndicates Ltd, Arbuthnot v Feltrim Underwriting Agencies Ltd, Deeny v Gouda Walker Ltd (in liq) [1994] 3 All ER 506, [1995] 2 AC 145.) But the scope of the duty in tort is the same as in contract.
A duty of care such as the valuer owes does not, however, exist in the abstract. A plaintiff who sues for breach of a duty imposed by the law (whether in contract or tort or under statute) must do more than prove that the defendant has failed to comply. He must show that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered. . . . In the present case, there is no dispute that the duty was owed to the lenders. The real question in this case is the kind of loss in respect of which the duty was owed.
How is the scope of the duty determined? In the case of a statutory duty, the question is answered by deducing the purpose of the duty from the language and context of the statute (see Gorris v Scott (1874) LR 9
Ex Ch 125). In the case of tort, it will similarly depend upon the purpose of the rule imposing the duty. Most of the judgments in Caparo [[1990] 2 AC 605] are occupied in examining the Companies Act 1985 to ascertain the purpose of the auditor’s duty to take care that the statutory accounts comply with the Act . . . The scope of the duty, in the sense of the consequences for which the valuer is responsible, is that which the law regards as best giving effect to the express obligations assumed by the valuer: neither cutting them down so that the lender obtains less than he was reasonably entitled to expect, nor extending them so as to impose on the valuer a liability greater than he could reasonably have thought he was undertaking.
What therefore should be the extent of the valuer’s liability? The Court of Appeal said that he should be liable for the loss which would not have occurred if he had given the correct advice. The lender having, in reliance on the valuation, embarked upon a transaction which he would not otherwise have undertaken, the valuer should bear all the risks of that transaction, subject only to the limitation that the damage should have been within the reasonable contemplation of the parties.
There is no reason in principle why the law should not penalise wrongful conduct by shifting on to the wrongdoer the whole risk of consequences which would not have happened but for the wrongful act. Hart and Honore in Causation in the Law, 2nd ed. (1985) p 120 say that it would, for example, be perfectly intelligible to have a rule by which an unlicensed driver was responsible for all the consequences of his having driven, even if they were unconnected with his not having a licence. One might adopt such a rule in the interests of deterring unlicenced driving. But that is not the normal rule. One may compare, for example, Western Steamship Co Ltd v NV Koninklijk Rotterdamsche Lloyd, The Empire Jamaica [1955] 3 All ER 60 at 61, [1955] P 259 at 264, in which a collision was caused by a ‘blunder in seamanship of . . . a somewhat serious and startling character’ by an uncertificated second mate. Although the owners knew that the mate was not certificated and it was certainly the case that the collision would not have happened if he had not been employed, it was held in limitation proceedings that the damage took place without the employers’ actual fault or privity’ because the mate was in fact experienced and (subject to this one aberration) competent. The collision was not, therefore, attributable to
his not having a certificate. The owners were not treated as responsible for all the consequences of having employed an uncertificated mate, but only for the consequences of his having been uncertificated.
Rules which make the wrongdoer liable for all the consequences of his wrongful conduct are exceptional and need to be justified by some special policy. Normally the law limits liability to those consequences which are attributable to that which made the act wrongful. In the case of liability in negligence for providing inaccurate information, this would mean liability for the consequences of the information being inaccurate.
I can illustrate the difference between the ordinary principle and that adopted by the Court of Appeal by an example. A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.
On the Court of Appeal’s principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor’s bad advice, because it would have occurred even if the advice had been correct.
The Court of Appeal summarily rejected the application of the latter principle to the present case, saying ([1995] 2 All ER 769 at 840, [1995] QB 375 at 404):
`The complaint made and upheld against the valuers in these cases is . . . not that they were wrong. A professional opinion may be wrong without being negligent. The complaint in each case is that the valuer expressed an opinion that the land was worth more than any careful and competent valuer would have advised.’
I find this reasoning unsatisfactory. It seems to be saying that the valuer’s liability should be restricted to the consequences of the
valuation being wrong if he had warranted that it was correct, but not if he had only promised to use reasonable care to see that it was correct. There are, of course, differences between the measure of damages for breach of warranty and for injury caused by negligence, to which I shall return. In the case of liability for providing inaccurate information, however, it would seem paradoxical that the liability of a person who warranted the accuracy of the information should be less than that of a person who gave no such warranty but failed to take reasonable care.
Your Lordships might, I would suggest, think that there was something wrong with a principle which, in the example which I have given, produced the result that the doctor was liable. What is the reason for this feeling? I think that the Court of Appeal’s principle offends common sense because it makes the doctor responsible for consequences which, though in general terms foreseeable, do not appear to have a sufficient causal connection with the subject matter of the duty. The doctor was asked for information on only one of the considerations which might affect the safety of the mountaineer on the expedition. There seems no reason of policy which requires that the negligence of the doctor should require the transfer to him of all the foreseeable risks of the expedition.
I think that one can to some extent generalise the principle upon which this response depends. It is that a person under a duty to take reasonable care to provide information on which someone else will decide upon a course of action is, if negligent, not generally regarded as responsible for all the consequences of that course of action. He is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties. It is therefore inappropriate either as an implied term of a contract or as a tortious duty arising from the relationship between them.
The principle thus stated distinguishes between a duty to provide information for the purpose of enabling someone else to decide upon a course of action and a duty to advise someone as to what course of action he should take. If the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent,
he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.
[…..
. . . The principle that a person providing information upon which another will rely in choosing a course of action is responsible only for the consequences of the information being wrong is not without exceptions. This is not the occasion upon which to attempt a list, but fraud is commonly thought to be one . . .
The measure of damages in an action for breach of a duty to take care to provide accurate information must also be distinguished from the measure of damages for breach of a warranty that the information is accurate. In the case of breach of a duty of care, the measure of damages is the loss attributable to the inaccuracy of the information which the plaintiff has suffered by reason of having entered into the transaction on the assumption that the information was correct. One therefore compares the loss he has actually suffered, with what his position would have been if he had not entered into the transaction and asks what element of this loss is attributable to the inaccuracy of the information. In the case of a warranty, one compares the plaintiff’s position as a result of entering into the transaction with what it would have been if the information had been accurate. Both measures are concerned with the consequences of the inaccuracy of the information, but the tort measure is the extent to which the plaintiff is worse off because the information was wrong, whereas the warranty measure is the extent to which he would have been better off if the information had been right . . .
The other cases cited by the Court of Appeal and counsel for the respondent plaintiffs fall into two categories. The first comprises those cases concerned with the calculation of the loss which the plaintiff has suffered in consequence of having entered into the transaction. They do not address the question of the extent to which that loss is within the scope of the defendant’s duty of care. The calculation of loss must, of course, involve comparing what the plaintiff has lost as a result of making the loan with what his position would have been if he had not
made it. If, for example, the lender would have lost the same money on some other transaction, then the valuer’s negligence has caused him no loss. Likewise, if he has substantially overvalued the property, so that the lender stands to make a loss if he has to sell the security at current values, but a rise in the property market enables him to realise enough to pay off the whole loan, the lender has suffered no loss. But the question of whether the lender has suffered a loss is not the same as the question of how one defines the kind of loss which falls within the scope of the duty of care. The Court of Appeal justified its view on the latter question by an appeal to symmetry: ‘if the market moves upwards, the valuer reaps the benefit; if it moves downwards, he stands the loss.’ (see [1995] 2 All ER 769 at 856, [1995] QB 375 at 421). This seems to me to confuse the two questions. If the market moves upwards, it reduces or eliminates the loss which the lender would otherwise have suffered. If it moves downwards, it may result in more loss than is attributable to the valuer’s error. There is no contradiction in the asymmetry. A plaintiff has to prove both that he has suffered loss and that the loss fell within the scope of the duty. The fact that he cannot recover for loss which he has not suffered does not entitle him to an award of damages for loss which he has suffered, but which does not fall within the scope of the valuer’s duty of care.
The distinction between the ‘no-transaction’ and ‘successful transaction’ cases is, of course, quite irrelevant to the scope of the duty of care. In either case, the valuer is responsible for the loss suffered by the lender in consequence of having lent upon an inaccurate valuation. When it comes to calculating the lender’s loss, however, the distinction has a certain pragmatic truth. I say this only because, in practice, the alternative transaction which a defendant is most likely to be able to establish is that the lender would have lent a lesser amount to the same borrower on the same security. If this was not the case, it will not ordinarily be easy for the valuer to prove what else the lender would have done with his money. But in principle there is no reason why the valuer should not be entitled to prove that the lender has suffered no loss, because he would have used his money in some altogether different, but equally disastrous venture. Likewise the lender is entitled to prove that, even though he would not have lent to that borrower on that security, he would have done something more advantageous than
keep his money on deposit: a possibility contemplated by Lord Lowry in Swingcastle Ltd v Alastair Gibson (a firm) [1991] 2 All ER 353 at 365, [1991] 2 AC 223 at 239. Every transaction induced by a negligent valuation is a ‘no-transaction’ case in the sense that ex hypothesi the transaction which actually happened would not have happened. A `successful transaction’ in the sense in which that expression is used by the Court of Appeal (meaning a disastrous transaction which would have been somewhat less disastrous if the lender had known the true value of the property) is only the most common example of a case in which the court finds that, on the balance of probability, some other transaction would have happened instead. The distinction is not based on any principle and should, in my view, be abandoned. The second category of cases relied upon by the plaintiffs concerns the question of whether the plaintiff’s voluntary action in attempting to extricate himself from some financial predicament in which the defendant has landed him negatives the causal connection between the defendant’s breach of duty and the subsequent loss. These cases are not concerned with the scope of the defendant’s duty of care. They are all cases in which the reasonably foreseeable consequences of the plaintiff’s predicament are plainly within the scope of the duty. The question is rather whether the loss can be said to be a consequence of the plaintiff being placed in that predicament. The principle which they apply is that a plaintiff’s reasonable attempt to cope with the consequences of the defendant’s breach of duty does not negative the causal connection between that breach of duty and the ultimate loss. This is the principle of which, in the sphere of physical damage, Lord v Pacific Steam Navigation Co Ltd, The Oropesa [1943] 1 All ER 211, [1943] P 32 is perhaps the best-known example . . .
I turn now to the various theories suggested by the appellant defendants for defining the extent of the valuer’s liability. One was described as the ‘cushion theory’ and involved calculating what the plaintiff would have lost if he had made a loan of the same proportion of the true value of the property as his loan bore to the amount of the valuation. The advantage claimed for this theory was that it allowed the lender to claim loss caused by a fall in the market, but only to the extent of the proportionate margin or ‘cushion’ which he had intended to allow himself. But this theory allows the damages to vary according to a
decision which the lender made for a different purpose, namely, in deciding how much he should lend on the value reported to him. There seems no justification for deeming him, in the teeth of the evidence, to have been willing to lend the same proportion on a lower valuation.
An alternative theory was that the lender should be entitled to recover the whole of his loss, subject to a ‘cap’ limiting his recovery to the amount of the overvaluation. This theory will ordinarily produce the same result as the requirement that loss should be a consequence of the valuation being wrong, because the usual such consequence is that the lender makes an advance which he thinks is secured to a correspondingly greater extent. But I would not wish to exclude the possibility that other kinds of loss may flow from the valuation being wrong and in any case, as Mr Sumption QC said on behalf of the defendants York Montague Ltd, it seems odd to start by choosing the wrong measure of damages (the whole loss) and then correct the error by imposing a cap. The appearance of a cap is actually the result of the plaintiff having to satisfy two separate requirements: first, to prove that he has suffered loss, and, secondly, to establish that the loss fell within the scope of the duty he was owed.
…..I turn now to the facts of the three cases. In South Australia Asset Management Corpn v York Montague Ltd, the lenders on 3 August 1990 advanced Dim. on a property valued at £15m. May J found that the actual value at the time was £5m. On 5 August 1994 the property was sold for £2,477,000. May J quantified the loss at £9,753,927.99 and deducted 25% for the plaintiff’s contributory negligence. The consequence of the valuation being wrong was that the plaintiff had 10m. less security than they thought. If they had had this margin, they would have suffered no loss. The whole loss was therefore within the scope of the defendants’ duty. It follows that the appeal must be dismissed. £75m on the security of a property valued by the defendants at £2.5m. The judge found that the correct value was between £1.8m and £1.85m. It was sold in February 1992 for £950,000. Gage J quantified
the lenders’ loss (including unpaid interest) at £1,309,876.46 and awarded this sum as damages.
In my view the damages should have been limited to the consequences of the valuation being wrong, which were that the lender had £700,000 or £650,000 less security than he thought. The plaintiffs say that the situation produced by the overvaluation was not merely that they had less security, but also that there was a greater risk of default. But the valuer was not asked to advise on the risk of default, which would depend upon a number of matters outside his knowledge, including the personal resources of the borrower. The greater risk of default, if such there was, is only another reason why the lender, if he had known the true facts, would not have entered into the particular transaction. But that does not affect the scope of the valuer’s duty.
I would therefore allow the appeal and reduce the damages to the difference between the valuation and the correct value. If the parties cannot agree whether on the valuation date the property was worth £1.8m. or £1.85m. or some intermediate figure on the date of valuation, the question will have to be remitted to the trial judge for decision on the basis of the evidence called at the trial.
In Nykredit Mortgage Bank plc v Edward Erdman Group Ltd the lenders on 12 March 1990 advanced £2.45m on the security of a property valued by the defendants at £3.5m. The correct value was said by Judge Byrt QC sitting as a judge of the Queen’s Bench Division to be £2m or at most £2.375m. The price obtained on a sale by auction in February 1993 was £345,000. The judge quantified the loss (including unpaid interest) at £3,058,555.52 and gave judgment for the plaintiffs in this sum . . .
I would, therefore, allow the appeal and substitute for the judge’s award of damages a figure equal to the difference between £3.5m and the true value of the property at the date of valuation. The judge appears to have been inclined to fix the latter figure at £2m. The reference to £2.35m was based upon a concession made by plaintiffs’ counsel on the basis that, for the purposes of calculating the damages according to the principle adopted by the Court of Appeal, it did not matter one way or the other. However, if the parties cannot agree upon the figure, it will also have to be remitted to the judge for determination on the evidence adduced at the trial.
O’Connell v Building & Allied Trades Union & ors
Breach Constitutional Rights
[2018] IEHC 815 (12 April 2018)
EX TEMPORE JUDGMENT of Mr. Justice Tony O’Connor delivered on the 12th day of April, 2018
1. The Court notes that Mr. O’Connell is not in court and an effort was made to contact Mr. O’Connell to remind him about the delivery of the judgment as stated earlier this afternoon following the conclusion of the hearing. In any event, the digital audio recording will be available of this judgment and there is a stenographer here as well.
Introduction
2. The Court of Appeal, by Order made on the 2nd of December, 2016, found that the first named defendant called BATU had breached the plaintiff’s constitutional right to earn his livelihood from the 1st January, 2000, and ordered that the plaintiff’s claim be remitted to the High Court for the assessment of the quantum of damages to which the plaintiff is entitled by reason only, and I stress the word only, of the said breach by BATU. The plaintiff was also ordered to give, by the 27th January, 2017, particulars of the loss and damage which he claims to have arisen after the 1st January, 2000, and to have been caused by the said breach, together with the facts relied upon in support of his alleged loss and damage.
3. The plaintiff’s claims founded on the tort of intimidation and conspiracy were dismissed by the Court of Appeal. The 62 page judgment of the Court of Appeal, having neutral citation [2016] IECA 338, led to five specific conclusions. The findings of Ryan J. in his judgment, having neutral citation [2014] IEHC 360, in favour of the plaintiff on three issues could not be sustained on the evidence, according to the Court of Appeal, and thereby, the claims founded on the specific tort of intimidation and conspiracy were dismissed.
4. The Court of Appeal upheld a finding of Ryan J. that the claim against the sixth named defendant, CIF, that is the Construction Industry Federation, was statute barred while it concluded in favour of the plaintiff’s appeal as follows, and I quote:-
“Third, the plaintiff never received a union card after the probationary period. The trial judge was entitled to conclude on the available evidence that no valid justification for the failure to admit an otherwise prima facie qualified person from membership had been advanced by the Union”, that is, BATU.
“Fifth, the trial judge was entitled to find that the Union (but not its individual officials) had infringed the plaintiff’s right to earn a livelihood by excluding him from membership in circumstances where it enjoyed an effective monopoly control of access to the relevant market and by then informing employers that he was not a member, leading them to dismiss him or not to employ him further because he was not a member of BATU. The assessment of damages in respect of this breach of constitutional rights will have to be remitted to the High Court for determination”.
Background
5. Ryan J., at paragraphs 1 to 9 of his judgment, described the scenario leading to the issue of the plenary summons hearing on the 16th October, 2002. Paragraphs 10 to 21 summarise the plaintiff’s claim, according to the pleadings. The detailed judgment of Peart J. for the Court of Appeal which thoroughly reviewed the evidence in the High Court binds and guides this Court in its findings and orders.
Particulars of loss
6. Despite the specific terms of the order about furnishing particulars of loss and the facts in support, the plaintiff, who is by now well versed in procedures of the Superior Courts, as shown by the citations quoted earlier in this judgment, in addition to the judgment reported at [2012] 2 I.R. 371, and the Supreme Court determinations, having references [2017] IESC DET 22 and 34, did not furnish particulars until after further directions by Costello J. in January, 2018. Then, those were further refined or corrected after lunch yesterday, the 11th April, 2018, at this Court’s request, because of the rather unfocused approach taken by the plaintiff in categorising the headings for damages to be addressed by this Court in his opening.
Loss of earnings
7. It transpires from the sworn evidence of the plaintiff on the 11th April, 2018, that he got advice from a person in the Citizens Advice Bureau about formulating his claim for loss of earnings and he then, rather summarily, read out yesterday the specific claims for loss of earnings for the period from January 2000 to December 2008, which he compiled. In short, the total loss of gross, and I emphasise the word gross, earnings were stated to be €368,689.72 for those years with some unspecified claim for pension loss.
8. The plaintiff took the approach that he would have been a full time employee of Davin Builders, Frank McGrath or another builder, based on wages identified in P45s, were it not for the breach of his constitutional right to earn his livelihood. The only allowances identified to reduce the gross figures for those years were the income in the Notices of Assessment for those years which ranged, according to the plaintiff, from €3,491.78 in 2001, €15,184 in 2002, €16,500 in 2003, and €20,085 in 2004, and lower sums for other years.
Other categories of damages
(i) Loss of opportunities
9. The plaintiff testified that he lost out on job opportunities, also without giving any particulars in advance or without specifics, in evidence yesterday.
(ii) Future loss
10. While the plaintiff accepted that from 2008 onwards was a bleak period for builders and that he could not attribute loss of earnings when there was no work available due to the collapse in the building industry, he still asserted a claim. In the end, the plaintiff admitted that he was not in a position to quantify or give evidence about a loss for that bleak period or for future loses.
(iii) Exemplary Damages
11. The plaintiff testified that he did not know that he was going to win in his claim and that he believed the defendant union, BATU, should be shown up by an award of exemplary damages for bringing the trade union movement into disrepute. He said BATU have the privilege of a monopoly, which it abused, causing him career and pension entitlement damage.
(iv) Aggravated Damages
12. The plaintiff also maintained that he was now seeking aggravated damages due to the conduct of the defendant, and particularly, the continued lack of an apology.
13. On cross examination by Mr. Sweeney, counsel for BATU, the plaintiff was unable to explain the unemployment assistance of €14,831.70 for the period January 2001 to January 2002, which Ms. Ruth Nugent, Officer with the Department of Social Protection, verified. In other words, the plaintiff’s claim for 2001 omitted to include this sum to show mitigation of the loss which he advanced.
14. The plaintiff appeared cooperative, polite and understanding, but the Court detected some coyness on his part when asked about holding a revenue Independent Contracting Certificate for periods. He conveniently said that he could not remember. He also answered the question about seeking work outside Limerick by reference to his commitment to a young daughter and that he later got work up country. In fairness, the plaintiff accepted that he was never entitled to a long period of employment like that offered or which could be offered by such firms as SISK or Hegarty. He was, and is, very dependent on the property market for work opportunities.
Conclusion
15. It is unfortunate that the plaintiff is a lay litigant because it contributed to his apparent inability to present what is needed for this Court to quantify the specific net loss which he’s obliged to prove on the balance of probabilities. This Court is not a court of inquisition, but administers justice within an adversarial process. The Court cannot take a guess or go off to do its own calculations. To this end, the plaintiff has failed to satisfy this Court as to his specific net loss and the Court remains curious, if not sceptical, about the claim for 2001 in particular, given the unemployment assistance of nearly €15,000 with some €24,000 in earnings from PAYE and self employment block laying services identified in the Notice of Assessment for the year ending the 5th April, 2001.
16. Finality must be brought, and there is no obligation on BATU to assist the plaintiff in formulating his claim. In the circumstances, this Court cannot make any assessment of the net loss of earnings of the plaintiff based on the evidence adduced. I accept Mr. Sweeney’s submission that the claim for loss of earnings is speculative.
17. Furthermore, Mr. Ger Kennedy, an official from SIPTU with direct experience of the construction industry in Limerick and nearby counties concisely explained the label of “journeyman” for block layers such as the plaintiff – they move as the opportunities present themselves, and rates for subsistence or travel can often be offered or agreed. Mr. Kennedy was not challenged to any real extent by Mr. O’Connell in relation to his evidence about the following:
(i) the limited lifespan of work for block layers in any particular project;
(ii) the increasing introduction of work opportunities through agencies as opposed to the plaintiff’s previous employers, and the use of the Independent Certificates from 2002;
(iii) the effective lockout by the CIF in 2003 in Limerick;
(iv) the limited influence of BATU outside the city limits of Limerick;
(v) the change to different building techniques which has reduced the demand for bricklayers since the early part of the first decade of this millennium;
(vi) the absence of new residential developments since the crash in 2008, and moreover, the slowdown in Limerick which started from in or around 2003.
18. Taking all of the evidence into account and bearing in mind the burden of proof which rests with the plaintiff, I find that the impact of BATU’s breach for the plaintiff’s right to earn a living was confined to Limerick and ran from 2000 to 2003. In this respect, I am tracking the wording of Ryan J. at paragraph 139 of his judgment, which is at page 45.
19. In conclusion, the plaintiff has failed to satisfy the Court as to any specific net loss or that he took action to offset his perceived loss by seeking work outside Limerick even allowing for the ill described wish or need to contribute to the care of his young daughter.
20. Moreover, the plaintiff’s reply in cross examination that he was originally not interested in damages and was more focused in getting his job back apparently fed into his lack of adherence to the directions of Ryan J. at paragraph 139 of his judgment, the Court of Appeal Order, as cited earlier, and the thrust of what was intended by Costello J. in January 2018.
Damages
21. I will deal with general damages later, which is the only form of damages which appears to be available for the Court to consider in regard to the plaintiff’s claim.
22. Having set out earlier in this judgment the plaintiff’s “Other” categories, I will now explain why each of them cannot be considered for the awarding of damages by this Court:-
(i) Loss of opportunities
23. The plaintiff did not advance evidence to satisfy the Court that he lost out on any particular opportunity.
(ii) Future loss
24. This was effectively abandoned due to the plaintiff’s admission that he could not formulate same.
(iii) Exemplary damages
25. I am not in a position to adjudicate on the degree of oppression or arbitrariness of the breach, which are two elements to be considered when considering exemplary damages, and the onus rests on the plaintiff to satisfy the Court in that regard. Notwithstanding, Mr. Sweeney, counsel for BATU, rightly emphasised that the claim for exemplary damages was never pleaded or particularised before this assessment hearing.
(iv) Aggravated damages
26. Apart from repeating the emphasis of Mr. Sweeney about the absence of pleading or particulars in this regard, the absence of any apology for the breach, which occurred some 18 to 15 years ago in a confined market, hardly merits any noting despite the plaintiff’s understandable distress about certain events that long ago. Although easy for others, including myself, to encourage the plaintiff to move on, there comes a time for any aggrieved person to lose out on the expectation for an apology in respect of the subject events so many years ago.
Distress
27. The plaintiff was given leave by this Court to call Professor O’Moore in the interests of bringing closure, but not disregarding the rights of a party, the defendant here, to be prepared to test and interrogate and challenge the evidence, and particularly in view of the directions given by the Court and the Court of Appeal. In effect, I said that Professor O’Moore could be called, but that I would disregard her evidence, which I do. Therefore, the plaintiff, by his own decision not to furnish particulars or give evidence about the mental distress for which he now seeks damages, is the author of his own downfall in this regard. The plaintiff’s position as a lay litigant cannot put himself into a better position than if he was represented by qualified lawyers.
General damages
28. I have identified the following judgments as a possible assistance to me in assessing general damages for the breach of the plaintiff’s constitutional rights in excluding the plaintiff from access to the relevant market, i.e. block laying in Limerick, from 2000 to 2003:-
(i) Kearney v. Minister for Justice , [1986] IR 116, where IR£25 was awarded by Costello J. for infringing the right to communicate arising from a prison’s failure to deliver letters to a prisoner promptly.
(ii) Kennedy v. Ireland , [1987] IR 587, where IR£20,000 was awarded each to two journalists from the unauthorized tapping of their phones and IR£10,000 to a non journalist.
(iii) Sullivan v. Boylan Contractors (No.2), [2013] 1 IR 510; [2013] IEHC 104, where Hogan J. awarded €22,500 for breach of the constitutional right to the inviolability of the dwelling of the plaintiff in that case.
29. On the scale, the breach in this case is far less severe than the breaches in the last two mentioned cases, and significantly more than that of number one. Considering all of the matters which have been put before the Court and having read the judgments, I award the plaintiff €15,000 in respect of general damages for the breach of constitutional rights.
Kenny v Crowley
Personal Injuries
Supreme Court, June 21, 2006Judgment delivered the 21st day of June 2006 by Denham J.
1. Appeal
This appeal relates to an assessment of damages. James Kenny, the plaintiff/appellant, hereinafter referred to as the plaintiff, submitted that the High Court erred in the assessment. Liability is not an issue.
2. Collision
The case arose out of a collision with cattle. The plaintiff was driving his car on the evening of 10th April, 2000, at Rathlee, Easkey, Co. Sligo, when his car collided with cattle, owned by John Cowley, the defendant/respondent, hereinafter referred to as the defendant, which had strayed and blocked the highway.
3. Special Damages
The matter came before the High Court on the 16th and 20th July, 2004. Special damages were agreed at €4,480.
4. General Damages
At issue in the High Court were general damages, a claim arising out of physical injuries and a claim for loss of earnings in the future. No claim was made for loss of earnings to the date of the High Court hearing.
5. High Court judgment
The High Court stated that the plaintiff had a perfectly genuine claim against the defendant for his injuries sustained in the accident. The learned High Court judge expressed concern in relation to a claim for €550,000 for loss of employment into the future in view of the employment history of the plaintiff prior to the accident. The High Court stated, quite correctly in my view, that the plaintiff was to be treated under the “eggshell” rule. The learned High Court judge accepted that the plaintiff suffered pain in the past and would in the future. It was noted that the plaintiff made no claim for loss of wages in the past. The High Court agreed that there was an entitlement for loss of wages in the future based on evidence, which, however, the learned High Court judge considered was not good enough and he did not allow for loss of wages in the future. As to general damages, for the injuries sustained to date and into the future, the High Court allowed a sum of €90,000. Special damages being agreed at €4,480, there was a judgment for €94,480.
6. Grounds of appeal
Against that judgment the plaintiff has appealed to this Court. Ten grounds of appeal were filed, as set out below:
(a) The learned Trial Judge failed to have proper regard to the evidence adduced by and on behalf of the plaintiff in respect of his injuries and losses.
(b) The learned Trial Judge erred in fact and in law in assessing general damages for the past and the future in the amount of €90,000.00 given the uncontroverted evidence of the effects of the serious injuries on the plaintiff.
(c) The learned Trial Judge erred in fact and in law in rejecting the plaintiff’s claim for:
(i) loss of future income for the plaintiff and or in the alternative;
(ii) loss of opportunity in the future for the plaintiff.
(d) The learned Trial Judge was wrong in law in refusing to apportion the award of general damages into categories for general damages to date and general damages into the future.
(e) The learned Trial Judge did not give the plaintiff a fair trial on any of the relevant issues before the Court.
(f) The learned Trial Judge erred in law and in fact when referring in his judgment to a claim of the plaintiff for €550,000.00 and in his determination that “the plaintiff has chosen to hoodwink” the Court.
(g) The learned Trial Judge erred in law and in fact in rejecting the evidence of the Vocational Assessment witness Consultant and in his assessment of her evidence.
(h) The learned Trial Judge erred in law and in fact in his judgment in finding and referring to the possibility that “this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff” when there was no evidence or suggestion by the defendant or by the plaintiff to the learned Trial Judge of same.
(i) The learned Trial Judge erred in his treatment of and the weight which he attached to the questions of Senior Counsel for the Defendant in cross-examination of the plaintiff and particularly when the defendant failed to call the witnesses purportedly available to the Defendant to support the allegations of Senior Counsel for the defendant in cross-examination.
(j) The learned Trial Judge erred in law and in the exercise of his discretion when disallowing the costs of the second day of the trial and the expense of a witness and proposed witness for the Trial particularly when:
(i) the trial only commenced at 2 p.m. on Friday the 16th of July 2004 through no fault of the plaintiff.
(ii) the trial was interrupted by the learned Trial Judge for approximately ten minutes on Friday the 16th July 2004 in order to ensure that the parties agreed a timescale for the adducing of evidence from the Vocational Assessment consultant,
(iii) the trial ended at 2 p.m. on Tuesday the 20th July 2004 when Junior Counsel for the defendant without any advance warning indicated that no evidence would be called on behalf of the defendant.
7. Issues
7.1 Special Damages
There is no issue as to the special damages in this case; they remain at the figure of €4,480.
7.2 General Damages
The issue for the Court is one of general damages. The general damages relate essentially to loss and damage arising from the injury to his eye and loss of earnings into the future.
7.3 Damage to eye
First I shall consider the issue relating to the damage to the plaintiff’s right eye. As the learned trial judge stated, the plaintiff has to be treated under the eggshell principle. This arises because of the previous problems with his left eye. Prior to the accident the plaintiff had a lazy left eye and he depended on his right eye. His right eye was damaged consequent on the accident, and he has now very limited sight in it. In addition he has double vision which affects his left eye and gives him dizziness. He uses a blank darkened lens to cover his right eye as this cuts down on the double vision and dizziness. He is now dependent on the left eye. However, the sight in this eye is not good.
The uncontroverted medical evidence before the High Court was that:
“This patient has a background of high myopia or shortsight and a lazy left eye (amblyopia i.e. impaired sight). He sustained a whiplash injury which was followed two days later by a retinal detachment in the right which required surgical repair. He has been left with impaired vision in the right and existing impaired vision in the left. He has a constant large right upward deviation of the eye, resulting in constant doublevision and an unsightly appearance.
He reports being able to function as a mechanic prior to the accident but now his vision is poor in both eyes and he has doublevision in them as well and both of these factors impair his ability to work, so he has become unemployed and cannot drive.
The injury itself did not directly cause the retinal detachment but did so indirectly by the whiplash injury causing severe shaking of the head and disturbance of the vitreous jelly in the right eye leading to a tear in the retina. The patient was already at risk from retinal tears because of his high myopia but probably would not have developed a retinal detachment if he had not sustained a whiplash injury. The doublevision is partly due to his impaired sight and pre-existing lazy eye. However, the restriction of movement of the right eye and the drifting upwards of this eye is also a well-known complication of retinal detachment surgery. I did not have the opportunity to assist this man’s motility prior to his retinal detachment or his injury, so I cannot describe the relative contributions of the various factors involved in this. At any rate, all of the factors involved are related directly or indirectly to his injury.
He is now developing a cataract in the right eye, which will further impair his vision in this eye increasingly over the next couple of years.
I do not believe the vision in his previously lazy left eye will improve spontaneously because the impairment of vision in the right eye is not sufficiently severe to allow the left eye to take over.
This patient has severe visual impairment in his previously better eye (the right eye) as a result of retinal detachment following a whiplash injury. In addition to impaired vision in each eye, he has debilitating and constant doublevision. This has prevented him from working or driving. It is a constant source of difficulty for him in everyday life. Closing one eye to get rid of the doublevision further impairs his overall vision by effectively making him one-eyed. The better of the two eyes has poor vision of a level no better than 6/12, which would be barely acceptable for driving, if it were present in both eyes. The outlook for visual rehabilitation is poor. Vision in the right eye will not improve further in my view and that in the left is unlikely to do so either. His doublevision may be amenable to surgical correction but it may require several operations and there is approximately a 50-60% chance of him achieving single vision with or without the use of additional prisms in his glasses.
The reason for this poor success rate is that eye muscle problems developing after retinal detachment surgery are notoriously difficult to solve and the fact that his vision is poor in both eyes mitigates against him achieving binocular vision, which requires good visual acuity in each eye.
. . . “.
Thus the plaintiff is essentially in the position where an eye has been lost, and he is relying on the vision of an eye with poor sight, and he suffers from double vision.
As to the current value of a case where an eye is lost, I sought to refer to the P.I.A.B. Valuation Book. However, I understand that it does not quantify damages for the loss of an eye, as yet. From previous experience with such cases it appears to me that a figure of €90,000 is significantly too low a figure for such damage and loss, especially in the circumstances of the plaintiff.
In addition, the plaintiff suffered other less serious injuries which should be considered. These injuries were soft tissue injuries to his back and neck and a depression which followed the events.
Consequently, considering both the eye and other injuries I am satisfied that there was an error in the level of damages awarded by the High Court.
7.4 Future loss of earnings
The second major issue is the value of the loss of the plaintiff’s future earnings. In the High Court counsel for the defendant objected to an actuarially based claim.
The learned High Court judge held that on the authority of Reddy v. Bates [1983] I.R. 141 that the basis for mounting an actuarial claim had not been made out and he deemed the defendant’s objection sustained. It was directed that Mr. Logan not be called to give evidence. The learned High Court judge stated that this did not mean that there was not a claim into the future, but he held it would not be on actuarial evidence.
I would affirm this decision of the High Court. There was no grounds laid for an actuarial approach to the assessment.
The position as to loss of earnings in the future has to be considered in all the circumstances of the case. It was stated by the plaintiff that following serious problems with his kidneys in 1995/1996 he had largely ceased to work and only ‘tipped around’ mending engines locally for friends for which he received occasional payment. The evidence was that for three or four years prior to the accident the plaintiff was in receipt of unemployment benefit. However, it was the plaintiff’s case that, in 1999 he had taken all the necessary steps to fit out a workshop and commence the business of marine engine servicing and repair with assistance from his father-in-law and a loan from a local bank.
On behalf of the defendant it was submitted that the plaintiff did not work before the accident and was now doing as much work on engines as he did before the accident.
The evidence established that the plaintiff was not a trained mechanic. Thus a figure of €573,300, based as it was on a trained person’s work, bears no relationship to the situation. The Assessor’s Report of Ann Doherty concluded:
“Save for the accident he could now be working on servicing different engines. Seasonally there are good opportunities for service/repair of marine engines. It is difficult to give a precise level of earnings. The minimum hourly rate if €7.00 and the minimum rate for a mechanic is €15.50 per hour. If working on boats the rates are substantially higher.”
It was on foot of such a conclusion that the figure of €573,300 was promulgated
In her report Ms. Doherty noted that the plaintiff finished formal education with his Group Certificate. She gives his employment history, 1986 – 1991, as part-time fishing with his father, and 1990 – 1991 as ‘Carthys Road and WaterWorks’. It is important to note that she did not state that he was a mechanic. Rather the report recites:
“Over the years he had a keen interest in engines, marine and cars, and gained experience with his cousin. His father-in-law had given him a workshop to start up his own business, repairing engines. He had bought tools and equipment. In 1999 he joined the Coast and Cliff Rescue and was advised he would be sent on courses to deal with boat mechanics etc. He is also paid for call outs”.
In evidence she stated it was not necessary to have a certification as a mechanic to do the work envisaged, that there would be good seasonal business – on the recreational side and for the fishing. She gave evidence that the loss of the right eye, the loss of the eye on the dominant side, would decrease his field of vision and affect his manual dexterity, which would affect him in areas of work. As to work in general in the Killala area, she was of the opinion that his chances were not great. She was of the opinion that with the loss in his right eye, and his difficulties with the left eye, and his geographic location, the effects of the accident were catastrophic, that his chances of getting work were very poor. However, this evidence has to be viewed in the circumstances that he had not been working for years prior to the accident, largely owing to unrelated illness.
Thus, the analysis of loss and damage as regards future earnings is hampered by the previous history, lack of precise information as to his work, the fact that he was ill for several years and off work, the fact that he was receiving State benefit prior to the accident, and the unhelpful evidence as to a mechanic’s earning power which bore no relation to the plaintiff’s situation.
The picture painted is of a man who has not been working consistently, who planned to establish a business but of which there was no evidence, a man who because of illness has been receiving State benefits, but who did do some bit of work, variously described – such as ‘tipping around’. Altogether it was not evidence which established a consistent work pattern of regular paid work. There was evidence that the plaintiff did the odd job before the accident. It may be that he did very few jobs. The evidence was that ‘he did lots of tipping around’, ‘he did the odd job’. The evidence was not such as would base an actuarial report. Consequently, as stated previously, I am satisfied that the learned trial judge was correct in holding that a basis for mounting an actuarial claim had not been made out. The learned trial judge pointed out, correctly in my view, that this did not mean that there was not a claim into the future. Thus, it is necessary, on the evidence before the Court, to consider this aspect of the claim.
While the plaintiff gave evidence of taking initial steps to set up a business, there was no evidence of it being established. I am satisfied that the evidence showed that the plaintiff did some sporadic work which paid him irregular sums of money.
7.5 Hoodwinked
The High Court stated that the plaintiff had chosen to hoodwink the Court with a claim for loss of earnings into the future of €550,000. However, on reading all the evidence, I am satisfied that the plaintiff’s evidence did not advance such a claim. The figure arose from an assessor’s report which was partly based on incorrect information – that the plaintiff was a mechanic.
This concern by the High Court, that it was being hoodwinked, highlights the need for care by legal advisers of a plaintiff in preparation of a case. The law as to exaggerated claims is a matter which should be addressed at the preparation stage by legal advisers with a plaintiff. I am not satisfied that there was any collusion by the plaintiff so as to make an exaggerated claim. While there was absolutely no basis for a claim for €550,000, or indeed any significant sum of money for loss of future earnings, in the circumstances of the case that figure should not be a basis either to award the plaintiff or to penalize him. I am satisfied that this is not a concocted claim, a fraudulent claim. Nor is it a case where the injuries were exaggerated by the claimant because of a subjective belief that the injuries have had a worse effect than they have. Nor is it a case where the plaintiff has deliberately exaggerated his injuries. Thus the decision of Shelley-Morris v. Bus Atha Cliath/Dublin Bus [2003] 1 IR 232 does not apply.
The evidence prepared as to future loss of earnings bore little relationship to the position of the plaintiff. However, from the evidence of the plaintiff, I do not believe he was seeking to establish a fraudulent claim. Problems arose from the preparation of the evidence for the trial. In view of the developing law on the issue of exaggerated claims it behoves legal advisers to address such issues, for, amongst other results, an unrealistic approach to expert evidence which is not relevant could give rise to an entire claim being deemed fraudulent. However, in all the circumstances, it is clear that this is not such a case.
7.6 Settled
On behalf of the plaintiff it was submitted that the High Court erred in finding that this case would have been settled on Friday had an honest and reasonable approach been adopted by the plaintiff. I am satisfied that this was not the situation. Even if it had been, which it was not, it would not have been a factor detrimental to the plaintiff’s claim. The facts were that the case commenced on Friday the 16th and, the evidence not having been completed, it resumed on Tuesday 20th. There were no grounds to indicate that there were any matters relating to a settlement on Friday in which the plaintiff had not taken a reasonable approach.
7.7 Taxation
It may be that there is an issue of taxation on the little work the plaintiff did over the years prior to the accident. This does not necessarily mean that such sums may not be considered by a court on an assessment: Downing v. O’Flynn [2000] 4 IR 383. In the circumstances of this case it is not a relevant factor.
8. Decision
8.1 For the reasons given I am satisfied that the award of €90,000 for general damages was an error. The sum was inadequate for injuries alone, the injuries being primarily the loss of a right eye, the necessity of relying henceforth on an impaired left eye, double vision, soft tissue injuries and depression. It appears to me that a figure of €120,000 would be more appropriate in all the circumstances of the case.
8.2 There was no claim for loss of earnings in the past, and there was no basis for an actuarial based claim for the future. While the plaintiff had a genuine claim there was very little evidence to rely upon. The plaintiff has been on social welfare payments for the past few years. The evidence established he did a little work ‘tipping around’. In the circumstances I am satisfied that the plaintiff is entitled to a limited sum on foot of this loss, which I would determine as €40,000.
8.3 The issue of costs of the High Court should be addressed with the matter of the costs of this appeal, after delivery of the judgment.
9. Conclusion
For the reasons given I would allow the appeal, and in place of the award of the High Court make a total award to the plaintiff in the amount of €164,480.
Yun v MIBI and Tao
PI Various Losses
[2009] IEHC 318, Quirke J.Judgment of Mr. Justice John Quirke delivered on the 17th day of July 2009
The plaintiff, Ms. Yang Yun, was born on the 1st May, 1981, and is now twenty-eight years old. On the 9th May, 2002, just eight days after her twenty-first birthday, she suffered serious personal injuries when a motorcar, driven by the second named defendant, Tommy Xiang Bai Tao, struck the rear of another vehicle on the public highway near Drogheda in County Louth. It then collided with a third vehicle.
The plaintiff was a rear seat passenger sitting directly behind the driver of the vehicle when the collisions occurred. She was wearing a seatbelt. She suffered very serious injuries as a result of the collisions including: (i) a compression fracture of her first lumbar vertebra, and, (ii) a further compressive collapse of the superior anterior end-plate of her first lumbar vertebra with kyphosis in an anterior posterior direction at the level of the fracture.
In these proceedings she claims damages from the defendants to compensate her for her injuries and for the consequent loss and damage which she has sustained.
She claims that the collisions, (and her consequent injuries), were caused by the negligence and breach of duty of the second named defendant, Tommy Xiang Bai Tao.
Her claim against the first named defendant, the Motor Insurers Bureau of Ireland, is made pursuant to the terms of an agreement in writing dated the 21st December, 1988, between the (then) Minister for the Environment and the Motor Insurers Bureau of Ireland.
Both defendants admit that the road traffic collisions on the 9th May, 2002, which caused the plaintiff’s injuries were caused by the negligence of Tommy Xiang Bai Tao and that the plaintiff is entitled to recover damages from both defendants, jointly and severally, to compensate her for her injuries and for the loss and damage which she has sustained and will sustain in the future.
No contributory negligence has been alleged on the part of the plaintiff and, accordingly, the task for this Court is to assess the damages to which the plaintiff is entitled by reason of the admitted negligence and breach of duty of the second named defendant.
FACTUAL EVIDENCE
The following facts have been established in evidence:
1. The plaintiff was born on the 19th May, 1981, in the city of Dalian in Northern China. She is the only child of devoted parents. Her mother is the manager of a hotel and her father is a transport manager working in the same hotel. She was enrolled by her parents in a good local regional school (called the Dongbei University of Finance and Economics) at the age of 6 years and received an excellent first and second level education in China.
A Notarial Certificate issued by her school recorded that, during her final three years at school, (between the 1st September, 1997, and the 15th July, 2000,) she attended the school’s College of Technology and achieved an impressive student’s score list in a variety of subjects including: Chinese; Maths; English; Computer Science; Economics Law; Securities Law; Physical Education and a number of other subjects.
She chose not to proceed to third level education in China. Instead she decided to travel with her boyfriend, Tony Cao Zhi (hereafter “Tony”), to Europe after graduation so that she could learn English and study accountancy.
She wished to graduate with an internationally recognised degree in accountancy. An advertisement in a local newspaper recommended Irish educational institutions and in consequence she chose to travel to Dublin to achieve her objective.
She arrived with Tony in Dublin and commenced an intermediate English language course in the American College in Dublin for six months.
In April, 2002, she enrolled in the English Language Institute on St. Stephen’s Green for a one-year course in English at a cost to her of €2,000.
Thereafter, it was her intention to commence a three-year accountancy degree course in either University College Dublin or Grace’s College preparatory to graduation as a Certified Accountant.
She obtained a student visa which permitted her to work in Ireland for up to twenty hours per week whilst she was resident within this jurisdiction.
2. On 9th May, 2002 the collision occurred which caused her injuries. The car in which she was a passenger was travelling from Dublin towards Drogheda. She heard a bang and felt that her body had been thrown forward and backwards as a result of a very big impact.
She immediately suffered pain in the middle of her back which was so severe that she could not speak and was unable to move. When the car came to a halt she loosened her seatbelt with her left hand and opened the door with her right hand. When she tried to step out and to stand up, she felt unbearable pain in her back and slid down onto the ground close to the damaged car.
After a short time an ambulance came and she was provided with oxygen. Supports were placed on the stretcher which had been provided for her. A paramedic cut off her clothes and touched the area which was swollen. When he did so, she suffered a pain so severe that it was difficult to describe. She was brought to Our Lady of Lourdes Hospital in Drogheda where X-rays and CAT (CT) scans were undertaken.
On admission to hospital, she was asked to stand up but the pain was so severe that she became deaf and was assisted back to bed, she was sweating and her hair was sticky and her clothes were wet.
She remained in the hospital in Drogheda for between eight and ten days suffering constant severe pain in her back. Whilst in the hospital she could not walk or visit the bathroom by reason of her condition. Doctors administered painkillers intravenously though her stomach. A swollen area developed in the centre of her back which she could not touch.
3. She was treated in hospital by way of medication only. A soft brace was applied to her back. After she had been discharged home she suffered constant debilitating pain and very severe disability in every aspect of her life. This pain and those disabilities have remained with her constantly since. She has required continuous care and assistance from her boy friend, Tony, for every type of domestic activity and for the performance of intimate bodily functions. This has caused her constant humiliation and embarrassment.
She needs assistance walking, (even short distances), because the pain when she walks is severe. She sleeps in pain and with difficulty for short periods. She cannot sit for any lengthy period. She cannot stand for more than ten minutes at a time without pain. She wears a soft brace permanently for twenty-four hours of every day.
She has spasms of neuralgic pain which she describes as “unbearable”. She requires incontinence pads during these spasms. When she suffers a spasm, she is “untouchable” and cannot be helped. She must lie on her bed during the most severe spasms which last for an entire day.
She requires the application of painkilling cream and infrared treatment every morning and every night to help relieve the pain. She takes medication every four hours. This adversely affects her appetite and often causes her to vomit. She eats from a feeding bowl by lying backwards and balancing the bowl upon her chest. If she tries to eat in any other manner, she loses her appetite entirely.
If she wishes to use the bathroom at night, she needs assistance to make that journey. She has constant dreams about the collision. In these dreams she is flung backwards and forwards. These dreams terrify her and make her relive her immediate post-accident pain. She has been unable to return to school to continue her studies.
Before the accident, she telephoned her parents regularly. She lives upon the remittances which they send to her from China. She has not informed her parents about the collision and her injuries because she does not want them to discover her present status. Her injuries are a source of shame for her. Disability carries with it a stigma in her home region in China. If her parents knew of her condition they would be worried and concerned about the life she is now living far away from them. Her father has a fragile heart condition. She is concerned for his health if he learns of her injuries and their consequences for her.
As a consequence of the accident she now has an unsightly swelling or hump in the lower centre of her back which is known as a “gibbous”. Her medical advisers have discussed with her the possibility of her undergoing reconstructive surgery to correct this deformity and to reduce her pain. They have explained to her that the angulation of her back has been adversely affected by her injury. It should be nought degrees. Immediately after the accident it had increased to between thirty degrees and forty degrees. It is presently sixty degrees and is likely to deteriorate further.
The objective of the surgery will be: (a) to correct the unsightly angulation within her spine and to remove the “gibbous” and (b) in particular, to relieve or reduce the level of continuous pain which she now suffers as a consequence of her injury.
She has been told in lay person’s terms that the surgery, if undertaken, will require that she be stretched across a bent table while her back is surgically opened so that metal or titanium rods can be inserted within her spine. Thereafter, the table will be straightened and the spine will straighten with the table.
Having advised her of the risks associated with it, (including a risk of paraplegia which has been calculated at between 1% and 5%), her surgical advisers have recommended that she should undergo the surgery.
She is not willing to do so. She has a consuming fear of paraplegia. One of the reasons for her fear is that physical disability, (and in particular paraplegia), carries with it a special stigma in her home region in China.
Additionally she has been advised that if the surgery is successful, it may not necessarily relieve her pain.
Prior to the accident the plaintiff worked regularly for approximately twenty hours each week as a cleaner in the Jervis Shopping Centre. She had been lawfully entitled to work for twenty hours each week under the terms of her student visa.
MEDICAL EVIDENCE
(A) Physical Injuries
1. Mr. Ashley Poynton, who is a consultant orthopaedic and spinal surgeon, and Mr. Christopher Pidgeon, who is a consultant neurosurgeon were in full agreement on the nature and extent of the plaintiff’s physical injuries.
She has suffered “a devastating spinal injury” which includes a compression fracture of the anterior superior end-plate of the first lumbar vertebra (LV1). Her complaints are entirely consistent with her injury.
X-rays have shown a progressive compressive collapse of the vertebra into a “wedge” shape which has left her with a significant kyphosis. The vertebra has been “squashed” and the compression has been “pretty well total”. In consequence the plaintiff now has a significant curvature of the spine and suffers from chronic low back pain with some thigh numbness, (resulting from nerve route compression).
She has also suffered probable fractures of the transverse processes which are wings at the side of the vertebrae to which muscles are attached. The fractures of the transverse processes have not been as serious as the compression fracture.
There has been slippage of at least one adjoining vertebra (TV12) and narrowing of the LV1/2 disc space with sclerosis (increased bone density) at that level.
Adjacent margins (DV12 and LV1) show signs of the onset of degenerative change. This change was not present in earlier MRI scans and is the direct result of the impact from the road traffic accident.
The X-rays and MRI scans, which Mr. Poynton examined, demonstrated that the fracture has resulted in an injury which has torn through the soft tissues which were the restraining structures in respect of the vertebrae. The result has been what is called a “soft tissue chance injury” which has resulted in progressive compression. This, in turn, has given rise to angulation of the spine. The apex of the angulation is the “gibbus” in her spine at this level and this has been consistent with the injury and its consequences.
At the time when she was injured the severity of the compression fracture at the LV1 level was underestimated by the medical staff responsible for treating her. Accordingly, she did not then receive and has not since received the surgery which she urgently requires.
That surgery, (described in evidence as “formidable”), if undertaken now, is likely to be lengthy and painful and she will require significant rehabilitation after its completion. It carries with it a number of risks including the risk of paraplegia. It also carries with it an increased risk of “second segment disease” immediately below the area affected.
The level of the plaintiff’s injury is at the junction between her abdomen and chest, and in consequence it has caused her significant back pain when she does simple things, (like standing in front of a washbasin, bending, stooping, lifting and undertaking small household chores).
Although she has been able to walk outdoors with some support for up to two hours and should be physically capable of showering while seated, she finds such activities very difficult and is unable to perform them without ongoing constant help and assistance.
Lumbar lordosis in the plaintiff’s spine is the result of compensation for the compression fracture and is the physical cause of the plaintiff’s low back pain.
She complains of frequent constipation. This is consistent with her injury and has resulted from: (a) immobility; (b) pain killing and antidepressant medication; and (c) pressure upon the gastrointestinal system from the affected vertebrae and soft tissue.
If the surgery is performed, she should be able to study and to pursue a career of the type which she had contemplated before the accident.
Mr. Poynton has advised the plaintiff to undergo the surgery but has been required to warn her of the risks associated with the surgery including a risk of paraplegia which he has estimated at between 1% and 5%.
He advised her that where the surgery is performed using spinal cord monitoring, the risk is reduced to 1% or possibly less. He also warned her of other potential risks associated with the surgery including infection, part-paraplegia, and severe bleeding.
The plaintiff’s injury is complicated by the fact that she is concurrently suffering from a profoundly disabling psychological injury which has been directly caused by the road traffic accident and which has remained untreated for more than six years.
When asked to estimate the prospect of the plaintiff undergoing the required surgery and returning to her studies, Mr. Poynton replied: “I would say possibility is more realistic than probability”.
Although he has strongly recommended the surgery to the plaintiff, he believes that it is reasonable for the plaintiff to refuse to accept his advice.
Some of his patients have declined this surgery in similar circumstances. One such patient declined the surgery because she is the mother of three children.
If the plaintiff does not have the surgery, she will continue to have significant pain, her condition may deteriorate and her chances of successfully giving birth will be called into question.
If she does undergo the surgery, pain management will be required after the surgery and she will require considerable ongoing assistance from her boyfriend because an adverse psychological state can impact upon rehabilitation.
The cost of the surgery is estimated at €33,000 for one day. Thereafter, the plaintiff will require inpatient treatment for between one week and one month and further rehabilitation for up to six months.
The surgery, if performed, will result in significant scarring. The length of the incision will be 20 to 30 centimetres. After the surgery, bracing will be required for some three months. A lightweight brace can be used which can be removed at night but causes discomfort.
If she undergoes the surgery, she may still continue to have back pain and this may influence her ability to perform occupations with a physical component such as cleaning, lifting and carrying.
If she does not undergo the surgery, she will require ongoing pain management and approximately three to four hours care every day.
Mr. Pidgeon is in agreement with the findings and views of Mr. Poynton. He further advised the plaintiff as follows:
(a) she should undergo the surgery because, if successful, her posture will be improved and the risk of degeneration reduced;
(b) if the surgery is successful, she will probably be physically capable of greater independence in domestic and other areas, (although the pain is unlikely to be eliminated altogether);
(c) in making her decision, she should take into account the pain and discomfort she is currently suffering;
(d) if the reconstructive surgery is undertaken, and is successful, then she will probably be fit for light work which does not involve heavy lifting or prolonged stooping or bending; and
(e) if she does not undergo the surgery, she will have no realistic employment prospect.
Although, if he were in the plaintiff’s position, he would undergo the surgery, Mr. Pidgeon is of the opinion that the decision in relation to the surgery is a decision which only the plaintiff can make.
(B) Psychiatric/Psychological Injuries
Evidence of the plaintiff’s psychological and psychiatric injuries was adduced by Dr. Paul McQuaid and by Dr. David Shanley who are experienced consultant psychiatrists. They were in agreement in respect of her psychiatric and psychological injuries.
The plaintiff has developed a significant post-traumatic disorder of her mind which is known as mood disorder. It is a verifiable condition. This mood disorder, which is a disabling injury, is a direct consequence of the back injury which the plaintiff sustained in the road traffic accident.
She has needed urgent medical intervention including support and treatment for her mood disorder since she first suffered the injury to her back. She has been mentally depressed, withdrawn, apathetic and nihilistic since then.
In April, 2006, Dr. McQuaid was so concerned about her condition that he urgently requested that his medical findings should be made available to the health authorities so that the plaintiff could be provided with immediate treatment and support. She did not receive that treatment.
When Dr. McQuaid examined the plaintiff on the 10th July, 2007, he found that she had deteriorated. Reporting on that examination, he concluded inter alia that:
“Maggie remains significantly depressed, conflicted, withdrawn, apathetic and nihilistic. Her mood disorder persists in the context of a significant back injury following the road traffic accident with which this report is concerned, now five years ago. Her overall circumstances have worsened and she represents a major challenge, both in terms of surgery and mental health needs.
The undersigned remains very concerned about her and has communicated that concern to her solicitor. It is quite unacceptable that she should be without appropriate general support and specifically, mental health intervention. Were she an Irish citizen, it would be an immediate requirement that she receive mental health intervention, probably admission to an acute psychiatric unit. She is fundamentally conflicted about her situation and helpless to do anything about it. Noteworthy are her depressive symptoms and thoughts of suicide. The prognosis is currently grave.
Lastly, her ability to work in the future is a subject about which it is virtually impossible to give a proper opinion, given her current state of disability and mental disturbance, although increasingly, the prognosis seems poor.”
On the 23rd July, 2008, the plaintiff continued to suffer severe mood disorder. She was very vulnerable and entertained thoughts of suicide. Her background circumstances, including the fact that her parents were so far away in China together with a fear of what might happen should she return to China contributed to her depressive condition.
Although her mood was down and her demeanour troubled, tearful and uncomfortable, she had obtained a clear benefit from treatment which she was then receiving from Dr. David Shanley.
The plaintiff is one of the most severe cases of mood disorder that Dr. McQuaid has encountered in his career. Suicidal ideation is one of the main concerns for psychiatry and the plaintiff is one of the most severe cases associated with that ideation that Dr. McQuaid has encountered. She represents a real risk in this respect.
Persons suffering from psychological illness can often feel pain more intensely by reason of their psychological condition. Dr. McQuaid has never entertained any doubt that the plaintiff’s pain is real.
He believes that she is conflicted by the issue raised by the recommendation of surgery. Part of her recognises that she should have the surgery. Another part of her is frightened of it. He describes her as “stuck” in this conflicted position, unable to make a decision. He believes that this is reasonable, having regard to the circumstances in which she has been placed.
He is of the opinion that very intensive psychiatric treatment over a period of between three and four months and subsequent further psychiatric treatment thereafter may bring her to the point where she will be in a position to make a rational decision in relation to the surgery. A decision to undergo the surgery would be rational.
The psychiatric treatment required would be extensive and expensive and could take a significant period of time.
Dr. Shanley is of the opinion that the plaintiff is profoundly depressed with marked psychomotor retardation. That means that her movements are slowed, her concentration is poor, she has difficulty sleeping, she has lost interest in everything and she has a poor appetite.
These are all classical symptoms of depression and they are fuelled by the fact that she feels she has not lived up to her family’s expectations and is therefore unable to tell them about her injury and her consequent dilemma.
She has cut off all communication with her friends and appears to be trapped in a time warp, unable to move or to make decisions. The severity of her depression distorts her thinking, which, at times, is delusional.
After Dr. Shanley prescribed antidepressant medication and sleeping tablets, there was a slight improvement in her condition and she cried less frequently. However, she remains profoundly depressed, is fatalistic and negative towards her future and refuses to consider the surgery which has been recommended for her.
Dr. Shanley can understand the plaintiff’s decision to refuse surgery. Like Dr. McQuaid, he recommends a very intensive course of inpatient treatment which he estimates will take approximately three months in an institution such as St. Patrick’s Hospital or St. John of God’s Hospital. He estimates that the treatment will cost approximately €550 per day. He points out that because of her difficulties with language, she would need an interpreter during this treatment, (especially during psychotherapy sessions).
He believes that there is no possibility that the plaintiff will undergo the requisite surgery unless she receives this psychiatric treatment. While there is a “prospect” that the psychiatric treatment will be successful in assisting the plaintiff to make a rational decision in relation to the surgery, Dr. Shanley does not describe it as a “good prospect”.
Stating that he would undergo the surgery if he were in her place, he continued: “I am quite certain that Maggie is adamant that she will not have the operation”. When asked, in cross-examination, whether he thought that the surgery was a “probability” or a “possibility”, he replied “possibility”.
RECOMMENDED SURGERY
In seeking to assess the damages to which the plaintiff is entitled, the central question which must be addressed is whether, on the evidence and on the balance of probabilities, the plaintiff will undergo the reconstructive surgery which has been recommended for her.
The plaintiff testified over a period in excess of four days. Although interpretation requirements added considerably to the duration of her evidence, she nonetheless described her injuries and their consequences carefully and in great detail.
Her evidence was consistent with and corroborated by the expert medical evidence which was adduced in these proceedings. It was also consistent with and corroborated by the findings of a private investigator retained by the defendants, who placed the plaintiff under surveillance and recorded her movements on camera without her knowledge on a number of occasions between the 5th February, 2008, and the 20th February, 2008.
During her testimony and at other times while she was present in court the plaintiff appeared to be in constant pain, never smiled and moved slowly and with obvious difficulty.
She became animated only on two occasions: (i) when speaking about her parents in China and (ii) when she was expressing her determination not to subject herself to the reconstructive surgery which her doctors strongly recommend for her.
In every other respect her demeanour appeared withdrawn, depressed, hopeless and joyless. She is now twenty-eight years old.
I found her to be a careful and conscientious witness. I accept that she is, at present, determined not to undergo the recommended surgery.
The question which must be addressed is whether, on the balance of probabilities, she will, in fact, undergo the surgery at some future date.
This court is not competent to answer that question. It must be guided by, and rely upon, the expert medical testimony which has been adduced in respect of that issue.
The expert medical witnesses unanimously agree that it is greatly in the plaintiff’s interests for her to undergo the surgery.
Mr. Poynton and Mr. Pidgeon (quite properly) refuse to try to predict the ultimate decision but stress that, at present, the plaintiff is determined to exercise her undeniable right to decline the surgery.
Mr. Poynton says that it is reasonable for the plaintiff to refuse to accept his recommendation. He was sceptical about the prospect of the plaintiff agreeing to undergo the surgery. He pointed to others amongst his patients who have declined this surgery for reasons not dissimilar to those identified by the plaintiff.
Dr. McQuaid believes that the plaintiff’s refusal to consider surgery has been influenced by her mood disorder. He says that this disorder makes it impossible for her to make a rational decision at present.
He is of the opinion that intensive inpatient psychiatric treatment over a period of three or four months and subsequent additional outpatient psychiatric treatment may bring her to the point where she will be in a position to make a rational decision and, in consequence, to undergo the surgery.
Dr. Shanley agrees that intensive inpatient psychiatric treatment will benefit the plaintiff. However, he says that the prospect of the plaintiff undergoing the surgery after such treatment can only be described as a “possibility” and not a “probability”.
On the evidence there is no prospect of the plaintiff undergoing the surgery within this jurisdiction in the foreseeable future unless she first is prepared to be admitted to St. Patrick’s Psychiatric Institution or to St. John of God’s Psychiatric Hospital in order to undergo a three -month programme of inpatient psychiatric treatment.
She must then be prepared to submit herself to outpatient psychiatric treatment for a further significant period before she will be capable of seriously considering the question of subjecting herself to the recommended surgery.
I am assuming, for the purposes of this issue, that she will be permitted to remain within this jurisdiction during the proposed psychiatric treatment and thereafter in order to consider, (and possibly undergo) the surgery.
For more than six years now, she has lived in confined accommodation within a country which is more than 10,000 miles from her home. During that time she has had little contact with any person other than her boyfriend, Tony, upon whose support she has been totally dependant for every kind of personal care.
She will not enjoy his support during inpatient psychiatric treatment and it is unlikely that she will receive comparable support having regard to language and other communication difficulties. She will still be the same distance from her home.
If the psychiatric treatment is successful, Dr. Shanley believes that the prospect of her undergoing the surgery can be described as a “possibility”.
Dr. McQuaid takes the view that intensive psychiatric treatment, if successful, will enable the plaintiff to make a “rational” decision about the surgery. Dr. Shanley agrees but says that the resulting “rational” decision is unlikely to be positive.
The fact that the expert and other relevant witnesses believe that, faced with the same decision, they would choose to undergo the surgery does not necessarily render irrational a contrary decision by the plaintiff.
The fact that the plaintiff is presently suffering from a mood disorder which affects her capacity to make rational decisions does not mean that a decision made by her (now or later) not to undergo the surgery will necessarily be irrational.
A small number of patients who are unimpaired by any psychiatric or psychological illness or injury have declined this reconstructive surgery for reasons which, to them, were quite rational.
The prospect, however small, of paraplegia clearly terrifies the plaintiff. It appears to have been magnified by a stigma which, apparently, attaches to disability within her home region in China. Her terror of paraplegia is not necessarily irrational. It has been shared by others in this jurisdiction and elsewhere.
I have with regret concluded that, on the evidence and on the balance of probabilities, the plaintiff is unlikely to undergo the reconstructive surgery which has been recommended for her and that she will probably rely upon pain management and care to reduce the effects of her injuries.
I have based that conclusion principally upon the medical evidence adduced in the case. I have also been influenced by the plaintiff’s testimony and by her personal circumstances.
MITIGATION
It is contended on behalf of the defendants that, if the plaintiff refuses to undergo the surgery, she will have failed to take reasonable steps to mitigate her injury and will be seeking to visit upon the defendants a liability for injury, loss and expense which is unreasonable and unnecessary in the circumstances.
The duty which rests upon a claimant to mitigate injury, loss and damage sustained as a result of negligence is well established. It includes a duty to obtain such medical treatment as may reasonably be necessary to reduce the claimant’s pain and suffering and the extent of any loss which he or she may sustain and subsequently seek to recover.
Questions concerning whether or not claimants have acted reasonably in order to mitigate injury and loss are questions of fact for the court – (see Sotiros Shipping Inc. v. Sameiet Solholt [1983] 1 Lloyd’s Rep 605).
Where it is claimed on behalf of a defendant that a claimant has failed to mitigate by refusing recommended surgery, the onus rests upon the defendant to show that the claimant’s refusal has been unreasonable in the circumstances (see Steele v. Robert George & Co. (1937) Ltd. [1942] A.C. 497, Richardson v. Redpath, Brown & Co. Ltd. [1944] A.C. 62 and Selvanayagam v. University of West Indies [1983] 1 WLR 585).
The medical experts who testified in these proceedings were disappointed by the plaintiff’s refusal to undergo the surgery which they were recommending. However they were unanimous in their view that her refusal was reasonable in the circumstances. No evidence was adduced suggesting otherwise.
It follows that the onus of proving the failure to mitigate has not been discharged in these proceedings.
DAMAGES
The task for this court is to assess the damages to which the plaintiff is entitled to compensate her for the injuries, loss and damage which she has suffered as a result of the defendants’ admitted negligence and breach of duty.
The principle restitutio in integrum applies and the court is required to replace the plaintiff, insofar as money can do so, in the position which she would have occupied if she had not suffered her injury.
What cannot be and is not in dispute is that during the period of more than eight years which has elapsed since the plaintiff suffered her injuries her life has been blighted beyond recognition as a direct result of those injuries.
Furthermore, her future life and prospects have been permanently and irrevocably damaged and her hopes and aspirations for the future are unlikely to be realised.
She is entitled to special damages, (pecuniary damages), to compensate her for: (a) the losses, costs and expenses which she has incurred since the 9th May, 2002, and, (b) the losses, costs and expenses which she will sustain in the future arising from her injury.
She is also entitled to general damages, (non-pecuniary damages), to compensate her for: (a) the injury which she suffered on the 9th May, 2002, and for the near destruction of her life and lifestyle within this country since then and, (b), the pain, suffering, inconvenience, distress and disruption of her life and lifestyle which will occur in the future as a consequence of her injury.
The “cap” on general damages
No sum of money can compensate for what is continuously suffered by a person who has been catastrophically injured.
Injuries which can be categorised as “catastrophic” are too numerous to list but they include quadriplegia, cerebral palsy, hideous deformity resulting from trauma or burns, various types of catastrophic brain injury, combinations of multiple amputations and sensory losses, severe paraplegia, a range of untreatable lung, intestinal and other internal organ injuries and some extreme chronic psychiatric injuries which require permanent inpatient care, medication and, sometimes, restraint.
It is not really possible or desirable to contrast the effects of a particular catastrophic injury with those of another catastrophic injury. However some cases come before the courts where it can be readily recognised that the injury, (or injuries), suffered and their consequences are so grave that the maximum general damages payable should be awarded.
In Sinnott v. Quinnsworth Ltd., Córas Iompar Eireann and Edward Denning [1984] 4 I.L.R.M. 523 the Supreme Court, (O’Higgins CJ.), indicated that, when awarding general damages for catastrophic injuries, the court should bear in mind that: “…a limit must exist, and should be sought and recognised, having regard to the facts of each case and the social conditions which obtain in our society”. (At p. 532).
The court cited with approval the following extract from the judgment of Griffin J. in Reddy v. Bates [1983] I.R. 141:
“The fact that a plaintiff has been awarded what is considered to be sufficient damages to cover all her prospective losses, to provide for all her bodily needs, and to enable her to live in comparative comfort (having due regard to her disabilities), should be reflected in the amount of general damages to be awarded… In a case of this nature where damages are to be assessed under several headings, the jury, having added the various amounts awarded and having arrived at a total figure for damages, should consider the total sum (as should this Court on any appeal) for the purpose of ascertaining whether the total sum is, in the circumstances of the case, fair compensation for the plaintiff for the injury suffered or whether it is out of all proportion to such circumstances. In my view, the income which the capital sum would generate with reasonably careful and prudent investment is a factor which the jury (and this Court on appeal) should take into consideration in arriving at a conclusion in this behalf”. (At p. 148).
In Sinnott, the court (O’Higgins C.J.) explained that, in cases of catastrophic injury where awards have been made which are intended to provide for all loss of earnings, care and medical costs past and future:
“…. what is to be provided for… in addition in the way of general damages is a sum, over and above these other sums, which is to be compensation, and only compensation. In assessing such a sum the objective must be to determine a figure which is fair and reasonable”. (At p. 532).
Condemning the jury’s award of IR£800,000 as lacking “all sense of reality” he continued:
“…this is a sum which if invested would yield a yearly income which in itself would defy even the most profligate expenditure. Such a sum bears no relation to ordinary living standards in the country or to the income level of even the most comfortable and best off in our community.” (Ibid).
He concluded that:
“…unless there are particular circumstances which suggest otherwise, general damages, in a case of this nature, should not exceed a sum in the region of IR£150,000. I express that view, having regard to contemporary standards and money values and I am conscious that there may be changes and alterations in the future, as there have been in the past.”
It is, therefore, well settled that, in 1984, the sum of IR£150,000 (€190,000), was the appropriate limit or “cap” on general damages. That finding has been repeatedly accepted by the courts and this court is bound by that acceptance.
Since 1984 the courts have reviewed and reassessed this “cap” from time to time by seeking to apply “contemporary standards and money values” to the accepted 1984 “cap” of IR£150,000 (€190,000). This court has been asked to undertake that exercise in these proceedings.
The court must, therefore, seek to assess general damages at a level broadly equivalent, in today’s values, to the award of IR£150,000 (€190,000) made in 1984.
The High Court (O’Sullivan J.) revisited the issue in McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) referring to intervening awards in the High Courts in excess of IR£150,000, and, in particular, to an award of IR£250,000 made by the High Court (Morris P.) in Kealy v. Minister for Health [1999] 2 I.R. 456.
O’Sullivan J. concluded that:
“… a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Ltd in today’s money would be IR£300,000.” (€380,000), adding that he might be erring “on the side of conservatism”
In Gough v. Neary [2003] 3 IR 92, the Supreme Court (Geoghegan J.) explained in greater detail the principle identified by Griffin J. in Reddy v. Bates. Pointing out that the IR£150,000 “cap” identified in Sinnott v Quinnsworth was to be applied to general damages “in a case of this nature” he explained at p. 133 that:
“…the words that precede that opinion make it perfectly clear that he was talking of a case where all the future needs, etc. of the plaintiff had been covered by special damages”.
He continued at p. 134:
“In my view, there is no compulsory ‘cap’ if there is no ‘omnibus sum’ or, in other words, if the special damages are low. On the other hand that does not mean that the ‘cap’ figure cannot be taken into account in a general way in assessing the appropriate general damages in a non-cap case.”
In M.N v. S.M. [2005] IESC 17, the Supreme Court, (Denham J.) reviewed an award of general damages made by a civil jury to compensate a teenage girl for sexual assault, sexual abuse and rape.
Pointing out that the court, in that case, was hearing an appeal from an award of general damages by a jury in “…what appears to be a new and developing jurisprudence”, Denham J. at p. 474, expressed the view that:
“there should be a rational relationship between awards of damages in personal injuries cases. Thus the level and limitations of awards in general damages in personal injuries actions are informative”.
She referred to different methods of assessment of general damages for personal injuries adopted by some statutory bodies established by the State in recent times including: (i) a system of “weighting” adopted by the Residential Institutions Redress Board, (established in 2002 by the Residential Institutions Redress Act 2002 (Assessment of Redress Regulations 2002), and the “Book of Quantum” which the Personal Injuries Assessment Board, (established in 2003), is statutorily required to maintain by way of “guidelines” for the assessment of appropriate levels of general damages to be awarded in relation to a range of different physical injuries.
Pointing out that ‘Guidelines for the Assessment of General Damages in Personal Injury Cases’ are published and updated by the Judicial Studies Boards of England and Wales and of Northern Ireland and that similar guidelines have been recommended in this jurisdiction by the Committee on Court Practice in its 29th Report, she added at p. 473:
“I am of the view that information on awards of damages given in previous cases and information published by the judiciary benefits a court assessing general damages”.
Identifying the several relevant factors which must be considered by a court hearing an appeal from an award of general damages by a jury, Denham J. explained
“… An award of damages must be proportionate; it must be fair to the plaintiff and to the defendant, it should be proportionate to social conditions, bearing in mind the common good and should also be proportionate within the legal scheme of awards made for other personal injuries”. (At p. 461).
On the evidence in the appeal in M.N. v S.M. she concluded that:
“…an award of general damages to the plaintiff should be at the higher end of the range of awards of general damages in personal injury actions generally”. (At p. 475).
She reduced an award of €600,000 to €350,000.
Referring to the distinction between awards which are solely or largely general damages and awards of general damages where substantial comprehensive special damages have also been awarded, she expressed the view that “the equivalent figure” (in March 2005), to the sum of IR£150,000, (€190,000), awarded in Sinnott v. Quinnsworth was “in excess of €300,000”. (At p. 469).
In the instant case, Ms. Lydon S.C., on behalf of the defendants, relied upon references by O’Higgins C.J. in Sinnott v. Quinnsworth to the need for the courts to consider how awards in such cases impacted upon “the operation of public policy” and the observation of Denham. J. in M.N. v. S.M, that such awards should be “proportionate to social conditions, bearing in mind the common good”. (At p. 461).
In Wells v. Wells [1999] 1 AC 345, the House of Lords identified what is sometimes known as the “100% principle”. Lord Hope,(at para. 390A), explained that:
“…the object of the award of damages for future expenditure is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The aim is to award such a sum of money as will amount to no more and, at the same time no less than the net loss.”
However, in Heil v. Rankin [2001] QB 272 at p. 297, the Court of Appeal (Lord Woolf M.R.) pointed out that:
“A distinction exists… between the task of the court when determining the level of pecuniary loss and when determining the level of non-pecuniary loss. In the case of pecuniary loss, and issues such as that which engaged the House of Lords in Wells v. Wells, the court is only required to make the correct calculation. Economic consequences are then irrelevant. When the question is the level of damages for non-pecuniary loss the court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the court makes the award.”
Those observations and the distinction identified by Lord Woolf between pecuniary loss (compensated by special damages) and non-pecuniary loss (compensated by general damages) are quite consistent with the principles and further distinctions identified by the Supreme Court in Sinnott v. Quinnsworth and M.N. v. S.M.
Hence, the need for the courts to hear evidence of and to consider “contemporary standards and money values” when assessing and calculating the limit or “cap” to be imposed on awards for general damages from time to time.
It was confirmed in evidence that this country is presently enduring a period of unprecedented recession. There has been a significant drop in individual disposable income and it is anticipated that this will become more acute during the next several years. Wealth and living standards have declined appreciably and economic growth has been replaced with contraction.
Those factors are relevant to the measurement of “contemporary standards” and current “social conditions” within this country and it can be validly argued that, in general, awards of general damages should reflect such economic realities.
However, life expectancy may be a factor to be taken into account where catastrophic injuries have been suffered. It is an important factor in the calculation of special damages such as care because care will usually be required for the lifetime of the person who is catastrophically injured.
The pain and distress suffered by such persons will also be life long and general damages are intended to provide them with some measure of compensation throughout the entire duration of their pain and distress.
Today’s recessionary economic circumstances should not be visited upon the most vulnerable in society in order to regulate the damages which are intended to compensate them for the whole of the remainder of their lives.
Accordingly, awards of general damages in these cases should take into account historical evidence of economic and social fluctuations over relevant time periods so that consequent adjustments made in the measurement of general damages will be as accurate as possible.
In some cases an award of general damages will have little or no compensatory consequence for a catastrophically injured plaintiff because of the nature of the injury suffered. For instance, a catastrophically injured plaintiff reduced to a permanent vegetative condition without insight is unlikely to benefit from any award of general damages. It will be open to the court to make no award of general damages in such cases.
Although the term “cap” has been used conveniently and repeatedly in this context, the suggested limit on general damages might more accurately be described as a “guide”. Because of constantly changing social and other circumstances and because there are usually exceptions to every seemingly inflexible rule, the courts retain an inherent jurisdiction to award appropriate damages where the interests of justice so require.
The following general principles, therefore, apply to the assessment of general damages where catastrophic injuries have been suffered:
1. Where the claimant has been awarded compensatory special damages to make provision for all necessary past and future care, medical treatment and loss of earnings, there will be a limit or “cap” placed upon the level of general damages to be awarded.
When applying or reviewing the “cap” on general damages the court should take into account the factors and principles identified by the Supreme Court in Sinnott v. Quinnsworth, and in M.N. v. S.M including “contemporary standards and money values”.
2. Where the award is solely or largely an award of general damages for the consequences of catastrophic injuries there will be no “cap” placed upon the general damages awarded.
Each such case will depend upon its own facts so that: (a) an award for general damages could, if the evidence so warranted, make provision for factors such as future loss of employment opportunity or future expenses which cannot be precisely calculated or proved at the time of trial, (b) life expectancy may be a factor to be taken into account and, (c) a modest or no award for general damages may be made where general damages will have little or no compensatory consequence for the injured person.
3. There must be proportionality between: (a) court awards of general damages made, (i) by judges sitting alone and, (ii) in civil jury trials and, (b) by statutory bodies established by the State to assess general damages for particular categories of personal injuries.
“Contemporary standards and money values”
In 1984 the Supreme Court in Sinnott v. Quinnsworth condemned the jury’s award of IR£800,000 as “lacking all sense of reality” but did not explain precisely why it should be replaced with an award of IR£150,000 suggesting that:
“. . . ordinary living standards in the country, to the general level of incomes, and to the things on which the plaintiff might reasonably be expected to spend money” were relevant factors to be considered when seeking to identify “contemporary standards and money values”. (At p. 532).
Although it is probably unlikely that the court, in Sinnott sought to predict future economic outlooks and earning levels when fixing the “cap” at IR£150,000 it is, in my opinion, appropriate for this court to consider expert evidence of: (a) our economic and social history between 1984 and 2009 and, (b) future social and economic outlooks when seeking to review the “cap” today.
This court has had the benefit of: (i) expert evidence on this issue from Mr. Moore McDowell, who is a consultant economist with exceptionally wide academic, administrative and public service experience and, (ii) an agreed report on the topic from Professor Philip Ronan Lane who is professor of international macroeconomics at Trinity College Dublin.
I accept Mr. McDowell’s evidence that the two most important factors to be taken into account when seeking to compare and contrast today’s standards and values with those of 1984 must be: (a) inflation, which has substantially eroded the purchasing power of money between 1984 and 2009, and (b) economic growth in the economy, which has caused a substantial improvement in the overall standard of living within this country between 1984 and 2009.
(a) Inflation
I accept Mr. McDowell’s evidence that both the Consumer Price Index (CPI), which is intended to reflect what we consume, and the “Gross Domestic Product Deflator” (hereinafter the GDP Deflator), which is intended to reflect what we produce, are less than perfect measures of inflation.
However, I accept, also, his qualified evidence (and the similarly qualified findings of Professor Lane) that they probably represent a useful means of measuring inflation for many of the purposes required in this case.
The relevant statistical evidence on this issue has been confined to information available (on the CPI) up to 2008 and (on the GDP deflator) up to 2007. It is reproduced hereunder;
Inflation Measures, CPI and GDP Deflator, 1984 = 100
Year CPI Multiplier GDP Deflator Multiplier
1984 100.0 100.0
1987 112.9 113.8
1987 112.9 113.8
1990 123.9 123.0
1993 133.8 133.9
1996 140.6 138.5
2000 157.7 164.7
2001 165.1 173.6
2002 172.8 182.3
2003 178.3 187.4
2004 183.0 191.5
2005 187.2 197.1
2006 195.5 204.0
2007 204.6 2.06 2.06
2008 213.4 2.13 n/a
Based upon that evidence, the equivalent value of the sum of IR£150,000 (€190,000) in 2007 was €391,400, (applying the GDP deflator) and €388,740, (applying the CPI). In 2008 it was €405,460 (applying the CPI).
(b) Economic growth.
I again accept the evidence of Mr. McDowell (and the findings in Professor Lane’s report) that there has been substantial growth in the Irish economy between 1984 and 2009.
Mr. McDowell identified three standard of living indicators which, he believes, can assist the court to identify the: “…ordinary living standard in the country….the general level of incomes, and… the things upon which the plaintiff might reasonably be expected to spend money” between 1984 and 2008.
They are as follows: (i) Gross National Product, (ii) consumption and, (iii) average industrial earnings. The relevant statistical information in relation to those indicators is reproduced below.
Standard of Living Indicators (values in Euro)*
Year GNPper head(€’000, 1984-2007) Multiple1984-2007 Consumption**per head(€’000, 1984-2007) Multiple1984-2007 AverageIndustrial Earnings(€/hour)Multiple1984-2007
1984 5,900 4,200 5.00
1987 7,300 5,100 6.08
1990 9,100 6,200 7.71
1992 9,900 6,700 8.50
1994 11,500 7,800 8.21
1996 14,300 9,000 8.68
2000 23,500 13,600 10.30
2001 25,500 14,700 11.76
2002 27,500 15,900 12.68
2003 30,000 16,900 13.37
2004 31,600 17,700 14.02
2005 33,900 19,100 14.42
2006 37,200 20,400 15.01
2007 39,200 6.9 22,200 5.2 15.47 3.1
(i). Gross National Product
Economic growth is conventionally measured in terms of Gross National Product (GNP). The impact on average living standards is then measured by the change in GNP per head of population.
This indicator suggests that there has been a substantial increase in the overall wealth of Irish society between 1984 and 2007, with GNP per head increasing from 5,900 in 1984 to 39,200 in 2007.
Accordingly, if the increase in the overall wealth of society between 1984 and 2007 is to be used as an appropriate yardstick, then the sum of IR£150,000 (€190,000) has increased in value by a factor of 6.9 between 1984 and 2007, when it was worth €1,311,000.
(ii). Consumption
Household consumption increased from 4,200 in 1984, to 22,200 in 2007.Therefore, using a representative household’s consumption as the yardstick, the sum of IR£150,000 (€190,000) has increased by a multiple of 5.2 between 1984 and 2007, when it was worth €988,000.
(iii). Average industrial earnings
Average industrial earnings have increased from 5.00 in 1984 to 15.47 in 2007. Accordingly, if the appropriate yardstick is the income level per head of population (measured by average industrial earnings), then the sum of IR£150,000 (€190,000) has increased by a multiple of 3.1 between 1984 and 2007, when it was worth €589,000.
Professor Lane, in his report, added a range of further potential bases for calculating the rate of economic growth including indicators based upon: (a) earnings in the manufacturing and private sectors, (b) gross national income per head and, (c) disposable income per head. His findings are reproduced below:
Adjustment Factors 1984 to 2008- €190,000
Basis Factor 2008 Value
CPI 2.15 409,491
Earnings (Manufacturing) 3.34 636,652
Earnings (Private Sector) 3.81 726,077
Gross National Income per head 6.07 1,156,677
Disposable Income per head 5.34 1,016,765
Using those indicators as yardsticks the sum of IR£150,000 (€190,000) would have increased by factors varying between 2.15 and 6.07 between 1984 and 2008, giving the sum 2008 values between €409,491 and €1,156,777.
Present economic circumstances
Mr. McDowell, in evidence, pointed out that the Irish economy is presently in a state of unprecedented recession. He stated that, as of January, 2009, the consensus view of the performance of the economy was that GNP per head would fall by at least 4% and by possibly as much as 8% in 2009. He said that a further contraction of between 1% and 3% is probable for 2010, and a recovery within the economy is unlikely before the end of 2011 although it could be delayed for a further year.
Allowing for that prediction, he believes that it is unlikely that GNP per head will return to 2008 levels before 2014 or 2015. He also estimates that average earnings are certain to fall in the short term and the extent of that fall will depend upon a number of complex factors.
He explained that, whilst the effect of a prolonged recession should have an impact upon the calculation of the “cap” in catastrophic cases, the adjustment to be made should not be large by comparison with an adjustment to take into account social and economic change over a 25 year period. He did not measure the adjustment to be made.
A decline, (or increase), in national economic growth and wealth may be reflected in the level of damages awarded in personal injuries cases. Each case will depend on its particular facts and should be determined on a rational commonsense basis. The overriding consideration should be fairness to all parties.
Damages awarded in catastrophic cases are usually intended to provide compensation for lengthy periods during which domestic and global economic circumstances will inevitably fluctuate. Although the “cap” is subject to periodic review by the courts, each award of general damages is final for the recipient.
I am satisfied on the evidence that, when updating the “cap” on general damages in this case, the court should also make an appropriate adjustment to reflect a present and forthcoming reduction in wealth and living standards which is likely to continue for a period of approximately five years.
Reviewing the “Cap”
I have concluded that inflation between 1984 and 2009, with the consequent erosion in the purchasing power of money, is an important factor which must be considered in seeking to apply today’s standards and money values to the 1984 “cap” on general damages. However, it is not the only factor to be considered.
I also believe that the “cap” should be adjusted to reflect sharp economic growth in the economy between 1984 and 2009 and a resultant significant improvement in living standards during that period.
The following evidence adduced by Mr. Mc Dowell is relevant:
(a) Living standards improved and average earnings increased substantially between 1984 and 2008 whilst the purchasing power of money eroded significantly,
(b) In late 2007, this country entered a recession of such magnitude that it is likely that living standards will deteriorate and average earnings will fall in the period between 2008 and 2015, whilst the purchasing power of money will be greater.
(c) A steep rise in earnings and living standards, followed by a sharp fall in both, is consistent with historical economic fluctuations recorded worldwide over long periods of time.
As a first step the court should apply the appropriate inflation index to the 1984 “cap” in order to identify a figure which is largely independent of other economic circumstances between 1984 and 2009. That requires the application of either the CPI or the GDP deflator.
Based upon the application of the CPI, the equivalent value in 2008 of the 1984 “cap” of IR£150,000 (€190,000) was approximately €400,000.That figure may be slightly downwards biased for reasons identified in evidence. The application of the “GDP deflator” gives a broadly similar result
There was a threefold increase in income level per head of population between 1984 and 2007. Living standards improved by factors varying between 5.2 and 6.9 during the same period. Those factors are relevant to the identification of: “…ordinary living standards in the country, to the general level of incomes, and to the things upon which the plaintiff might reasonably be expected to spend money” (see Sinnott v Quinnsworth at p. 532).
The “cap” on general damages in 2008 should be calculated against the background of living standards and money values applicable within the community in 2008. On the evidence living standards in 2007 were more than five times better than they had been in 1984. Income levels had increased at a rate approximately 50% greater than inflation during the same period. A downturn commenced in late 2007 or early 2008.
No expert evidence has been adduced which would accommodate a scientifically accurate calculation of an adjustment of the “cap” which, having allowed for inflation, would reflect the significant increases in earning levels and the improvements in living standards which have occurred between 1984 and 2008. Accordingly, I am seeking to achieve that objective on a commonsense basis by making a 25% upward adjustment of the “cap”.
That upward adjustment increases the equivalent value in 2008 of the 1984 “cap” of IR£150,000 (€190,000) from €400,000 to €500,000.
However, a downward adjustment must then be made to reflect the present and forthcoming reduction in wealth and living standards which commenced in early 2008 and is expected to continue for a further period in excess of five years.
The downward adjustment should not be large for the reasons outlined by Mr. McDowell and also because, on the evidence, it is likely that living standards, after a sharp decline in 2009, will gradually improve before returning to their 2008 levels by 2014 or 2015. I would measure the downwards adjustment at 10%.
That further adjustment reduces the present equivalent value of the 1984 “cap” of IR£150,000 (€190,000) to €450,000.
Proportionality
As I have indicated earlier, there should be proportionality between, (a) court awards of general damages made: (i) by judges sitting alone and, (ii) in civil jury trials and, (b) by statutory and other bodies established by the State to award general damages for particular categories of injuries.
(a) Relevant Court Awards
On the 26th July, 2001, O’Sullivan J. concluded in the case of McEneaney v. Monaghan and Coillte Teoranta County Council and Ors. (Unreported, High Court, O’Sullivan, J., 26th July, 2001) that:
“a reasonable equivalent to the IR£150,000 for general damages in Sinnott v. Quinnsworth Limited in today’s money would be IR£300,000” (€380,000) adding that he might be erring “on the side of conservatism”.
In March, 2005, Denham J. in M.N. v. S.N. reduced a jury award of €600,000 to €350,000 to compensate a teenage girl for sexual assault, sexual abuse and rape noting that €350,000 was “at the higher end of the range of awards of general damages in personal injury actions generally”.
A present equivalent “cap” of €450,000 is not inconsistent with those, or indeed most recent authorities.
(b) Statutory bodies
Personal Injuries Assessment Board
When assessing damages in personal injuries cases the courts are required by s. 22 (1) of the Civil Liability and Courts Act 2004 to have regard to the ‘Book of Quantum’ (described as a “ guideline of injuries and related values”), which was prepared and published by the Personal Injuries Assessment Board.
The ‘Book of Quantum’ in June, 2004, recommended awards of “up to €300,000” to compensate for ‘spinal cord injuries’ identified as “quadriplegia” and “paraplegia”, noting that:
“The courts set the maximum compensation with the exact value being based on a number of considerations: (a) level of movement, (b) level of pain and suffering, (c) depression – level of achievable rehabilitation, and (d) age and life expectancy”.
Three years earlier, in July, 2001, O’Sullivan J. in McEneaney, had assessed the “cap” on general damages at IR£300,000 (€380,000), adding that:
“I cannot accept . . . that a paraplegic, no matter how aware he is of his condition or how long his life expectancy . . . is in the same category as a quadriplegic”
An adjustment to take into account an increase of 16% in the CPI between 2004 and 2007 would increase the Board’s 2004 guideline from €300,000 to €348,000. There were increases also, between 2004 and 2007, in GNP per head, (25%), consumption, (25%), and average industrial earnings, (10%).
The Board’s “guideline” for “spinal cord injuries” in 2004 was somewhat less than the 2004 equivalent of the 1984 “cap” (after adjustment for inflation) and less than recent court awards for catastrophic injuries. However, its Book of Quantum expressly recognises the jurisdiction of the courts to “set the maximum compensation” in such cases.
Redress Board
The Redress Board, established pursuant to the provisions of the Residential Institutions Redress Act 2002, established a system for the assessment of damages to be awarded for the sexual assault or abuse of children in State care.
It provides for awards up to €300,000 and contemplates higher awards in cases deemed to be “exceptional”.
Having regard to the specialised nature of its work I would respectfully adopt the view expressed by Denham J. in M.N. v. S.M. that the system, whilst informative, should not be regarded as setting a precedent in respect of the assessment of general damages for personal injuries generally.
Conclusion
Having applied the criteria and principles identified in Sinnott and subsequent authorities, I am satisfied on the evidence that the present equivalent value of the 1984 “cap” of IR£150,000 (€190,000) is €450,000. This sum, (assuming normal life expectancy, an annual return of 3% and current tax rates), represents the capital value of an annual payment of approximately €17,000, (a factor considered relevant by the Supreme Court in Sinnott).
As I have indicated the limit or “cap” on general damages might more usefully be described as a “guide”. It is simply the present threshold beyond which further monetary compensation for a catastrophically injured person has probably become relatively meaningless. It is not a yardstick against which other awards of general damages should, necessarily, be measured.
The plaintiff’s general damages.
The plaintiff has suffered an injury of the utmost gravity. She is entitled to recover substantial damages to compensate her for the near total destruction of her life and lifestyle during the past eight years. Those should have been amongst the most valuable years of her young life.
She is also entitled to substantial damages to compensate her for the pain, suffering and disability which she will endure in the future and the loss of many of her future hopes and aspirations.
However she cannot be categorised as a person who has been so catastrophically injured that she should be awarded the maximum level of general damages payable within this jurisdiction.
She has significant mobility and is capable of walking (with assistance). She will now receive much needed medical care and assistance including pain management and psychological treatment. This will help her to achieve an acceptable level of comfort which will enable her to participate, to some extent, in everyday life events.
I am satisfied that she is entitled to recover general damages of €125,000 to compensate her for pain, suffering and loss of life and lifestyle between the date of her injury and the date of the trial.
I am awarding her further general damages of €200,000 to compensate her for the pain, suffering, disruption and loss of life and lifestyle which she will endure for the remainder of her life.
The plaintiff’s loss of earnings.
It has been contended on behalf of the plaintiff, that the evidence has established that, if she had not suffered her injury, she would probably, (a) have completed her English language studies within approximately eighteen months, (b) have graduated as a certified accountant within a further six years or thereabouts, and, (c) have been capable of obtaining remunerative employment within this jurisdiction or within the European Union at the end of 2009 or in early 2010.
It is also contended that her boyfriend, Tony Cao Zhi , would probably also have graduated and obtained remunerative employment and that the two would probably have married and started a family, either in this country or elsewhere within the European Union.
The defendants argue that no adequate evidence has been adduced from which the court can find that the plaintiff would have graduated as a qualified certified accountant within the suggested time or, indeed, within any reasonable time limit.
Ms. Lydon S.C contends that, if the plaintiff had not suffered her injuries she would probably have been unable to secure permission to remain within this jurisdiction and would have been obliged to return to China within a relatively short time after May, 2002. She points out that the plaintiff’s grasp of the English language remains very limited notwithstanding her attendance at an American College in Dublin.
In April, 2002, one month before the collision which caused her injury, the plaintiff commenced a course in the English Language Institute on St. Stephen’s Green, Dublin. Her investment of the sum of €2,000 for that purpose was a measure of her determination to bring her understanding and use of the English language to a level which would enable her to commence the full study of accountancy in English.
I am satisfied on the evidence that, if she had not suffered her injury, it is probable that she would have successfully completed her course and commenced a three-year accountancy degree in either University College Dublin or Grace’s College Dublin some time in the year 2003.
I am not satisfied that she has established, on the evidence and on the balance of probabilities, that if she had not suffered her injuries she would have graduated as a certified accountant.
I believe that she has established, on the evidence that if she had not suffered her injuries, she would probably have completed a three-year accountancy degree course in either University College Dublin or Grace’s College, and at a minimum, have acquired a sufficient level of proficiency and qualification in accountancy to enable her to secure full-time employment in accountancy in this jurisdiction by 2007 or 2008.
I am satisfied, on the evidence, that when she arrived within this jurisdiction, she did so as a determined and committed young woman who had a very clear objective and who had invested her time and her resources in the pursuit of a career in accountancy. The evidence has established that if she had not been so gravely injured she would probably have gone a considerable way towards achieving her objective.
I am satisfied that after graduation she would probably have continued to pursue her objective of improving her level of competence as an accountant and would probably have had some success in doing so, but without achieving her objective of qualifying as a certified accountant.
I accept her evidence that she would have continued in part-time employment between May, 2002, and the date of her graduation from either University College Dublin or Grace’s College Dublin. Her student visa permitted her to work on a full-time basis also (during school holidays) and she had hoped to do so.
At the time when she suffered her injury, she was working, as a cleaner, for twenty hours every week at a rate of €8 per hour.
She would probably have continued to earn that level of remuneration as a part-time worker between the date of her injury in May, 2002, and the date of these proceedings. She has suffered a loss which I would estimate at €50,000 in respect of those earnings. She is entitled to recover that sum as damages from the defendants.
Evidence adduced on behalf of the plaintiff by Mr. Roger Leonard, who is an occupational therapist and vocational evaluator, indicated that a 2008 salary survey for the Dublin area disclosed salary levels for accountants in practice which ranged from €40,000 per annum for a new member in practice to €300,000 per annum for a partner.
The survey disclosed that the level of earnings for a trainee accountant was between €22,000 and €28,000 per annum. Newly qualified accountants, internal auditors, cost accountants and management accountants earned remuneration in the range of €45,000 to €60,000 per annum.
Ms. Paula Smith, who is a vocational rehabilitation consultant, testified on behalf of the defendant. She estimated that a trainee accountant in 2007 earned between €28,000 and €32,000 per annum, whilst assistant cost accountants earned from €38,000 to €40,000 per annum. Credit control managers earned an average of €40,000 to €60,000 per annum. Management accountants earned more than that.
The average range between the lowest earnings of a trainee accountant (€22,000 per annum) and the highest earnings of a newly qualified accountant in 2008 (€52,000 per annum) is €37,000 gross per annum or approximately €596 per week.
On the evidence of Mr. Mc Dowell those earning levels have significantly reduced during the recent past and are likely to reduce further. Unemployment has greatly increased and employment opportunity is limited.
I am satisfied that if the plaintiff had not been injured, she would probably have obtained employment in 2008 at a remuneration level in the region of €450 per week. The capital value of that loss to the plaintiff, if she remained in continuous employment as an accountant until she reached the age of sixty-five years, is €522,950.
That capital sum must be discounted to take account of the factors identified by the Supreme Court in Reddy v. Bates (and subsequent authorities). The discount must be substantial because of the present and predicted domestic and global economic recession and because of the plaintiff’s personal circumstances and aspirations prior to her injury. The discount must also take into account the plaintiff’s professed hope to marry and raise a family, which, if realised would probably have slightly reduced, the extent and duration of her earning capacity.
Allowing for those discounts I will award the plaintiff the sum of €350,000 to compensate her for earnings which she would have achieved in the future if she had not suffered her injury
The plaintiff’s care costs.
Ms. Mary Breslin, who is an expert in the recruitment of nursing and caring staff, stated in evidence that the rates of remuneration for carers in 2008 was €21 per hour (for three hours or more each day).
It was Ms. Breslin’s view that the plaintiff presently requires the assistance of a carer for three hours in the morning and a further three hours in the evening because she needs assistance in dressing, bathing, cooking and shopping. She also stated that the plaintiff requires a cleaner for three hours twice weekly (at a cost of between €13 and €15 per hour) to maintain her accommodation.
Since it is unlikely that the plaintiff’s condition will improve, I am satisfied that she will require professional care for a minimum of four hours every day, seven days every week, at a current cost of €21 per hour (€558 per week).
The capital value of that care for the remainder of the plaintiff’s life will be just in excess of €800,000. The plaintiff will also be required to pay for cleaning for approximately six hours per week and must pay for her carer’s replacement for three weeks holidays each year.
Actuarial calculations in respect of the capital cost of care, cleaning and housekeeping etc., are intended to assist the court to understand the scale of daily, hourly or weekly costs. They are not intended to represent the precise calculation of the costs which will actually be incurred.
On the evidence in this case, I am satisfied that the plaintiff is entitled to recover the sum of €900,000 to compensate her for the costs which she will incur in the provision of daily care, annual carer holiday replacements, and weekly housekeeping for the remainder of her life because of her injury.
She has required continuous and comprehensive care from the time when she suffered her injury in May, 2002, up to the present time. That care has been provided in an exemplary manner by her boyfriend, Tony Cao Zhi, continuously, for more than seven years.
The plaintiff is entitled to recover damages to enable her to repay Mr. Cao Zhi for the invaluable, continuous care which she has received from him.
The cost of professional care for four hours every day from the 9th May, 2002, to the 12th December, 2008, has been calculated at €174,916. Mr. Cao Zhi provided far more than four hours care each day to the plaintiff during the past seven years.
When awarding damages for past care provided by parents and family members it has been the practice of the courts to apply remuneration rates significantly less than those which apply to the provision of professional care. It has never been entirely clear to me why that should be the case. Usually the care provided by parents and family members is commensurate with professional care standards. Often it exceeds those standards.
However, adopting that practice, I am awarding the plaintiff the sum of €85,000, which is somewhat less than 50% of the cost of the very least amount of professional care which the plaintiff has required during the past eight years.
As I have indicated, I am satisfied, on the evidence, that in addition to care, the plaintiff will require significant psychological treatment in the short-term and indefinite pain management. I am awarding her the sum of €100,000 to compensate her for the future cost of that medical treatment.
Damages will, therefore, be awarded in total as follows:
1. Agreed Special Damages to date: € 14,380.12
2. Fee paid to English Language Institute € 2,000.00
3. Loss of earnings to date: € 50,000.00
4. Loss of earnings in the future: €350,000.00
5. Care to date: € 85,000.00
6. Care, housekeeping, etc. in the future: €900,000.00
7. Psychological treatment and pain management
in the future: €100,000.00
8. General Damages to date: €125,000.00
9. General Damages in the future: €200,000.00
Total: €1,826,380.12
Corbett -v- Quinn Hotels Limited
Past and Future Suffering
[2006] IEHC 222
Judgment of Finnegan P. delivered on the 25th day of July 2006.
On the 17th July 2000 the Plaintiff was leaving the Defendant’s hotel premises, the Hillgrove Hotel Monaghan, when she tripped and fell and sustained injury. Liability is admitted.
A booklet of medical reports obtained on behalf of both the Plaintiff and the Defendant was agreed and handed into Court and in addition Mr. Leo Vella gave evidence.
The Plaintiff is a housewife. She was born on the 9th February 1960 and is now forty six years of age. She is a married woman with one child aged nine years. Her husband is a member of the Defence Forces.
The medical reports present a very confused picture indeed and my principal task is to determine which of her complaints have been shown as a matter of probability to have resulted from her fall.
Some of the injuries present no difficulty:-
1. Nose. In the fall she sustained a 2 cm laceration to the nose which was sutured, some abrasions and a contusion and a undisplaced fracture of the nasal bone without deviation of the septum. All these injuries have resolved with no residual scarring or adverse sequelae.
2. A laceration to the upper lip. This has resulted in a 2.5 cm stellate scar between her lip and the nose. The scar is just visible at conversation distance but is clearly visible on closer inspection.
3. Teeth. The upper left central incisor has lost one fifth of the crown structure which required repair. The upper right central incisor was intact but was slightly mobile in its socket: it is no longer mobile. There is a possibility that one or both of these teeth might die as a delayed reaction: however having regard to the passage of time this is not now likely. In terms of future treatment I think it sufficient if a sum of €500 was allowed to take into account the possibility that the treatment will be required. The injury to her teeth caused the Plaintiff considerable discomfort. For some twelve days she was unable to eat solids and unable to open her mouth sufficiently wide to drink and took sustenance through a straw. She complained of other dental injuries but has failed to satisfy me in relation to these that they existed or were caused by the accident.
4. Chin. She sustained lacerations and abrasions to the chin which did not require treatment and which have healed.
The Plaintiff sustained injuries to her knees and to her left shoulder the extent of which have proved very difficult to assess or indeed to explain. As a result of this the Defendant made an application pursuant to section 26 of the Civil Liability and Courts Act 2004 contending that the Plaintiff gave evidence that was false or misleading in a material respect which she knew to be false or misleading. I refuse that application as while the Plaintiff’s evidence was indeed misleading I am satisfied that she gave her evidence honestly believing the same to be true and that she had not intended to mislead the Court in any respect. She suffers from distressing symptoms in both her knees and shoulder which she attributes to the accident but which attribution has given rise to differences of opinion between medical experts as to the likelihood of her present symptoms being explained by her fall or indeed existing at all. I deal with each of these injuries now in turn.
1. The Knees.
Following the fall the Plaintiff was taken to Monaghan General Hospital. Both knees were bruised and excoriated. While the Plaintiff claims to have sustained lacerations this is not supported by the medical reports. However there is no doubt that the knees required dressings. On inspection there are some scars on the knees but I do not accept that these were caused by the accident. There is however an area of very slight discolouration on the knees which I accept as related to the accident. I arrive at this conclusion on the basis of the medical reports of her general practitioner Dr. Maria Murray and Liam J. McMullen Consultant Surgeon at Monaghan General Hospital. It appears from the report of Mr. McMullen, and I accept, that for three weeks following the accident knee discomfort caused her difficulty in walking. When examined by Mr. McMullen in January 2001 her knees were clinically normal with very slight crepitus on the left hand side at full flexion. She complained of difficulty in going down stairs and going down hill. On further examination by Mr. McMullen in 2002 she complained that the left knee had locked in late January 2002 and caused her extreme pain and following which incident she was housebound for three days. Descending stairs caused her pain in the knee. MRI scans of both knees were normal.
The Plaintiff attended Peter J. O’Rourke who examined her on the 26th September 2002 at Letterkenny General Hospital. She complained of bilateral anterior knee pain with the left side being worse than the right. Her ability to walk was limited due to fatigue and pain. On examination the contour of both knees was normal. There was no effusion. There was no instability of the ligaments. Examination of the menisci was not possible due to the patella femoral pain particularly on the left. There was crepitus over the medial and lateral femoral condyle and the medial lateral patella facets. X-rays were normal. Her condition is consistent with bilateral chondromalacia probably traumatic in origin. The appropriate treatment is physiotherapy and with physiotherapy the symptoms should gradually subside.
The Plaintiff attended Mr. Thakore on the 13th August 2003. She complained of constant pain in both knees mainly on the left but with a recent increase in right knee symptoms. The knees occasionally lock. Steps were causing her a difficulty and she was unable to kneel. Her walking is much curtailed. Mr. Thakore found her to be somewhat depressed as a result of her complaints. On examination the left knee was more painful than the right. Movements were restricted with some crepitus. However there was no muscle wasting. Menisci and ligaments were intact. There was no instability. His opinion is that the complaints are probably related to chondromalacia probably traumatic in origin. The appropriate treatment is physiotherapy. Mr. Thakore reviewed the Plaintiff on the 22nd September 2005. She still complained of her knees being symptomatic. The left knee was not locking as frequently but would occasionally swell: otherwise there was no improvement. She still could not kneel and still had difficulties with steps. On examination movements of the knee were full but with some pain at the back of the knees. She had some patella femoral pain.
The Plaintiff was seen by Mr. Michael A. Maloney on behalf of the Defendant in July 2001. She was then attending physiotherapy for her knees. She complained of difficulty in walking at times and in negotiating stairs. On examination there was very minor crepitation on movement of both knees. They were not swollen. The joints were normal with full pain free movements.
The Plaintiff was examined by Mr. L. A. Vella on the 13th August 2003. She complained that her knees were giving her great difficulty when walking and that she is more or less housebound. She was doing exercises for her knees. She was unable to kneel. On examination there was a full range of movement of the knees. Mr. Vella noted no crepitation. However the Plaintiff complained of a lot of pain when her knees were touched. In his opinion the Plaintiff probably had some scraping and superficial and deep bruising to her knees and he would have expected her injuries to resolve within a short period of time. She appeared to be tender all around the knees and was reluctant to move her knees and this made examination very difficult. He noted that she was able to walk normally. Mr. Vella reviewed the Plaintiff on the 2nd June 2004. She complained of pain in her hips. She could only walk 100 yards after which the knees became sore. His opinion is that the Plaintiff sustained minor injury to her knees from which she has recovered. Mr. Vella finally saw the Plaintiff on the 19th July 2006. She was able to walk at that time without limping and able to stand on each leg and turn. She would not allow a full range of movements of her knees and hips as she complained of pain. Her injuries should have recovered a long time ago.
Mr. Vella gave evidence to the like effect of his medical reports.
On behalf of the Defendant the Plaintiff attended Mr. Darragh E. Hynes. He saw her on the 22nd September 2005 when she continued to complain of symptoms in the knees. During the course of his examination the Plaintiff did appear to have alternate levels of stiffness in her knees and shoulder. He found it surprising that she should continue to have symptoms in the knees at this remove from the accident. It is possible that she suffers from chondromalacia.
I have the evidence of a private investigator Mr. Connolly who produced video evidence taken between October 2003 and March 2004. In relation to the Plaintiff’s knees the video showed her able to walk for a protracted distance briskly and without any apparent difficulty. My conclusion on the evidence is that the Plaintiff sustained contusions and abrasions to her knees which caused her considerable difficulty for perhaps one month. As a matter of probability she has sustained to a mild degree chondromalacia which causes her occasional but not significant discomfort. Perhaps related to the low mood recorded by Mr. Thakore she concentrates overly on the injury to the knees and subjectively believes her symptoms to be a great deal worse than they really are. In these circumstances it is appropriate that I award her damages on the basis of the injuries actually sustained – abrasions and contusions which caused serious difficulty for perhaps four weeks thereafter gradually reducing and disappearing: however she developed chondromalacia from which she suffers mild and occasional symptoms but which on the evidence of the video shown to the Court does not in any way interfere with her ability to walk briskly. I take the view, as is often the case, that with the resolution of these proceedings she will cease to concentrate on her injuries and I expect her condition to resolve, perhaps with the aid of some physiotherapy, in the short term.
2. The Shoulder
In the fall the Plaintiff abraded her right shoulder. She had pain in the left humerus and was unable to lift her left arm. In 1989 she developed symptoms in the left shoulder for which she attended a specialist. The symptoms resolved without treatment over a period which lasted anything from one to three years without any specific diagnosis or treatment. When she attended her general practitioner on the 21st July she was unable to elevate her left arm above 60° due to pain in the upper humerus. From the report of Mr. McMullen it would appear that the area became increasingly uncomfortable. She had five sessions of physiotherapy in an attempt to attain full mobilisation of the upper limb. By January 2001 movements of the shoulder and arm were restricted and in particular she had difficulty in elevating the hand above her head. She was only able to place the dorsum of the left hand over her first lumbar vertebrae. On examination on the 17th May 2002 she could only abduct the arm to 70°. He recommended physiotherapy.
Mr. O’Rourke saw the Plaintiff on the 26th September 2002. She complained of decreased movement and pain on abduction of her left shoulder. She could use the arm by keeping it close to her side but had difficulty in lifting the arm away from her side and in abducting and flexing it because of pain. She was unable to lie on the left shoulder. Her sleep was disturbed. On examination the shoulder was normal in appearance, movement was restricted active abduction and flexion being 70° – 80°: passive abduction was normal, internal rotation and external rotation were limited, power was reduced secondary to pain. No abnormality could be found on examination. It was not possible to determine whether there was an impingement due to the Plaintiff’s reaction to examination. He recommended an MRI scan of the shoulder but none was carried out at this time. As a clinical examination was not helpful there was a possibility of damage to the rotator cuff.
The Plaintiff attended Mr. Thakore. He examined her on the 13th August 2003. She had had physiotherapy to her left shoulder which helped somewhat. She remained restricted in household chores and in looking after her son. She still could not lie on the left hand side and her sleep was disturbed. On examination movements of the shoulder were restricted. There was some crepitus. There was no muscle wasting and no focal deficit in the upper limbs. Mr. Thakore felt that there was probably some impingement. Her symptoms pointed towards rotator cuff syndrome either due to rotator cuff damage or ongoing tendonitis of the rotator cuff. He recommended an MRI scan.
An MRI scan was carried out on the 2nd June 2004 on the left shoulder. This showed degenerative changes at the AC joint with bony impingement on the underlying supra spinatus tendon and an extensive partial thickness tear of the distal tendon with marked thinning of the tendon fibres and high signal along the articular surface. There was tenderness consistent with a labral tear and in the opinion of Mr. Thakore this indicated that the Plaintiff has degenerative changes in the AC joint but bony impingement on the underlying supra spinatus tendon and a partial thickness tear of the distal supra spinatus tendon with evidence of a labral tear. Her condition may have pre existed the accident and been exacerbated by it or may be a recent injury. There is evidence of impingement. Arthroscopic assessment was required but the Plaintiff was unwilling to have this. Arthroscopic repair and decompression would improve function leaving her with low key pain and stiffness. Mr. Thakore again saw the Plaintiff on the 5th October 2005. He found minimal wasting of the strap muscles of the left shoulder. The Plaintiff was tender over the front and side of the left shoulder. Movements were occurring mostly at the shoulder girdle rather than at the shoulder itself. Movements were restricted. He again recommended arthroscopic assessment.
Mr. Maloney saw the Plaintiff on behalf of the Defendant. On the 21st July 2001 she stated that the condition of her left arm had improved considerably. Movements of the left shoulder were full in range and free of pain and crepitation. He found the Plaintiff to be mildly histrionic about her injuries.
Mr. Aidan Lynch saw the Plaintiff in relation to her shoulder injury again on behalf of the Defendant. His report is dated June 2003. Her original complaint in relation to the left shoulder as recorded by him is that she complained of an ache in the front of her arm for a number of weeks which then became intermittent. She denied any previous shoulder pain. Her present condition was that she suffered from an ache in the anterior aspect of the left arm varying with activity. On examination she claimed that she could not flex her arm beyond 90° or abduct beyond 70°: however she had a full range of rotation at both shoulders. There were no abnormal neurological findings. He felt her condition would improve with exercises and that there was no reason for her to have any problems in her shoulder at that time.
Mr. Vella saw the Plaintiff on the 13th August 2003. She complained of inability to lift her arm from her side and of difficulty in getting dressed. On examination she was tender in the forearm and upper arm but there was no deformity of the arm. Movements were limited because of a complaint of pain. It was impossible to determine by examination what was wrong or whether any abnormity existed. Mr. Vella reviewed the Plaintiff on the 2nd June 2004. She complained that her arm ached a lot but that she could use it. Carrying anything heavy gave her pain and she felt power was reduced. On examination she was unable to elevate the left shoulder above the horizontal because of pain. He believed that she sustained a minor injury to her left arm and that she had fully recovered and he understands that all surgeons agree with this view.
Mr. Darragh Hynes saw the Plaintiff on behalf of the Defendant on the 22nd September 2005. Again movements were restricted by pain. She said that she was unable to carry items and that the upper arm was constantly sore. On examination movements were restricted. Mr. Hynes had access to Mr. Thakore’s report on the MRI scan carried out in 2004. He concludes as follows –
“I find I difficult to co-relate this ladies history of ongoing symptoms, recent clinical examination and the MRI scans of her shoulder. It would appear that she did suffer a soft tissue injury to her shoulder at the time of the fall in July 2000. It appears that an MRI scan of her shoulder was undertaken in September/October 2002 which apparently was normal (note: he is incorrect in this). She had a subsequent MRI scan undertaken in June 2004 which showed degenerative changes and partial rotator cuff tearing.”
On the evidence I am satisfied that no MRI scan was carried out in September/October 2002. However in his clinical experience the clinical findings are not in keeping with the MRI scan finding of June 2004. On examination it was difficult to assess the shoulder clinically. Her functioning in the left shoulder appears to alter from time to time. His view is that the Plaintiff sustained a significant soft tissue injury to her shoulder in the fall but he would have expected her symptoms to have resolved within two to three years of the injury occurring and she should not have a significant long term problem in the shoulder as a result of the injury sustained. Mr. Hynes received a consultation report from Mr. Colville dated 3rd January 2006 as a result of an examination by Mr. Colville on the 11th October 2005. He found Mr. Colville’s clinical examination to be broadly similar to his own. There is no evidence of muscle wasting which would generally be seen in patients with significant restriction of activity and use of their shoulder. It is unlikely that the Plaintiff’s symptoms are as significant as she would report.
Mr. Colville saw the Plaintiff on the 3rd January 2006. She stated that she was in absolute agony with her shoulder and could do nothing. To carry shopping causes her pain. She was taking pain killing medication almost every day. Her sleep was upset. On examination he found her to be in good general health. Examination of the left shoulder revealed no muscle wasting. The range of movement was difficult to assess. She appeared to be unable to move her shoulder to any degree. The measured girth of the arm was normal. There was no neurological deficit. In his opinion the Plaintiff’s symptoms are somewhat excessive given the lack of positive clinical findings such as wasting. A further assessment by way of arthroscopy to confirm findings would be required. If there is significant impingement decompression would relieve a lot of the symptoms. He has difficulty in understanding the severity of the symptoms and her apparent inability to move her shoulder to any degree. Physiotherapy might do this.
The medical reports present a difficult picture for me. Taking the medical reports as a whole I am satisfied that the Plaintiff sustained an injury in the fall to her left shoulder. She is left hand dominant. I have no clear explanation as to why she should have pain at the humerus. However the MRI discloses an injury to the rotator cuff and superspanatus muscle. The Plaintiff had a previous injury or condition in the left shoulder in 1989 which recovered. In these circumstances I think it most likely that she exacerbated a pre existing injury in the fall. Ordinarily this would have recovered within a period of some years perhaps three years. However the Plaintiff overly concentrates upon her injuries perhaps because of the pending litigation which has been hanging over her for some five years now. I am unable to accept that she has significant pain or discomfort at this time and I expect many of her symptoms will resolve with the resolution of the litigation. From the video evidence it seemed to me that the Plaintiff was careful of her left arm and tended to carry her shopping in her right arm. I accept that she is to some degree careful of using the left arm but I think she is over careful in relation to the same because of her own perception of the injury. Significantly there is no muscle wasting: this indicates to me that the Plaintiff makes much greater use of the left arm than she believes to be the case. With some physiotherapy and more vigorous use I think it likely that she will regain her pre accident condition very shortly.
Quantum
Because of the nature of this case I do not propose apportioning damages between the several injuries sustained by the Plaintiff. Having regard to the views which I have expressed in relation to the Plaintiff’s symptoms I am satisfied that an appropriate award for pain and suffering to date and into the future for the injuries which the Plaintiff has satisfied me she sustained in the accident is €47,500 to date and €7,500 into the future. In addition she is entitled to the sum of €500 for future dental expenses and the sum of €3,000 special damages which have been agreed. Accordingly I award the Plaintiff the sum of €58,500.
Lett & Company Ltd -v- Wexford Borough Corporation & Ors
Legitimate Expectations
[2007] IEHC 195 (23 May 2007)
JUDGMENT of Mr. Justice Clarke delivered 23rd May, 2007.
1. Introduction
1.1 The plaintiff (“Letts”) has been involved in mussel farming in Wexford Harbour for very many years. They were at the forefront of developments in the 1960s and 1970s which led to a more commercial approach being taken to mussel farming. Up to that time mussels were harvested in a traditional fashion from long established mussel beds within the harbour. Thereafter the process moved to one whereby mussel seed was harvested (normally in the Irish sea), transported to Wexford Harbour and left there so as to enable the mussels to grow to a size where they were saleable.
1.2 Letts had traditionally used a number of mussel beds within Wexford Harbour which, it is common case, were among the more productive beds within that harbour. Over the last decade or so Letts have suffered two disruptions to those mussel beds. The first occurred as a consequence of significant bridge work in Wexford which had the effect of changing the water flows around some of Letts more attractive mussel beds. The consequences of those works were the subject of previous litigation brought by Letts which was compromised between the parties to that litigation. The issues which arose in those proceedings are, therefore, not strictly speaking relevant to the case which I have to decide. However those proceedings are of some relevance to certain of the issues which do arise in these proceedings.
1.3 This case concerns the second intervention which has had an effect on Lett’s mussel beds. There had, for many years, been a plan to engage in a significant upgrading of the sewage facilities for Wexford town and its environs. It would appear that, historically, much of the waste from Wexford town emptied directly into the harbour through a large number of separate pipes. Ultimately it was determined that a modern and sophisticated waste treatment plant should be constructed. It would appear that that waste treatment plant was intended to, and did in fact, adopt modern best practice in relation to what is described as the tertiary treatment of waste. It was, however, necessary that the waste, when treated, would have to be discharged into the sea at some point. In that context the ultimate outfall point determined on was in the middle of one of Letts mussel beds. In circumstances which it will be necessary to analyses in some detail a so called “exclusion zone” was imposed which had the effect of preventing mussel harvesting within a distance of 500 metres from the outfall point. It is in relation to what it contends are losses stemming from the imposition of that exclusion zone that Letts brings these proceedings. In substance it is contended that Letts have a legitimate expectation that they will receive compensation and that they have, in fact, suffered loss as a result of the imposition of the exclusion zone.
1.4 Against that general background I should outline the principal issues which have arisen in the proceedings and which it is necessary to determine in the course of this judgment.
2. The Issues
2.1 The first issue which arises is as to whether, in all the circumstances, Letts have a legitimate expectation that they will receive compensation. Clearly if no such legitimate expectation can be said to exist then nothing further arises.
2.2 In the event that an entitlement arises, in principle, to the payment of compensation then there is a second issue between the first named defendant (“Wexford Corporation”) on the one hand, and the second and third named defendants (“The State”) on the other hand as to whose obligation it is to pay such compensation. It will be necessary to analyse, again in some detail, the relationship between Wexford Corporation and, in particular, the second named defendant (“The Minister”). However in general terms it is sufficient, at this stage, to note that, in order to construct the outfall pipe, Wexford Corporation needed a licence from the Minister because a significant portion of that outfall pipe was to be constructed on the foreshore and, therefore, in the jurisdiction of the Minister. In that context discussions took place between Wexford Corporation and the Minister concerning the terms of a foreshore licence. The licence as ultimately executed makes provision for the payment of any compensation arising from losses resulting from the foreshore licence to be a matter for Wexford Corporation and also contemplates the imposition of an exclusion zone. It will be necessary to refer to the relevant provisions of the foreshore licence in due course. However while it is true to state that the foreshore licence contemplates an exclusion zone, it is argued on behalf of Wexford Corporation that the exclusion zone ultimately imposed by the Minister was not the exclusion zone contemplated by the licence. In addition, it is said, correctly so far as it goes, that the operation of the plant itself has never given rise to any practical difficulties in terms of pollution or the like. In those circumstances it is said that any losses attributable to the operation of the exclusion zone that was actually imposed by the Minister is a matter for the State rather than for Wexford Corporation. In the event, therefore, that Letts are found to be entitled to compensation, then a second issue arises as to whether that compensation should be directed as against Wexford Corporation on the one hand or the State on the other hand.
2.3 Again on the assumption that Letts are entitled to compensation in principle, there are very serious issues between the parties as to whether Letts have established any loss and if so the quantum of such loss. Briefly put both Wexford Corporation and the State argue that no losses have been established. Subject to that it is also common case between the parties that the question of whether there has been loss, and if so the amount of any such loss, needs, in the events that have happened, to be considered in relation to two different periods. To understand this division it is necessary to note that a significant practical change to the situation on the ground occurred in the weeks immediately before this case was due to commence hearing in the summer of 2006. At that time and, it would appear, placing reliance on reports as to water quality prepared in the context of this litigation, the Minister decided that the exclusion zone was no longer necessary.
2.4 Not unreasonably up to that time Letts had formulated their claim on the basis that the exclusion zone was likely to remain in place indefinitely. Given that the exclusion zone was, in the period immediately prior to the hearing, in effect discontinued, it became clear that the basis for approaching any loss into the future had been radically altered. Because none of the parties had had a reasonable opportunity to deal with this aspect of the case as it then emerged (by reason of the lateness of the decision to discontinue the exclusion zone) the case proceeded in two segments with the evidence relating to loss up to the time of the removal of the exclusion zone being the only matter relating to compensation considered during the first segment. Thereafter, a second hearing was conducted in relation to the question of whether there are any continuing losses attributable to the existence of the exclusion zone notwithstanding its discontinuance.
2.5 Therefore, in the somewhat unusual circumstances of this case, there is at least a possibility that there exists a significant difference as to the basis upon which it is necessary to consider losses up to the date of the discontinuance of the exclusion zone on the one hand and losses thereafter on the other hand. Certainly on the case made by Letts that differences is quite radical. There are, within both of those questions, a whole series of subsidiary issues of scientific fact and opinion which were canvassed in the course of the hearing and at least some of which will have to be resolved in order to determine the extent, if any, of the losses which may be said to flow from the imposition of the exclusion zone whether up to the time of its discontinuance or thereafter. I propose setting out those issues in context when approaching the overall issues of losses later in the course of this judgment.
2.6 However, as indicated earlier, the first question that arises is as to whether Letts have established a legitimate expectation to an entitlement to compensation in the first place. I turn, therefore, firstly to the factual background put forward on behalf of Letts for their contention of an entitlement to such an expectation.
3. Legitimate Expectation – The Facts
3.1 As indicated earlier Letts operate a shell fish business in Wexford Harbour. Letts have fished certain parts of that harbour (now described as Beds 30A and 30D) since Letts was incorporated in 1963. It would also appear that those areas had previously been fished by members of the Lett family since the latter part of the 19th century. It would appear that local fishermen in Wexford Harbour, (including Letts) engaged in discussions in the late 1960s as a result of which a system of allocating particular mussel beds to particular fishermen was agreed on. As part of those arrangements the mussel beds then known as the river mussel bed and now known as Beds 30A and 30D were agreed to form part of the allocation of Letts. Letts also had allocated to them certain other beds which are of some relevance to these proceedings in that they have the potential to have an impact on the calculation of losses. It will be necessary to refer to those additional beds in due course.
3.2 In the mid 1990s a formal legal system for the licensing of aquaculture was introduced in respect of Wexford Harbour. It would appear from correspondence between representatives of the Minister’s Department and Bord Iascaigh Mara (“BIM”) that the Department considered that the arrangements previously agreed between the fishermen had worked well and that the Department intended to have full regard to those arrangements in formulating any licensing scheme “so as not to lead to conflict among existing operators”. The licences ultimately granted were by reference to beds which were marked out with a numbering scheme. There would appear, on the evidence, to have been a number of minor areas of difficulty encountered in reconciling the applications for formal aquaculture licences with the beds actually being used by the fishermen. In some cases it would seem that those difficulties simply came down to questions of the proper identification of the boundaries of the beds actually being used. In one or two cases there seems to have been a more substantial dispute. However none of those disputes are relevant to this case. In any event it is clear that, at least so far as the first ten year round of aquaculture licences are concerned, the Minister, in each case, gave a licence to fishermen to operate in respect of the beds which they had traditionally fished and which had been allocated to the fishermen concerned in the arrangements entered into the 1960s to which I have referred.
3.3 I am, therefore, satisfied as a matter of fact that, were it not for the events surrounding the construction of the waste water treatment plant and its outfall pipe, Letts would, as a matter of virtual certainty, have obtained aquaculture licences for a ten year period in respect of beds 30A and 30D.
3.4 Letts did, in fact, receive a ten year aquaculture licence in relation to four other beds which were not the subject of the exclusion zone. The precise status of the exclusion zone actually imposed was not entirely clear on the evidence. As part of the regulatory regime which exists in respect of mussel farming and harvesting Letts required a licence to move fish stocks when it wished to harvest mussel seed and deposit it in Wexford Harbour. Such a licence was obtained on 22nd June, 2001 which prohibited Letts from placing mussel seeds with 500 metres of what was then the proposed location of the sewage outfall pipe.
3.5 At one stage in the case it appeared that it might be suggested on the part of the State that no other or continuing exclusion zone did, in fact, exist. However it is clear from the evidence of Mr. Desmond Lett (which I accept) that he was, at all material times, of the belief that the exclusion zone referred to in the licence to move fish stocks was still in place. I am also satisfied that his belief in that regard was reasonable and was consistent with the communications between Letts on the one hand and officials in the Department on the other hand. Indeed a senior official in the Minister’s Department gave very fair evidence in the course of which he accepted that it was reasonable for Mr. Lett to be of that belief. Furthermore there is correspondence between Letts on the one hand and the Department on the other hand which makes it clear that Letts were operating on the basis that an exclusion zone of 500 metres from the outfall point was in place. No replying correspondence casting doubt upon that assumption was made.
3.6 Finally the very decision to discontinue the exclusion zone which, as I have indicated, was taken in the summer of 2006, implies that there was something there to remove. In all the circumstances I am satisfied as a matter of fact that there was an exclusion zone in place from the 22nd June, 2001 until June 2006 which was described by reference to 500 metres from the proposed location of the sewage outfall pipe. While dealing with this aspect of the case I should also add that there was one minor dispute between the parties as to the precise positioning of the exclusion zone. While not of very great significance, that dispute has the potential to have some effect on the measurement of losses. That dispute stems from the fact that, it would appear, the outfall pipe as actually constructed had its outfall point in a slightly different position than the one indicated on the plans which were originally made available to Mr. Lett. In those circumstances Letts contend that the exclusion zone was as specified in the licence to move fish stocks and was therefore, 500 metres from the proposed outfall point as indicated on the maps then made available to them. There is no evidence that Letts were ever informed that the exclusion zone might be taken to have been altered slightly by reason of the difference between the actual outfall point and that which appeared on those maps. In those circumstances I am satisfied that it was more than reasonable for Letts to consider that the exclusion zone was as originally specified. I am, therefore, satisfied that the exclusion zone which was, in practice, in force during the relevant period is as contended for on behalf of Letts.
3.7 Letts had been involved in making representations to the relevant authorities (most particularly Wexford Council) when plans for the waste water treatment plant were in the course of formulation. Letts drew attention to the potential consequences for their mussel beds, and in particular mussel beds 30A and 30D, in the event that the plan to position the outfall point went ahead in the manner contemplated. While certain evidence was canvassed in the course of the hearing before me as to the possibility that other outfall points might have been chosen, I am not satisfied that it has been demonstrated that there was anything inappropriate in the choice of outfall point or, indeed, in the formulation of the plans for the waste water treatment plant as a whole. Indeed as no contemporaneous challenge to those plans was mounted it is difficult to see how any claim could now be based on an alleged unlawfulness of the plant itself or the location of the outfall pipe. That there was a need for such a plant is clear. That there would have to be an outfall point from the plant is also clear. It may well have been that other outfall points could have been considered but there is no factual basis for a determination that there was anything wrong with the choice actually made. In any event, as a matter of fact, Letts did not seek to challenge the plan at the time when it was being put in place.
3.8 However Letts were able to take comfort from the fact that, well in advance of the commencement of works, the Minister had entered into the foreshore licence to which I have referred with Wexford Corporation. While the precise terms of that licence are of particular relevance to the issue which has arisen between the Minister and Wexford Corporation it is also important to note that clause 14 of that licence (which is dated 1st April, 2000) notes that:-
“Any claims for compensation for proven loss of income shall be assessed and settled in accordance with an agreement which shall be entered into by the licensee with mussel fishermen prior to any discharge from the outfall pipe and diffuser”.
3.9 Thus it was always clear to the mussel fishermen (including Letts) that a scheme of compensation was to be put in place for loss of income arising out of the impact of the waste water treatment plant on their operations. In that context it is important to note that Letts solicitors approached Wexford Corporation, by letter of 4th November, 2002, with a view to agreeing compensation for the losses suffered as a result of the location of the outfall pipe. This correspondence was replied to on 19th December, 2002 suggesting a meeting in early January of 2003. That meeting took place and it would appear that a detailed calculation of the claim made on behalf of Letts was presented to that meeting.
3.10 It would also appear clear that the details of that claim were forwarded to the Department at that time. It is, in my view, reasonable to characterise the discussions at that time as tri partite involving Wexford Corporation, the State and the mussel fishermen (and most especially Letts – who appeared to be most affected). Thereafter nobody, whether on the side of Wexford Corporation or the State appears to have progressed Lett’s claim for compensation in any material way. For their part Wexford Corporation did not indicate that they took the view (which now forms part of their case) that it was not for them to pay compensation at all because the exclusion zone which was allegedly giving rise to the losses in respect of which Letts were making their claim was not the exclusion zone contemplated in the foreshore licence. Similarly the State does not appear to have taken any action to ensure that an agreement was in place between Wexford Corporation and the mussel fishermen in advance of the waste water treatment plant coming into operation. Clause 14 contemplated that such an agreement would be put in place before the treatment plant became fully operational and gave rise to discharges. In addition no one seems to have raised any queries either at the level of principle or at the level of calculation in relation to the claim put forward by Letts.
3.11 In reality matters were allowed to drift on for a very considerable period of time giving rise, when met with little progress on the matter, to these proceedings.
3.12 Before turning to the legal principles applicable to the question of legitimate expectation I should also note that Letts place some reliance on the fact that over the years very considerable support has been given by the Minister’s Department to the various ventures engaged in, most particularly by Letts but also by other fishermen in Wexford Harbour, designed to improve the overall operation of the mussel farming enterprise. In that context it is said, and I accept, that the Department were aware that Letts, for their part, were making significant investments in their mussel farming enterprise in Wexford Harbour and indeed I am also satisfied that the Department encouraged those developments. Against that overall factual background it is now necessary to turn to the legal principles applicable.
4. Legitimate Expectation – The Law
4.1 In Glencar Exploration v. Mayo County Council [2002] 1 IR 84 Fennelly J. stated:-
“In order to succeed in a claim based on failure of a public authority to respect legitimate expectations, it seems to me to be necessary to establish three matters. Because of the essentially provisional nature of these remarks, I would emphasise that these propositions cannot be regarded as definitive. Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected annually or potentially in such a way that if forms part of a transaction definitively entered into or a relationship between that person or group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. Refinements or extensions of these propositions are obviously possible. Equally they are qualified by considerations of the public interest including the principle that freedom to exercise properly a statutory power is to be respected. However, the propositions I have endeavoured to formulate seem to me to be preconditions for the right to invoke the doctrine.”
4.2 As to the nature of the representation and the relationship between the parties which may give rise to a legitimate expectation Fennelly J. also stated, in Daly v. The Minister for the Marine [2001] 3 IR 513 the following:-
“Those who come within the ambit of an administrative or regularity regime may be able to establish that it would be unfair, discriminatory or unjust to remit the body exercising a power to change of policy or a set of existing rules, or depart from an undertaking or promise without taking account of the legitimate expectations created by them. However the very notion of fairness has within it an idea that there is an existing relationship which it would be unfair to alter.”
4.3 It is also clear that the expectation that the representation will not be resided from must be reasonable. In that context, in Wiley v. Revenue Commissioners [1994] 2 I.R. 160 at 166, the Supreme Court had to consider a claim based upon legitimate expectation maintained by the applicant in that case on the basis of previous decisions which had been made affording him an entitlement to the repayment of excise duty based on medical and other criteria. Despite there being no change in circumstances a more detailed consideration was given to the applicant’s case on the occasion in question and he was refused such an entitlement. The High Court had been satisfied (and the Supreme Court agreed) that on a proper application of the relevant criteria the refusal was correct. In addition it was held that the mere fact that the applicant had (wrongly) obtained a benefit in the past, could not give rise to a legitimate expectation that it would continue into the future.
4.4 There has been some debate as to the extent to which it can be said that a legitimate expectation can relate to a substantive benefit rather than to an entitlement to have a process conducted in a particular way. In Glencar Exploration v. Mayo County Council [2002] 1 IR 84 Keane C.J., (having cited the decision of Costello J. Tara Prospecting v. Minister for Energy [1993] I.L.R.M. 77) said the following:-
“It has been said that this is an unduly restrictive approach and that there is no reason, in logic or principle, why the doctrine cannot be successfully invoked so as to declare a person entitled, in an appropriate case, not simply to fair procedures, but to the benefit which he was seeking in the particular case. (See the decisions of the High Court in Duggan v. An Taoiseach [1989] I.L.R.M. 710 and Abrahamson v. Law Society of Ireland [1996] 1 I.R. 403). It is unnecessary, however, in the context of the present case to determine whether the more expansive approach suggested by those decisions is to be preferred to the view of the law taken by Costello J. in Tara Prospecting Limited v. Minister for Energy.”
4.5 The reference to Abrahamson relates, in particular, to a passage at pages 422/423 of the judgment where, amongst other things, McCracken J. laid down as part of the overall principles the following two matters:-
“3. Where the legitimate expectation is that a benefit will be secured, the courts will endeavour to obtain that benefit or to compensate the applicant, whether by way of order of mandamus or by an award of damages, provided that to do so was lawful.
4. Where a Minister or a public body is given by statute or statutory instrument a discretion or a power to make regulations for the good of the public or a very specific section of the public, the court will not interfere with the exercise of such discretion or power, as to do so would be tantamount to the court ? that discretion or power to itself, and would be an undue interference by the court in the affairs of the persons or bodies to whom or to which such discretion or power was given by the legislature.”
4.6 It would seem, therefore, that even the expanded view taken by McCracken J. in Abrahamson was not such as would permit the doctrine to require that a statutory discretion be exercised in a particular way. In similar vein it has also been suggested that the existence of a policy does not carry with it an entitlement to prevent the policy maker from changing that policy. The doctrine of legitimate expectation may, however, require that the way in which policy changes are effected do not breach existing legitimate expectations. For example in Glenkerrin Homes v. Dun Laoghaire County Council (Unreported, High Court, Clarke J., 26th April, 2007) I was persuaded, on the facts of that case, that a policy adopted by a local authority could not be changed without reasonable notice.
4.7 In the light of those authorities it seems to me that, on the current state of the development of the doctrine of legitimate expectation, it is reasonable to state that there are both positive and negative factors which must be found to be present or absent, as the case may be, in order that a party can rely upon the doctrine. The positive elements are to be found in the three tests set out by Fennelly J. in the passage from Glencar Exploration to which I have referred. The negative factors are issues which may either prevent those three tests from being met (for example the fact that, as in Wiley, it may not be legitimate to entertain an expectation that a past error will be continued in the future) or may exclude the existence of a legitimate expectation by virtue of the need to preserve the entitlement of a decision maker to exercise a statutory discretion within the parameters provided for in the statute concerned or, alternatively, may be necessary to enable, as in Hempenstall, legitimate changes in executive policy to take place. I therefore propose to approach the contentions of the parties as to the existence of a legitimate expectation in this case by first considering the positive elements of the test.
4.8 The first issue which, therefore, arises is as to whether it has been shown that a public authority has made a statement or adopted a position amounting to a promise or representation. On the facts of this case it is contended that it was, at all times, made clear on the part of the Minister that appropriate compensation would be paid in respect of any losses deriving from the permission contained in the foreshore licence to allow the outfall pipe to discharge into the mussel beds in Wexford Harbour. It seems to me that the evidence establishes that the Minister did, indeed, at a minimum, adopt a position which amounts to a representation to the effect that an appropriate compensation scheme would be put in place to deal with any adverse consequences of permitting the waste water treatment plant to operate in that fashion. The first test is, therefore, met.
4.9 The second matter that requires to be established is that the representation or promise must be conveyed either directly or indirectly to an identifiable person or group of persons. Again it seems to me that this test is met. The whole purpose of putting in place a scheme of compensation was expressly directed towards dealing with the concerns of the mussel fishermen. Letts are, therefore, within a group of clearly identifiable persons to whom the promise was made.
4.10 The third test is that the promise or representation must be such as to create an expectation, reasonably entertained, that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it. It is clear that the Minister was persuaded that, in balancing the various rights, entitlements and obligations which were at play in considering to grant the foreshore licence, it was appropriate, in the public interest, to give Wexford Council such a licence, provided that an appropriate compensation scheme was put in place. To resile from that obligation, certainly in the absence of some compelling alternative factor, would, in my view, be unjust. No basis of fact or policy for departing from that promise was advanced.
4.11 As pointed out above in the current state of development of the doctrine of legitimate expectation there are both positive and negative elements which need to be considered. So far as the positive elements are concerned it is necessary that the three tests referred to in Glencar, and which I have already dealt with, are found to be present. For the reasons which I have set out I am satisfied that those tests are met on the facts of this case.
4.12 It is, therefore, necessary to turn to those factors which may limit the operation of the doctrine of legitimate expectation even though the three positive tests may be found to be met. As is clear from Glencar there are limitations on the operation of the doctrine so that it cannot be invoked to require that a statutory discretion be exercised in any particular way.
4.13 While the original decision of the Minister in this case was to the effect that a foreshore licence should be granted (and was, thus, an exercise of a statutory power) it does not seem to me that the question of the grant or otherwise of compensation (or a promise to that effect) was, in reality, a decision within a statutory framework. There is no legislation providing for compensation in this area. The Minister, in deciding whether it is appropriate or not to ensure that compensation be granted, is not, therefore, in my view, exercising a statutory discretion. It is not, therefore, the case that the limitations on the doctrine of legitimate expectation which preclude the Minister from being bound to exercise a statutory discretion in a particular way, have any application to the facts of this case.
4.14 Furthermore it does not seem to me that the further limitation which requires that the executive be free to change policy has any application to this case. One might consider a case where a person or body in a position such as Letts but operating in a different harbour at a different time, were to place reliance on the fact that compensation had been made available to the Wexford mussel harbour fishermen as a basis for alleging a legitimate expectation that they too might be entitled to compensation. It might well be answer to any such contention to point to the entitlement of the Minister to change policy over time. However the representation in this case is specific and related to a particular incidence. It does not bind the Minister to ensure payment of compensation into the future in respect of any other development within the Minister’s control which might impact upon the same or other mussel farmers. It is a promise to ensure compensation in respect of the development of this waste water treatment plant. In my view, therefore, the legitimate expectation of Letts in this case is not in anyway affected by the undoubted entitlement of the Minister to change policy.
4.15 Finally attention is drawn on behalf of both defendants to the fact that, it is said, in none of the legitimate expectation cases to which reference was made at the hearing, was an award of damages made. The only case relied on on behalf of Letts in which damages were in fact paid was Duff v. The Minister for Agriculture [1997] 2 I.R. 22 in which, it would appear, damages were awarded to compensate for a Ministerial mistake of law. However it seems to me that, in truth, Letts case is not so much one in which damages are sought for breach of a legitimate expectation but rather that the legitimate expectation itself is to the effect that compensation should be paid. It is worth noting that the genesis of the doctrine of legitimate expectation in Ireland is frequently traced back to Webb v. Ireland [1988] IR 353 in which case the Supreme Court determined that the plaintiffs were entitled to compensation in respect of the finding of the Derrynaflan Chalice because of representations to that effect previously made. The plaintiffs in Webb were not awarded damages as such, but rather were entitled to the payment of a reward or compensation because the nature of the legitimate expectation itself was to that effect. It seems to me that a similar situation exists here. The nature of the representation or promise here is that compensation will be paid. To give effect to that representation or promise it is necessary that compensation be paid. Compensation is, therefore, the matter in respect of which the legitimate expectation exists. This claim is not, therefore, in my view, properly speaking, a claim in respect of damages for breach of legitimate expectation. I would leave to a case in which that issue specifically arises a consideration of the extent, if any, to which a party may be entitled to damages for a breach of legitimate expectation.
4.16 Before leaving this topic I should make a number of comments.
Firstly it does not follow from the views which I have expressed earlier that Letts necessarily had a legitimate expectation that they would be compensated independent of the representations made on behalf of the Minister in the lead up to the grant of the foreshore licence. Letts place reliance upon the fact, which is undoubtedly true so far as it goes, that the Minister and his officials were aware of, and encouraged, investment by Letts in the harbour. However the facts in Hempenstall v. Minister for Environment [1994] 2 I.R. 20 disclosed that the Minister in that case had permitted, to his likely knowledge, a situation to evolve whereby the value of taxi plates had soared to extremely high levels. It followed that the Minister had, at least tacitly, accepted a situation where he knew that persons were likely to pay very significant sums indeed for taxi plates but where the value of those plates would be decimated as a result of the reforms in the licensing system to be introduced. Nonetheless the Minister was entitled to change policy. I am not, therefore, satisfied that Letts had any necessary legitimate expectation to receive compensation simply because they had invested in the harbour. All investment is open to some risk including a risk that its value will be affected by subsequent regulatory developments and changes in policy. The fact of that investment, of itself, could not, without more, give rise to a legitimate expectation that compensation would be paid in respect of any measures which might affect the value of the investment.
4.17 However for the reasons which I have set out earlier, I am satisfied that the Minister, in substance, made a promise that compensation would be paid and that it would be unjust to allow the Minister to resile from that promise. It is on that basis that the legitimate expectation in this case arises.
4.18 Finally, and as a preliminary to going on to consider the issues which have arisen between the Minister and Wexford Corporation, it is also important to note that, almost by definition, the question of legitimate expectation arises outside circumstances where there are formal legal entitlements. It is, of course, true to say that the foreshore licence was entered into between the Minister and Wexford Corporation. The rights and obligations specified in that licence are, therefore, those of the parties to it. If the mussel farmers had been party, at that time, to an agreement which defined the legal rights and obligations of all of the parties, then it might well be that it would be difficult to invoke the doctrine of legitimate expectation to suggest that the rights of mussel farmers went beyond those which had been formally agreed. However, as I have indicated, where parties have legal entitlements it is unnecessary for them to invoke the doctrine of legitimate expectation. The doctrine would, therefore, be redundant, if it were confined to cases where parties had rights in contract, tort or the like.
4.19 The doctrine of legitimate expectation is often seen as the public law counterpart of the equitable doctrine of estoppel. Without necessarily pushing the analogy too far it is, in my view, apposite to note that the doctrine of estoppel is designed specifically to deal with a case where it is not considered equitable to permit a party to rely on what would otherwise be their formal legal entitlements. In similar vein the doctrine of legitimate expectation is designed to ensure that a public authority may be required to deal with matters in a certain way when it would not be just to permit the public authority to rely on its strict legal rights. The fact that Letts and the mussel farmers in general are not parties to the foreshore licence does not, in my view, therefore, affect their entitlement to invoke the doctrine of legitimate expectation. They are, however, entitled to place reliance on the existence of that licence as part of their evidence for suggesting that the Minister has made a representation amounting to a promise sufficient to trigger the operation of the doctrine. In the same context I should state that there is one aspect of the application of the doctrine which arises from the foreshore licence and to which it will be necessary to return after I have considered the position as and between the Minister and Wexford Corporation to which I now turn.
5. The issues between the defendants
5.1 In simple terms the case made on behalf of Wexford Corporation is to the effect that the exclusion zone put in place by the Minister was not the exclusion zone contemplated by the foreshore licence. The factual basis for that contention is relatively straightforward. The relevant provisions of the foreshore licence granted to Wexford Corporation on 1st April, 2000 are as follows:-
“12. The Minister shall, following a scientifically based study, determine the initial shell fishing Exclusion Zone around the said outfall pipe and diffuser, a microbiological and viral monitoring programme to allow those exclusion zones to be suitably amended as necessary shall be carried out on behalf of the Minister. The costs associated with the said study and monitoring programme shall be borne by the Licensee.
13. No liability shall attach to the Minister in respect of any claim for compensation by mussel fishermen arising from the operation of this licence.
14. Any claims for compensation for proven loss of income shall be assessed and settled in accordance with an agreement which shall be entered into by the Licensee with mussel fishermen prior to any discharge from the outfall pipe and diffuser. In the event that the Minister is satisfied that the Licensee has made a bona fide effort to enter into such an agreement on reasonable terms and the mussel fishermen refuse to enter into such an argument, this condition shall not apply”.
5.2 It would appear from the evidence that the terms of the foreshore licence were the subject of significant, protracted and, at times, difficult negotiations between Wexford Corporation and senior officials in the Minister’s Department. Indeed matters went so far that it would appear that direct contact between the Secretary General of the Minister’s Department and the Secretary General of the Department of the Environment (which department has an overseeing role in respect of local authorities including Wexford Corporation) was required before the final terms of the licence were agreed.
5.3 In those circumstances it is very surprising indeed that aspects of the scheme so carefully negotiated and worked out as a result of those discussions, seems to have been effectively abandoned immediately after the licence was granted. As is clear from clause 12 of the licence, what was contemplated was that there would first be a study and as a result of that study an exclusion zone would be imposed. Further studies were to be carried out from time to time as a result of which the exclusion zone might be amended in the light of the further information revealed in the course of such studies. However it is absolutely clear that the exclusion zone contemplated in the licence was one that would be put in place after a study. It is common case that no such study was, in fact, carried out.
5.4 Instead it would appear that it was decided to adopt an approach based on the so called “precautionary principle”. Under this principle it is regarded as appropriate to adopt a precautionary approach to environmental protection and safety so that until there is adequate knowledge of the possible consequences of a particular proposal, care requires to be exercised in the manner in which new processes or developments are carried out. In other words rather than adapting a view that the new process or development should go ahead because where is no evidence that the proposed measures will cause any harm, the view is taken that such proposals should not go ahead (or should, more likely, only go ahead under strict conditions and monitoring) until such time as it has been shown that they will not, in fact, do harm.
5.5 There can be little doubt but that it was reasonable to take such a view in all the circumstances of this case. The exclusion zone was, therefore, fixed as a precaution until such time as there might be adequate evidence to satisfy the relevant authorities that there was no danger from the operation of the waste water treatment plant.
5.6 That arrangement was not, however, what was agreed in Clause 12 of the foreshore licence. It seems to me, therefore, that Wexford Corporation are correct when they argue that the exclusion zone that was imposed by the Minister was not, in fact, the exclusion zone contemplated by the foreshore licence.
5.7 Clause 13 of the foreshore licence does, of course, provide that no liability should attach to the Minister in respect of any claims for compensation by mussel fishermen “arising from the operation of this licence.” It seems to me that such claims could, in theory, have arisen in one of two ways. Firstly the actual operation of the waste water treatment plant and the discharge from it on to the mussel beds could, of itself, have given rise to damage to the mussel beds giving rise, in turn, to a claim in compensation. For example the waste water treatment process might not have worked as expected, and damaging effluent could have been discharged onto the mussel beds with consequent loss. It is clear that any such losses were not for the account of the Minister. Similarly it seems to me that the combined effect of Clauses 12 and 13 make it clear that any losses deriving from the operation of the exclusion zone contemplated by Clause 12 were also a matter for Wexford Corporation.
5.8 However it seems to me that losses derived from the imposition by the Minister of an exclusion zone other than the exclusion zone referred to in Clause 12 (or one imposed to meet the consequences of an actual failure in the plant) cannot be said to be losses arising from the operation of the licence.
5.9 It seems to me, therefore, that Wexford Corporation are correct in their contention that the licence does not impose upon them an obligation to pay any compensation which arises from the imposition of an exclusion zone outside the terms of the licence. For the reasons which I have set out I am satisfied that the exclusion zone that was in fact imposed was outside the terms of the licence. For those reasons it does not seem to me that Wexford Corporation have any liability to pay compensation in this case. There was no suggestion that the operation of the plant itself gave rise directly to any losses.
5.10 However before leaving this aspect of the case a number of additional matters need to be addressed. Firstly it is important to note that Clause 14 contemplated that there be put in place an arrangement between Wexford Corporation and the mussel fishermen prior to the commencement of operation of the waste water treatment plant. As indicated earlier Letts put in a claim for compensation, which claim suggested a basis for the calculation of loss. It is clear that that claim was based on the fact of the existence of that exclusion zone. No one in Wexford Corporation at that time took the trouble to tell Letts that they should not be looking to Wexford Corporation for compensation in respect of that exclusion zone because it was not the exclusion zone contemplated in the foreshore licence. Neither, it should be said, did anyone in Wexford Corporation, or indeed anyone within the Department who had knowledge of the claim, indicate to Letts they were not going about things in the right way or that the basis upon which they putting forward their claim was misconstrued.
5.11 Also there was never any question of the proviso contained in the last sentence of Clause 14 coming into operation. That proviso, in effect, permitted the Minister to allow the waste water treatment plant to open notwithstanding the absence of an agreement between Wexford Corporation and the mussel fishermen on a scheme for compensation, where the Minister was satisfied that Wexford Corporation had acted reasonably in negotiations but that the mussel fishermen had not. In this case there were no negotiations. Letts put in a claim and the matter was let lie without rejection, counter offer or indeed even discussion for a considerable period of time during which the Minister clearly allowed the waste water treatment plant to commence operations.
5.12 In this respect also it has to be said that it is difficult to understand why carefully drafted and considered formal legal documents are put in place and then ignored. The Minister put in place a foreshore licence which contemplated one type of exclusion zone. For reasons which are undoubtedly understandable he then put in place a different type of exclusion zone. However no one seems to have paid attention to the fact that it might have been appropriate to revisit the terms of the foreshore licence given that the exclusion zone that had now been put in place was different from that contemplated in the licence. In addition neither the Minister nor Wexford Corporation seems to have given significant attention to what was contemplated in Clause 14 about an agreement for a compensation scheme being in place prior to the operation of the plant. No evidence was tendered that provided any meaningful explanation as to how a licence which has come about as a result of protracted negotiations was, in at least those two important respects, completely ignored thereafter.
5.13 I indicated earlier that I would, when I had considered the issues as and between the Minister and Wexford Corporation return to one aspect of the question of the legitimate expectation of Letts. It is clear that the foreshore licence contemplated that mussel fishermen would be compensated for any “proven loss of income”. It does not seem to me that it would be just to allow the Minister to resile from the implicit promise contained in that document and deriving from the discussions between the parties at or around that time, just because the Minister chose to put in place, for reasons which were never fully explained, an exclusion zone which went outside the terms of the foreshore licence itself.
5.14 In those circumstances I am satisfied that Letts have established an entitlement to a legitimate expectation that they would be paid compensation for any “proven loss of income” and that that legitimate expectation lies against the Minister. I am not satisfied that any liability to pay such loss has been established as against Wexford Corporation. It follows that it is necessary to turn to the question of the calculation of such loss and to award any sum which may have been shown to have been lost as against the Minister alone. I, therefore, turn to the question of the calculation of the appropriate amount of compensation.
6. Compensation
6.1 Before going on to consider the detail of the claim made on behalf of Letts for compensation a number of background matters of fact which are not in significant dispute need to be set out for the purposes of understanding the way in which that claim is made and also for the purposes of understanding the very significant issues which have arisen between the parties as to the proper calculation of that compensation.
6.2 I have already noted earlier in the course of this judgment that it is necessary to divide the question of the assessment of compensation into two periods being the period up to the decision taken in June 2006 by the Minister to discontinue the exclusion zone and the period thereafter. I also noted that it is contended on behalf of the State (and was, indeed, contended on behalf of Wexford Corporation) that no losses have in fact occurred in either period. The State and Wexford Corporation adopted a joint approach to resisting the quantum aspect of Lett’s case.
6.3 It is appropriate to start with a description of the way in which Letts conducted their business. For many years it is clear that Letts adopted a practice of dividing the totality of the mussel beds available to them in Wexford Harbour into two parts. The two parts operated on a staggered basis which was necessitated by reason of the seasonality associated with the laying of seed, its harvesting and the time taken for the seed to grow to a sufficiently mature state to be harvested. These features of the mussel harvesting business led naturally to a two year cycle in respect of any mussel bed. For that reason there was obvious sense in operating two separate areas on a staggered basis so that in each alternate year seed was laid in one set of beds and harvested in the other with the process being reversed in the second year.
6.4 Against that background historical figures concerning the level of mussels laid and harvested by Letts going back over a number of years were established in evidence. While there are some issues between the parties as to individual items of fact within those figures and also as to some areas of interpretation, it is fair, in my view, to describe those facts as being largely uncontroversial.
6.5 While it will be necessary to analyse those records in greater detail, for present purposes it is sufficient to note that the financial year of Letts has ended on 31st March in each year at all material times. It is common case that the mussels harvested in any financial year would have been laid in the calendar year two years before the March end date of the relevant financial year. Thus, for example, seed harvested in the financial year ending the 31st March, 2004 would have been laid in the calendar year 2002. For quite some time the staggered pattern to which I have referred resulted in seed from mussel beds 30A and 30D being harvested in financial years ending in an even number while mussels in beds 30E and 30F were harvested in financial years which ended in an odd number. As pointed out earlier the exclusion zone affected areas 30A and 30D. While it did not cover the entirety of those areas it did have a very significant effect indeed on the ability to use those areas in any effective manner.
6.6 It will, therefore, be seen that the direct effect of the presence of the exclusion zone was to prevent a significant part of areas 30A and 30D from being used but only in practice, so far as harvesting was concerned, with an effect on production in every second year given that those areas would only have generated harvested mussels in every second year. In practice, therefore, it is contended that the existence of the exclusion zone prevented the laying of seed in the calendar year 2002 (on the evidence it would almost certainly have been extracted from the sea and re-laid in the period June to October 2002) and the consequent harvesting of that seed in the financial year ending 31st March, 2004. Again it would appear that the relevant harvesting would have occurred after approximately September 2003 but before the end of the financial year. Up to the time when it became clear that the exclusion zone was discontinued, Letts had formulated their claim based on an estimate of existing losses and projected losses into the future for five seasons being the seasons in which harvesting would have taken place in the financial years ending 31st March in respectively 2004, 2006, 2008, 2010 and 2012.
6.7 When it became clear that the exclusion zone had been discontinued it followed that losses on the basis of the presence of an exclusion zone into the future were not going to occur. On that basis alternative evidence was subsequently presented on behalf of Letts to suggest that very considerable sums indeed would now need to be expended for the purposes of restoring the relevant mussel beds to the state in which they were prior to the exclusion zone being established. The extent to which any such works are necessary was a matter of very considerable contention. At the level of principle the argument put forward on behalf of Letts was that one of the consequences of the existence of the exclusion zone was that the relevant mussel beds were neither laid nor harvested for a four to five year period. As a result of that it is said that there was a build up of silt and other materials which rendered most of the beds incapable of effective economic use without remediation. Therefore, it is said, it follows that the cost of that remediation necessarily flows from the existence of the exclusion zone.
6.8 The issues which arise in relation to the calculation of compensation are many. So far as the questions concerning loss from the time of the removal of the exclusion zone are concerned, these turn on whether and if so to what extent, remedial works may be required which can be attributable to the existence of the exclusion zone.
6.9 So far as the earlier period is concerned there are very serious contentions between the parties as to the extent to which Letts did, in fact, suffer any loss to date. I will shortly turn to the detail of those arguments. However they raise one unusual and major issue which it is necessary to address at the beginning.
6.10 In the events that have happened it would seem that the total level of mussels harvested by Letts since the exclusion zone came into being has not fallen short of the amount of mussels that had, historically, been harvested, at least when one takes into account an appropriate allowance for the effects of the bridge works to which I referred earlier and in respect of which Letts have already been compensated.
6.11 The fact that there has not, therefore, been a drop off in the level of production as a result of the existence of the exclusion zone allowed the defendants to suggest that there had, in reality, been no loss. However the case made by Letts is more subtle. It is said (and so far as it goes I accept that the evidence establishes this) that it has now become clear that the beds in question are capable of a much higher level of mussel production than had previously been thought possible.
6.12 I am satisfied on the evidence that it is the case that the mussel beds concerned are, in fact, capable of a significantly higher level of production than that which had been achieved up to the imposition of the exclusion zone. I am again satisfied on the evidence that a number of matters led to this discovery.
6.13 Firstly, I accept the evidence of Mr. Desmond Lett to the effect that he attempted to place a higher level of mussel seed in the remaining beds within areas 30A and 30D to see if he could compensate for the production lost by reason of not being able to use that part of those beds contained within the exclusion zone. That experiment proved successful and demonstrates an ability on the part of beds 30A and 30D to produce a higher level of production than had previously been achieved.
6.14 Secondly, I accept the evidence to the effect that advice was given to mussel farmers generally to attempt to increase the level of production from individual beds so as to make the activity generally more economic.
6.15 Finally, it also seems clear that the existence of these proceedings has led to a much greater level of knowledge being available concerning the mussel beds within Wexford Harbour and in particular beds 30A, 30D and the other beds licensed to Letts. It could reasonably be said that no other part of the foreshore in the State has been the subject of such minute examination by a variety of experts. The level of knowledge of those beds and their capabilities has, undoubtedly, increased significantly by reasons of the preparation of the various expert reports which were required to deal with this litigation.
6.16 From the above factors it clear that, at least in part, the increased knowledge which has led to the realisation that the relevant beds are capable of a higher level of production stems from the very fact of the imposition of the exclusion zone itself. Furthermore, if there had been no exclusion zone then it may well be that the pressure on Mr. Desmond Lett to seek to achieve a higher level of production from the other parts of beds 30A and 30D would not have occurred and he might not, then, have learned, or at least learned as quickly, of the capability of the beds to sustain a higher level of production. In addition, as I have pointed out, there is no doubt but that the level of scientific knowledge now available about Letts beds would not be available were it not for these proceedings.
6.17 Taking a very strict view of the principles applicable to the calculation of compensation it might, on one view, be argued that the court should disregard any additional capability of production which could be said to be attributed to an increase in knowledge or understanding which in turn derived from the existence of the litigation in the first place. Put simply it might be argued that in the event that there had been no waste water plant and no outfall pipe, Mr. Lett might not have learned of the capability of the beds to produce a higher level of production. While there is, in strict theory, an argument to that effect it does not appear to me that it would give rise to a just result. The reality is that Mr. Lett did, in fact, learn of the higher production capabilities of his beds. It would, in my view, be unjust in principle to deprive him of the benefit of that knowledge just because it may, at least in part, have only come about because of the litigation.
6.18 On the other hand, it is clear that the knowledge as to the increased production capabilities of the relevant beds did not come about instantaneously on the imposition of the exclusion zone. It seems to me, therefore, that I should, as a matter of principle, approach the calculation of loss on the basis that Letts would have realised, over time, the increased capabilities for production of the beds and would, therefore, in the absence of the exclusion zone, have attempted to exploit those beds to a greater extent than they had up to the imposition of the exclusion zone. The extent and timing of any such likely increased exploitation which would have occurred had there not been an exclusion zone is necessarily a matter of estimation and judgment in the light of the evidence as a whole. I propose dealing with that estimate in the context of the overall evidence concerning the production which might be said to have been lost by reason of the existence of the exclusion zone. It should also be noted that the defendants suggest certain factors which, it is said, should lead the court to the view that Letts either could not or would not have, in fact, raised production. Having dealt with the issue of general principle I now turn to Lett’s claim for losses to date.
7. Losses to Date
7.1 The way in which Letts put forward their claim is relatively straightforward. The total size of areas 30A and 30D was calculated as amounting to 85.77 hectares. It was common case that 14.78 hectares of that area had been subject to damage in 1995/96 as a result of the bridge works to which I have referred. The useful remaining area within areas 30A and 30D was, therefore, in my view, correctly asserted by Letts to be 70.99 hectares.
7.2 As calculated by Letts the portion of beds 30A and 30D covered by the exclusion zone is 45.11 hectares. For reasons which I have already dealt with I am satisfied that that is a correct estimate of the size of the exclusion zone that Letts were entitled to believe was in place. I propose approaching the case on that basis rather than on the basis if the slightly smaller exclusion zone that would have derived from a calculation based on 500 metres from the outfall point as actually constructed. I am satisfied that the figure calculated by Letts is, therefore, correct.
7.3 The case made by Letts started with a calculation of the production per hectare achieved in the non-excluded portion of 30A and 30D in the 2002 – 2006 period. It was, therefore, assumed that a similar level of production could have been achieved in the excluded portion of those beds. On the basis of such a simple calculation, an amount of lost production was arrived at. The price that could have been obtained for that alleged lost production was then calculated and certain additional costs of production were factored in to reach a figure as to the net loss for each season.
7.4 The calculation as finally presented on behalf of Letts was in the following form. I set out the calculation as claimed in respect of the harvesting year 2005/6. A similar calculation was also provided in respect of the harvesting year 2003/4.
7.5 Harvesting Season 2005/6
Tonnes Lost:
45.11 Hectares (number of hectares) X 39.04 tonnes
(average production per hectare) X 1 season – 1761 tonnes
Sales Value per tonne:
€1,050
Gross value of lost tonnage in one season:
1761 X €1,050 = €1,849.050
Less variable cost increases:
Seed requirement
1761 tonnes/0.83 yield = 2122 tonnes
Estimated Seed Price €311 Per Tonne
2122 X €311 €659,942
Additional Dredger costs in planting and fishing
Fuel
Add 25% of 2005/6 costs €3,130
Manpower
Provide 15% of 2005/6 costs for O/T €16,501
Additional Delivery costs
Freight out –
@ €1675 per load (in 2005/6) of
average 16.4 tonnes (net)
1761 X €102 per tonne = €179,622
Bags
1761 X €0.50 € 880
Pallets
1761 X €4 € 7,044
Insurances
Marine: 0.0021% of €1,849,050 (sales value) € 3,883
Credit: 0.0029% of €1,849,050 € 5,362
Total Variable Cost Increases €876,364
Loss €972,686
7.6 Before going on to analyse those figures it is important that I touch upon a question which loomed large in the course of both the evidence and the submissions, that is to say issues concerning the credibility of the case being put forward on behalf of Letts.
7.7 It is correct to state that the claim as made by Letts went through a number of different variations between the claim as originally presented to Wexford Corporation prior to the commissioning of the waste water treatment plant and the end of the case. I have already touched upon the fact that there is an entirely reasonable and appropriate explanation for the first change in the basis of the claim. That stems from the fact that the original claim as presented to Wexford Corporation was an estimate in advance of any experience on the ground while the subsequent claims sought to incorporate that experience.
7.8 As is normal practice in the Commercial Court the parties in the course of the pre-trial process exchanged expert reports. It was clear from the expert reports filed on behalf of the defendants (and in particular the report of Mr. Grant, the defendants’ financial expert) that criticism was directed towards Letts methodology by reason, amongst other things, of an alleged failure to have proper regard to the extra costs that would have been involved in achieving the additional production on which the claim as to loss was predicated. It is clear that Letts experts took that criticism on board and attempted to incorporate an appropriate allowance for such additional costs into further figures which were then produced. Far from being a legitimate matter of criticism it seems to me that it was entirely appropriate that Letts experts should take that course of action. Part of the purpose behind the exchange of expert reports in advance of a hearing is to enable the experts to consider the competing point of view of their opposite number and, where appropriate, to take on board, in whole or in part, any such competing view. I cannot, therefore, see that there is anything inappropriate in the further evolution of Letts figures designed to meet the legitimate concerns expressed by the defendants’ experts to the effect that insufficient regard had been paid to additional costs.
7.9 In addition it was, of course, necessary to recast Letts claim in the light of the developments concerned with the discontinuance of the exclusion zone. All in all I am not satisfied that any credible reason has been established for suggesting that Letts claims were not at all material times bona fide made. That is not to say that they are necessarily correct. It is simply to record that I am not satisfied that it has been shown that the claims lacked credibility. On the contrary I am satisfied that a reasonable explanation for each of the alterations which occurred in the claim as put to the court has been given.
7.10 Finally I should note that the claim in its final form (as for example shown in the Table at para. 7.5 above) had regard to the fact that the losses to date were, by that time, confined to the two harvesting years 2003/4 and 2005/6.
7.11 I will return in due course to the harvesting year 2005/6. However different considerations, it seems to me, arise in relation to the harvesting year 2003/4. It will be recalled that the mussel seed harvested in that year would have been required to be sourced and laid during 2002. There is no evidence to suggest that, as of that time, anyone in Letts was, in fact, aware of the potential for a higher level of production in the mussel beds and in particular mussel beds 30A and 30D. It is, of course, the case that it was the laying of a higher level of seed, in that season, in the remaining portion of beds 30A and 30D (i.e. the portion not covered by the exclusion zone) and the subsequent positive results that flowed from it, that led to the increased knowledge as to the productive capacity of the beds thereafter. However it seems to me to be most unlikely that Letts would have chosen (in the absence of an exclusion zone) to suddenly move from a well established level of production to one which would have been almost double that which had historically been the case without having at least some clear evidence that such a higher level of mussel seed laying would bear dividends. I have set out, at para. 8.1, a conclusion as to the approach which would have been likely to have been adopted for 2005/6 by Letts. Those considerations apply, to a much more extreme extent, to 2003/4.
7.12 In all the circumstances it seems to me that it is more appropriate to approach the harvesting year 2003/4 on the basis that Letts suffered a loss of an opportunity to exploit mussel beds 30A and 30D in a more intensive fashion than had up to then been the case. Having regard to the fact that no information would have been available in advance of the laying of seed for that season which would have supported the likelihood of such significantly increased production being available, it does not seem to me that that loss of opportunity can be rated too highly.
7.13 As is clear from the decision of the Supreme Court in Philip v. Ryan (Unreported, Supreme Court, Fennelly J. 17th December, 2004) a court faced with attempting to assess the consequences of hypothetical events, is required, as a first step, to asses the likelihood of the event occurring. In the course of his judgment in Philip Fennelly J. quoted with approval from the speech of Lord Reid in Davies v. Taylor (1974) A.C. 207 in the following terms:-
“When the question is whether a certain thing is or is not true – whether a certain event did or did not happen – the court must decide one way or the other. There is no question of chance or probability. Either it did or did not happen. But the standard of civil proof is a balance of probabilities. If the evidence shows a balance in favour of it having happened then it is proved that it did in fact happen.
But here we are not and could not be seeking a decision either that the wife would or that she would not have returned to her husband. You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All you can do is to evaluate the chance. Sometimes it is virtually one hundred per cent; sometimes virtually nil. But often it is somewhere in between. And if it is somewhere in between I do not see much difference between a probability of fifty one per cent and a probability of forty nine per cent.”
7.14 In Philip the court was concerned with the consequences of a failure to advise the plaintiff in that case correctly, in a medical context, and the consequential possibility that, having been properly advised, different decisions might have been taken. It was, on the facts, far from certain that a different decision would have been taken had proper advice been given. However the court considered that the plaintiff was entitled to damages for the loss of the opportunity to make a properly informed decision but was, in approaching the question of damages, also concerned with determining the likelihood, in all the circumstances, that anything different would have happened in the event that proper advice had, in fact, given.
7.15 Thus in a case where it is virtually certain that a party would have taken an alternative course had it not been for the compensatable wrong, then the court should assess damages at or close to the full value of the claim based on the assumption that the alternative course would have been adopted. Some discount perhaps might be allowed to reflect the small possibility that the alternative course might not have been adopted. At the other end of the scale, where it would appear most unlikely that anything different would have happened in the event of the wrongdoing not having occurred, then the damages are likely to be small or even nominal. While the speech of Lord Reid speaks of past and future events it seems to me that there is, in reality, included within the “future” events, hypothetical questions as to what would have occurred post the wrongdoing but which would, in fact, have occurred (if they were to be assumed to have occurred) prior to the case coming on for hearing. Such issues are equally hypothetical as questions as to what would happen in the future. In other words what someone would, in fact, have done had it not been for the wrongdoing is every bit as much a hypothetical question as what they will do in the future in the light of the wrongdoing.
7.16 Applying that principle to the facts of this case it seems to me that, in relation to the season 2003/4, I need to consider the extent of the likelihood of Letts having achieved any significant increase in production were it not for the imposition of the exclusion zone.
7.17 For the reasons which I have set out it seems to me that it is highly unlikely that Letts, in that season, would have done more than slightly increase (if at all) the level of production given the absence of any real data from which they could have inferred, at the time of laying the relevant seed, that an aggressive attitude to production was likely to be successful.
7.18 In all the circumstances it seems to me to be appropriate to assess the loss of opportunity for that season in the sum of €50,000.
8. The Season 2005/6
8.1 However a different situation had come about by the time the 2005/6 harvesting season had arrived. By the time seed was laid for that season (in 2004) there was a significant volume of additional data available which suggested that a much higher level of production could, possibly, be achieved. For the reasons which I have analysed above, it would not seem to me to be just to disregard the fact that, in reality, Letts had that additional knowledge by the time that decisions would have been made in 2004 leading to an effect on the production season 2005/6. However, at the same time, it does seem to me to be unrealistic to assume that Letts would, in one harvesting season, have been willing, or have found themselves in a position, to move to the maximum level of production. In coming to that view I have had regard, firstly, to the fact that the knowledge as to the production capabilities of the mussel beds concerned was only emerging at that time. I have also regard to the fact that, while progressive and innovative over the years, Letts policies do not convey to me a sense of a company that was necessarily at the very high end of the risk taking spectrum in commercial terms. As will be seen from the table above the maximum possible loss attributable to potential production in the season 2005/2006, in terms of the gross amount of the tonnage lost was, based on 1,761 tonnes lost. While it is impossible to make any detailed calculation of the amount of additional tonnes that might have been considered by Letts to be prudent to attempt to produce in that season (from beds 30A and 30D, and in the absence of an exclusion zone), it is, in my view, appropriate to consider the maximum tonnage that might have been attempted to be approximately 850 tonnes. It will also be necessary to address in due course a number of issues raised which suggest further limitations on that figure.
8.2 I should, at this point, emphasises that while very significant attacks indeed were mounted by the defendants against the assumptions made in Letts claim as to the amount of lost tonnage, there was no major attack on the details of the costs figures that were included in the final version of Letts claim and which are set out in the table referred to earlier in this judgment. Taking the bottom line from that table, reducing the number of tonnes of production said to have been lost and making an appropriate allowance for the fact that the additional costs attributable to the extra production may have been slightly understated, I have come to the view that the sum attributable to the maximum amount of possible lost production for the harvesting year 2005/6 is €450,000.
8.3 While it would be possible, in theory, to attempt what would superficially be a more mathematically rigorous means of calculating both that sum and, indeed, the sum of €50,000 which I have determined as appropriate for the earlier harvesting season, it seems to me that such an exercise would lend a false air of scientific rigour to the process.
8.4 These losses are quite hypothetical. Predicting what would have happened during the relevant harvesting season in the absence of an exclusion zone is highly problematic. The possibilities vary widely and it is only possible to estimate, as best one can on the evidence, the most likely scenario. In those circumstances a detailed calculation resulting in a very specific figure would falsely suggest that the losses were capable of precise calculation.
8.5 I should now deal with a number of other issues that arose in the course of the hearing, and which, if correct, would lead to a conclusion that even the level of additional production on which the above figures are predicated was either not possible or would not have been attempted.
8.6 Much evidence and argument was addressed to the question of availability of mussel seed. It was suggested by the defendants that a significant limiting factor on the ability of Letts to increase production would have been a lack of supply of mussel seed. There can be little doubt but that some difficulties have been encountered in obtaining mussel seed in the traditional manner from the Irish Sea. However Letts tendered evidence, which I accept, to the effect that there is a growing possibility of so called “rope mussels” being made available as mussel seed. Rope mussels are mussels grown on ropes (as the name implies) which can be permitted to grow to maturity on the rope and harvested by the aquaculturist concerned. As an alternative the rope mussel grower may chose to spread his risk by selling some of his rope mussels at a stage where they are suitable to be transported to mussel beds such as Wexford. While some doubt was cast upon the stability of that available source, I am satisfied that it has the potential to make a significant contribution to the availability of mussel seed for companies such as Letts.
8.7 It may well have been the case that it would have been necessary, in the event that I was required to calculate loss into the future on the basis of the existence of a continuing exclusion zone, to take a view as to whether, and if so to what extent, the difficulty in sourcing mussel seed might have been a limiting factor on the overall ability of Letts to further increase and sustain their production.
8.8 If that had been the case I would have come to the view that there might well have been difficulties in Letts increasing their production by more than 1,250 tonnes per annum and that any estimate of the loss of future income that involved a contention that production could have grown by more than that amount would have to have been discounted to reflect the risk that such additional production could not be achieved by reason of the absence of sufficient mussel seed.
8.9 However, as is clear from the calculations set out above, same are not based on a suggestion that Letts would have produced anything more than 850 tonnes extra in any of the two harvesting seasons which I now have to consider. I am not satisfied that the evidence supports the view that Letts would have had any difficulty, attributable to the availability of mussel seed, in achieving that level of increased production.
8.10 Secondly a lot of evidence and argument was directed towards the question of the general profitability of Letts mussel seed business. There is no doubt that in most years in the recent past Letts traded at a loss.
8.11 The following table shows the profits and loss for the various financial years between 1996/1997 and 2002/2003
Year ended 31 March 2003 – Loss (€246,461)
Year ended 31 March 2002 – Profit (119,252)
Year ended 31 March 2001 – Loss (600,428)
Year ended 31 March 2000 – Loss (€417,773)
Year ended 31 March 1999 – Loss (€473,256)
Year ended 31 March 1998 – Loss (923,493)
Year ended 31 March 1997 – Loss (€504,909)
8.12 In addition the actual profit before tax and before exceptional items and inter company adjustment for the year ended 31st March, 2004 amounted to a profit of €10,448. It is clear, therefore, that, as a matter of fact, Letts have made significant losses in recent years. It is not clear as to the extent to which those losses could be said to be attributed to exceptional events (including the effect on their mussel beds of the bridge developments in Wexford Harbour to which I have referred). At the end of the day, however, it does not seem to me that this factor is really very relevant. A company which would have made losses of €100,000 but which as a result of some external compensatable event suffers losses of €500,000 has suffered a loss of €400,000 just as much as a company whose profits are reduced by that amount. There obviously may be limiting factors where the court may have to take in account the possibility that losses which would have occurred, even in the absence of the compensatable event, might have led to the business not continuing in any event irrespective of that event. However there is no evidence to suggest that such an eventuality had any likelihood in this case. It does not, therefore, seem to me that the question of the historical losses of Letts is of any real relevance. Provided that they were worse off because of the exclusion zone, then they had a legitimate expectation that they would be compensated to the extent that they were worse off.
8.13 A further issue relied on by the defendants was to suggest that Letts had made insufficient use of certain other mussel beds within Wexford Harbour which are licensed to them. There was a significant dispute between the parties as to the extent to which those beds were capable of effective beneficial use.
8.14 The case made on behalf of the defendants suggested that a number of inferences should be drawn from the level of use which Letts have, in fact, made from their other beds. Firstly it is suggested that Letts failed to mitigate any loss attributable to the presence of the exclusion zone by failing to attempt to make proper use of those mussel beds in substitution for the productive capacity lost by reason of the imposition of the exclusion zone.
8.15 Secondly it is suggested that the absence of significant production in those beds over the years is consistent with the suggestion put forward on behalf of the defendants to the effect that there were other limiting factors (such as the lack of availability of mussel seed) on the production capabilities of Letts. That, in turn, it is said, leads to the suggestion that the imposition of the exclusion zone did not have the effect contended for. If it were, in fact, the case that the total amount of mussel seed available to Letts was in fact fixed by reason of external factors then it would, of course, follow that Letts would have been unable to increase the overall level of their production when the increased productive capabilities of beds 30A and 30D were discovered. Given that it proved, in practice, possible to produce the same level of production from those portions of beds 30A and 30D outside of the exclusion zone then, it would follow, it is argued, that no losses at all could be said to arise.
8.16 In a related issue there was a significant amount of evidence concerning problems encountered by Letts in relation to one of their boats which was out of action by reason of an absence of having an appropriate licence for a number of months. This issue was, tangentially, relevant to the question of the appropriate inferences to be drawn from the reduced mussel production achieved by Letts during the relevant season. I should state that I am not satisfied (contrary to the case made by Letts) that there was anything inappropriate in the actions taken by the relevant officials of the Minister’s department in relation to the licensing of the boat concerned. It may well be that there could have been more effective communication between Letts on the one hand and the Minister’s officials on the other hand. I am, however, satisfied that Letts were at least as responsible (if not more so) for any failure of communication. In any event I am satisfied that factors such as the problems encountered in licensing the boat are no more than the difficulties frequently encountered by any business operating within a regulatory regime where, for wholly understandable reasons, a more strict approach is now taken to health and safety issues than might heretofore have been the case. I do not, therefore, believe that it is appropriate to draw any inference one way or the other from the reduced production which was attributable to the boat in question being out of commission by virtue of being unlicensed for the period concerned.
8.17 The fundamental questions which arise in relation to the use of the other mussel beds concern the extent to which it was practical or reasonable to expect Letts to have sought to have used those beds. There is no doubt, in my view, but that there was the potential for significant difficulties to be encountered in seeking to commercially exploit the beds in question. They are undoubtedly all located in very shallow water. It seems to be common case that at least some portion of the beds are not, in practice, capable of commercial exploitation. The evidence tendered on behalf of the State does seem to suggest that some degree of exploitation would have been possible in respect of some parts of the beds concerned, but I am equally satisfied that any such possible exploitation was significantly circumscribed by reason of the shallowness of the beds and, in many cases, the presence of rocks or stones. Furthermore it seems clear that exploitation would only have been possible in most cases during higher tides when the shallowness would not have been as much of a problem.
8.18 Finally it should be noted that the level of detailed knowledge of these beds is almost certainly greater now (not least because of the many expert reports prepared in respect of these proceedings) than would have been the case at the time when Letts would have made their decisions concerning the possible exploitation of those beds as an alternative to the beds lost to the exclusion zone.
8.19 In all the circumstances of the case I have come to the view that, while it would, factually, have, with the benefit of hindsight, been possible to exploit a relatively small amount of the beds in question, I am not satisfied that it would be appropriate to regard Letts as having failed to mitigate their loss in this regard. The exploitation of the beds concerned would have been problematic. Success, while possible, was by no means guaranteed. It is far from being beyond the bounds of possibility that any attempted exploitation could have resulted in additional losses rather than gains which might be set off against the claim in this case. I am not, therefore, satisfied that it would be appropriate to conclude that Letts have failed to mitigate their loss.
8.20 Likewise I am not satisfied that it is appropriate to draw any inference from the failure to exploit those beds either during the existence of the exclusion zone or, indeed, before that time, to the effect that there were limiting factors on the level of possible production. The more appropriate inference to draw is that the exploitation of those beds was legitimately seen as problematic and uncertain. It is, however, important to note that the record of Letts in relation to the exploitation of those beds provides a further basis for the conclusion which I drew at para. 8.1 to the effect that it is unlikely that Letts would have adopted a high risk approach to the possible exploitation of the emerging knowledge concerning the increased production capabilities of beds 30A and 30D. To that extent it confirms the conclusions which I have already reached. Those factors do not, however, in my view, justify taking any different view to the level of production which could have been achieved in the relevant seasons in respect of areas 30A and 30D were it not for the existence of the exclusion zone. They do not, therefore, provide any basis for altering the prima facie view reached in relation to the losses of €50,000 in respect of 2003/04 and €450,000 in respect of 2005/06.
8.21 For the reasons which I have set out above I am satisfied that a just estimate (and it can be no more than a very generalised estimate) of the losses attributable to the existence of the exclusion zone up to its discontinuance in June 2006 come to a total of €500,000. To that must be added that any losses attributable to the need to remediate the mussel beds so as to allow them to come to full production. I now turn to the issue of future losses.
9. Future Losses
9.1 The parties were given an opportunity, in the light of the late development concerning the discontinuance of the exclusion zone, to reformulate their position in respect of future losses. Letts supplied the defendants with a revised claim which suggested that very substantial sums indeed were required to remediate the relevant mussel beds. Much of the scientific evidence presented on both sides in relation to that claim was hotly contested.
9.2 Before going on to deal with that evidence I think that it is worth noting the degree of difference of scientific opinion that was demonstrated in this case. It should be emphasised that there was no suggestion on either side that the experts called on behalf of the other side were doing anything other than expressing their genuine scientific view. The case does, however, emphasise the real possibility that competent experts having carefully considered the matter, may come to very widely divergent views on matters of fact and opinion. It is sometimes suggested that the courts would be better advised to move to a situation where the court appoints a single expert who could, it is said, then come up with an “objective” assessment of issues of expert view. This case, in my view, demonstrates the extreme danger of adopting such a position. The financial consequences of the different views expressed by the experts on both sides in relation to this aspect of the case ranged from a suggestion that losses into the future were negligible to one which put the sum required to compensate for such losses at a figure in excess of €5 million. If the court had appointed its own expert then who knows as to what point on that spectrum the expert would have determined on as a conclusion. To have then deprived the parties of the opportunity to put the contrary case to that which had been determined on by that expert would, certainly on the facts of this case, have had the potential to give rise to a very significant injustice indeed.
9.3 Having said that it is, of course, necessary for me to decide on the balance of probabilities as to what remediation, if any, is required.
9.4 There are two major areas of controversy. The first involves a question concerning the amount of deposition of material that has, in fact, occurred on the beds in the period since they were last actively used prior to the imposition of the exclusion zone. On Letts case a very significant volume indeed of such materials was, in fact, deposited. That is significantly contested by the defendants.
9.5 The second general set of issues concerns the extent to which the beds are now capable of being used for the commercial production of mussels without further significant remediation. The answer to that question is, of course, at least in part, dependent on the answer to the first question. I therefore turn to that first question.
10. What was deposited?
10.1 As it happens there has been a number of surveys (called “bathymetric surveys”) of the sea bed in the vicinity of beds 30A and 30D over the last number of years. Based on these surveys evidence was tendered on behalf of Letts to the effect that there had been a significant deposition of material over most of the beds in question in the period since the exclusion zone came into effect. Just before the commencement of the resumed hearing in respect of this aspect of the case, the State sought to question the validity of one of the underlying surveys. To this end further expert evidence was called as to the surveying methodology and, indeed, in a very belated way, evidence and rebuttal evidence from experts designed to assist the court in relation to the extent to which it might be expected, from the movement of waters within the harbour, that a build up of the type contended for would have occurred.
10.2 Faced with this battery of expertise the court can only do the best it can. In fact four bathymetric metric surveys were carried out. A survey by Irish Hydro Data Limited (“IHD”) was carried out in July and August 1998. A further survey was carried out by IHD in July 2006. It would appear on the evidence that both surveys were carried out with similar equipment and within the same parameters of accuracy. In addition Hydro Graphics Surveys Limited (“HSL”) carried out surveys in the year 2002 and on the 13th October, 2006. While there were some not insignificant differences between the surveys carried out in 2006 (i.e. the IHL survey of July and the HSL survey of October) the real issue between the parties concerns the differences between, on the one hand, the surveys of 1998 and 2002 and on the other hand the differences between that survey of 2002 and that of July 2006. Taking each of the surveys at face value they demonstrate erosions or depositions in cubic metres as per the following table
Survey 1 Survey 2 Erosion (m3) Deposition (m3) Net Change (m3)
IHD July 1998 HSL 2002 98,819 840 97,976 Erosion
HSL 2002 IHD July 2006 1,517 97,005 95,489 Deposition
IHD July 2006 HSL Oct 2006 32,064 5,381, 26,683 Erosion
10.3 As will be seen the suggestion, if one accepts the readings from each of the surveys as accurate, is that over most of the relevant area there was an erosion totalling just short of 100,000 cubic metres between 1998 and 2002 with a corresponding deposition of virtually the same amount between 2002 and 2006. A somewhat lower deposition might be taken if one used the October 2006 survey. These facts raised the question as to whether the 2002 survey was accurate.
10.4 I am persuaded by the evidence given on behalf of the State which seems to demonstrate that, to a quite significant extent, the readings in respect of the sea bed in the contested survey are approximately 20 cm lower in most areas than seems to have been the case in both the earlier survey and the most recent survey. While the issue is far from free of doubt, I have come to the view that, on the balance of probabilities, the most likely explanation for this fact is that the datum by reference to which the contested survey was conducted was out by approximately 20 cm and that this explains the disparity between the readings. It is the relative uniformity of the difference that most leads me to that conclusion. I am not, therefore, satisfied that there has, in fact, been a build up of materials on the mussel beds, between 2002 and 2006, of the order of magnitude suggested on behalf of Letts.
10.5 In the light of that finding it is necessary to turn to the second question. A number of different surveys were conducted on the sea bed using different methodologies. Much debate occurred between the experts as to the relative merits of the different methodologies adopted. However it seems to me that the preponderance of the findings of the experts do not differ all that significantly. The site of the exclusion zone can conveniently be divided, for this purpose, into three sectors. The first sector, i.e. that nearest the bridge, can, it is common case, be immediately used for whatever level of mussel production it is capable of bearing. There is a second area at the opposite end of the exclusion zone which, it is again common case, is not currently capable of being used for mussel production. The dispute between the experts concerns the extent to which the middle area is capable of immediate use or whether, and if to what extent, it requires remediation. While there is some difference between the experts as to the size of the two respective side areas, I am satisfied that they are both of the order of approximately 15% of the total.
10.6 I should deal, first, with the area which, it is agreed, is not currently capable of use. It is by no means clear to me that this area was ever of any very significant level of productive capability. The evidence from the experts called to deal with water movement within Wexford Harbour makes it clear that it is more likely that material will be deposited as water flows decrease. The water coming down river into Wexford Harbour is channelled initially between the two banks of the river and, thereafter, between what are described are training walls which are specifically designed to help the flow of water and thus prevent the silting of the harbour at that point. However the portion of the exclusion zone which is furthest away from the mouth of the river is the one where the water flow will have spread to the greatest extent and thus where deposition is now and at all material times was more likely to have occurred. While there is no doubt but that, as a fact, this area is not capable of mussel production without some degree of remediation I am not satisfied that it is significantly worse than it was likely to have been in the absence of an exclusion zone.
10.7 While there was no real evidence as to whether there was a variation in the productive capacity of various parts of areas 30A and 30D, prior to the imposition of the exclusion zone, all of the evidence supports the fact that the way in which mussels grow is in a cluster form so that rather than having an absolute uniformity of the distribution of mussels across a mussel bed (such as might be experienced on land with the growing of a crop on a reasonably uniform piece of land) mussels are likely to be found in clusters. It is entirely possible that those clusters might well be more likely to be located in those parts of the mussel beds where the conditions suitable for their development were best. Thus while there is no doubt but that the evidence establishes that mussel beds 30A and 30D, taken as a whole, were among the best in Wexford Harbour, it does not follow that each and every portion of those beds were of the same quality. Indeed the very fact that it has now been established that the beds appear to be capable of a much higher level of production than had been established in the past seems to me to be consistent with the fact that parts of the beds were being under used in any event.
10.8 For those reasons it seems to me to be appropriate to largely disregard the portion of the mussel bed furthest away from the bridge. It will, however, be appropriate to make some minor allowance for the possibility that that part of the bed was capable of some production prior to the imposition of the exclusion zone which has been impaired by reason of the deposition of extra material during the continuance of the exclusion zone.
10.9 The real issue which remains concerns the central portion. For all of the detailed scientific survey evidence the real question under this heading comes down to a contest of subjective expert opinion as to whether, having regard to the condition of that zone as demonstrated in the various surveys, it is or is not capable of commercial mussel production without remediation. Dr. Tony Meaney on behalf of Letts says that it is not. Dr. Ronnie Russell on behalf of the defendants says that it is. Both have significant expertise in the matter. Having carefully considered all of their evidence I have come to the view that the mussels beds within the contested central part of the former exclusion zone are potentially capable of a relatively early return to commercial mussel harvesting without the necessity of engaging in the elaborate dredging and laying of shale stated to be necessary by Letts. However I am of the view that, as Dr. Russell said, it would be necessary to proceed with some caution. In the light of the legitimate areas of expert disagreement it would be very brave indeed on the part of Letts to go ahead with an immediate laying of the maximum level of mussel seed that the beds might be regarded as being capable of taking. This would run the risk that, if Dr. Meaney’s view is correct, a significant portion of those mussels could be lost with significant consequential damage to Letts.
10.10 In those circumstances it seems to me that a better way of approaching the losses of Letts into the future is to assume that for two further growing seasons Letts possibility of production from the former exclusion zone will be reduced by reason of the need to exercise caution in the build up of mussel production.
10.11 For the reasons which I have outlined in an earlier portion of this judgment I have come to the view that the losses attributable to the harvesting year 2005/6 ought to be estimated as being of the order of €450,000. It should be recalled that that figure was, in itself, based on a notional level of additional production which was below (by about half) that which would appear to be the maximum possible capabilities of the mussel beds. In those circumstances it seems to me that it would be reasonable to assume that larger losses (of the order of perhaps €700,000 per annum allowing for external limitations such as the availability of mussel seed) would have been attributable to future harvesting years were it not for the discontinuance of the exclusion zone. However now that the exclusion zone has been removed it seems to me to be reasonable to estimate that having regard to a cautious approach to the
re-introduction of commercial mussel growing to the former exclusion zone, coupled with the possibly that it may transpire that some level of remediation work will be required, that losses of the order of €425,000 and €225,000 will derive from the next two mussel harvesting seasons respectively but that, after that, it will be possible for Letts to produce as much mussels from beds 30A and 30D as they would have been able to had there been no exclusion zone.
10.12 Those estimates are based on the assumption that the additional profits which can, everything else being equal, be derived from the extra production now capable of being generated from the former exclusion zone is of the order €700,000. Approximately 15% of that extra production is undoubtedly immediately available without any caution being exercised. This equates to the removal of a loss of profit of approximately €105,000. The balance is, therefore, just short of €600,000. The estimates are based on the assumption that only one third of any extra production could reasonably be expected to occur in the first harvesting season while two thirds of that extra production might reasonably be expected to occur in the second harvesting season. An addition is made to reflect the possibility that further costs may be incurred and to reflect the risks involved.
10.13 Obviously Letts may well be able to accelerate the level of additional production by means of the investment of moneys in remediation. However the extent to which it would be prudent to invest those moneys is a matter of commercial judgment. Having regard to the fact that Letts estimated that a total sum of in excess of €5 million needs now to be invested to bring the beds back to full production I would, in any event, have come to the view that it would not be appropriate to assess damages on that basis even if I had being satisfied that remediation to that cost was required. For the reasons which I have analysed above I am not satisfied that losses into the future have been established which would put the extent of those losses beyond a sum of €600,000 per annum.
10.14 It will be recalled that Letts originally estimated their losses into the future on the basis of calculating losses for five harvesting seasons in total. Those losses were, therefore, calculated on the basis of three future harvesting seasons lost. Before the case concluded I was informed that Letts have now received a new ten year aquaculture licence in respect of beds 30A and 30D. Even allowing for a calculation on the basis of the five harvesting seasons that would occur within the period of that licence, it would seem that the appropriate calculation of the losses attributable to not being allowed to use the area of the exclusion zone at all could not exceed €3.0 million which sum should, in the reality, be discounted to reflect the fact that most of the sums would not be paid for some time. In those circumstances it is difficult to see how remedial works of the type suggested by Letts would amount to the proper approach to the calculation of damages in any event.
10.15 For those reasons it seems to me that the approach which I have indicated above is a more appropriate basis for the calculation of damages. It should also be noted that the level of deterioration of the beds concerned is, in substance, only due to a failure to disturb any accumulated silting during the two harvesting seasons during which the exclusion zone was in place. It is difficult to see how the gradual approach suggested by Dr. Russell to the reestablishment of the mussel beds within the former exclusion zone would not be a more appropriate approach in those circumstances rather than the radical relaying of the beds which is implicit in the Lett approach.
10.16 I am also satisfied that the approach which I have adopted does reflect, properly, the possibility that, in practice, some remediation may be necessary. If it should transpire that remediation could legitimately give rise to an accelerated return to full production relative to that which underlays the assumptions which I have made, then same would only be the case if the investment in remediation justified the returns. If it did justify the returns then it would have the effect of reducing rather than increasing the losses attributable to the future. If the investment would not justify the returns then it is difficult to see how it would form an appropriate basis for the calculation of loss in the first place.
10.17 It, therefore, seems to me to be appropriate to calculate the losses into the future in a total sum of €650,000.
11. Conclusions
11.1 In summary therefore I am satisfied that Letts have incurred losses attributable to the existence of the exclusion zone in the sum of €500,000 up to the time of the discontinuance of the exclusion zone and a further sum of €650,000 attributable to losses which will be incurred during the period when the beds contained within the former exclusion zone are being brought back to a level of production which would otherwise have pertained had the exclusion zone not been imposed in the first place.
11.2 I am, therefore, satisfied that the losses attributable to the existence of the exclusion zone total the sum of €1,150,000.00. For the reasons set out earlier in the course of this judgment I am satisfied that Letts have demonstrated that they have a legitimate expectation to be compensated in respect of those losses and that Letts are, therefore, entitled to a declaration that they are entitled, as against the Minister, to compensation for proven losses in respect of the imposition of the exclusion zone in that sum.
Donal O’Donnell and Catherine O’Donnell v Corporation of Dun Laoghaire
Ultra Vires
High Court
5 September 1990
[1991] I.L.R.M. 301
(Costello J)
COSTELLO J
delivered his first judgment on 17 July 1990 saying: Mr O’Donnell, the first named plaintiff, is a retired civil servant. He lives with his wife, the second named plaintiff, and their two daughters in their home at Blackrock which is in the administrative area of the Dun Laoghaire Corporation, the defendant herein. Their action concerns, firstly, Mr O’Donnell’s liability to pay water charges imposed on him by the corporation in respect of the years 1983, 1984, 1985, and 1988 and, secondly, their claim for damages arising from what is claimed to have been a wrongful disconnection of the supply of water to their home in November 1988. I decided I would determine as a preliminary point of law the validity of the county manager’s orders made in the years 1983, 1984 and 1985 and the resolution of the corporation’s elected members which imposed water charges for the year 1988 as the plaintiffs’ claims would fail if these orders and the resolution were valid.
The issues now to be considered are net ones. A power to raise water charges was conferred on the corporation (and other local authorities) by Act of the *304 Oireachtas enacted in 1962, a power subsequently amended by a further statute enacted in 1983 (see s. 7 of the Local Government (Sanitary Services) Act 1962 and s. 8 of the Local Government (Sanitary Services) Act 1983 which inserted and then amended a new section, s. 65A, in the Public Health (Ireland) Act 1878). The section, as amended, did not come into operation until 12 July 1983, when the amending 1983 Act came into force — a significant and important fact to which I will refer in a moment.
S. 65A (as amended), provided that a ‘sanitary authority’ may make charges for water supplied by it. The Corporation of Dun Laoghaire is the ‘sanitary authority’ for the area in which the plaintiffs reside and its s. 65A powers were exercised by orders of the county manager in the years 1983, 1984 and 1985, no water charges being raised for the years 1986 and 1987. But by ministerial order (SI No. 341 of 1985) entitled ‘County Management (Reserved Functions) Order 1985’ which came into operation on 1 January 1986 the power to make charges for services in respect of domestic premises became exercisable by the elected members of the Dun Laoghaire Corporation.
The important part of s. 65A for the purposes of this case is subs. (7) which reads as follows:
A charge under this section for water supplied otherwise than by measure shall be payable in advance by equal half-yearly instalments on 1 April and 1 October or by such other instalments as the sanitary authority to whom the charge is payable shall determine , and, in default of being paid within two months after becoming payable shall be recoverable as a simple contract debt in any court of competent jurisdiction (emphasis added).
The effect of this subsection is perfectly clear; when a charge is made under the section by a sanitary authority it becomes payable in advance by half yearly instalments on the dates specified, but the sanitary authority may determine that the charge it has raised be paid by instalments other than those specified in subs. (7).
The Supreme Court considered subs. (7) in Dublin Corporation v Ashley [1986] IR 781. The Dublin City Manager had made two orders imposing water charges, one for the year 1983 and one for the year 1984. The charges for the year 1983 were made by an order of 25 October 1983. The order fixed a water charge for the period to 31 December of that year and specified that the charge was payable ‘on demand’. The Chief Justice (expressing the unanimous opinion of the court) pointed out that subs. (7) did not permit the fixing of a charge payable in one single amount and because this was the effect of the order of 25 October 1983 it was outside the powers of the sanitary authority to make it. The 1984 order was made on 25 May of that year. By that order a water charge was fixed for the period to 31 December 1984. Instead of providing that the charge *305 was to be payable ‘on demand’ the order provided that the charge was ‘payable either in full or in two equal instalments, the first payable not later than 1 August and the second not later than 1 October’. The court held that this, too, was invalid ‘either on the basis that it is truly to be interpreted as being an order for the payment in one sum only, or on the basis that it is uncertain and ambiguous and fails clearly to comply with the limits of the statutory power of Dublin Corporation as a sanitary authority’ (p. 787).
I was also referred to an order of the High Court of 2 February 1988 made in an appeal by way of case stated in Kilkenny County Council v Brennan (High Court 1987, No. 638 SS, 2 February 1988). In that case the plaintiff council had sued the defendant in the District Court for water and sewage charges. Its claim had been dismissed but on appeal the High Court decided that the district justice had erred in doing so. Unfortunately the judgment of the High Court is not available. However, it is of interest to note that the county manager’s orders on which the proceedings had been based, having set out the rate at which water charges were to be paid, went on to provide that they were to be collected ‘in instalments as appropriate’. It appears from paragraph 5 of the case stated that the district justice was of the opinion (erroneously, as the High Court found) that the county council had failed to determine the instalments required by subs. (7) and that this was the reason why he had dismissed the claim.
I come now to consider the three orders of the county manager which are impugned in these proceedings.
(1) Order of 14 September 1983
It will be recalled that the amending Act of 1983 did not come into operation until 12 July of that year and presumably this is the reason why water charges were not raised prior to 14 September. The county manager’s order of that day began by reciting s. 65A to which I have already referred and then went on to order that:
The following charges in respect of the supply of water to domestic dwellings are to be made for the period ending 31 December 1983.
and to provide a sliding scale of charges based on rateable valuation. The charge in respect of dwellings with a valuation over £35 (which is the charge applicable in this case) was fixed at £70.
It will be noted:
(a) that unlike the 1983 Dublin Corporation order in the Ashley case this order does not provide that the charges are to be paid ‘on demand’ and
(b) it does not specify that the charges are to be paid by instalments or the dates on which the charges are to be paid.
After the order was made a demand was issued by the defendant corporation *306 claiming payment for the whole sum of £75 and making no reference to its payment by instalments.
It was argued on the plaintiffs’ behalf that I should construe this order as fixing a charge payable in one single amount and that I should condemn it on the authority of the Ashley case. It was submitted on the defendant’s behalf that the order (unlike the order in Ashley’s case) makes no reference to the way the charges are to be paid — it merely sets out the amount to be paid. It was urged that the method of payment is to to be found in the statute, namely in s. 65A(7), and that as I was concerned with the legality of the order of 14 September the demand note (which apparently required payment of the full sum) could be ignored. I agree with this submission. The order in this case did not specify that the charge was to be paid on demand and I cannot construe it as so providing. The order provided that a sum was to be paid; the method of payment is to be found in the statute. But this does not save the order because of the very provisions of the statute on which the defendant relies in suggesting that I should ignore the lump sum claimed in the 1983 demand note. S. 65A(7) has the effect of providing that payment of charges fixed by a manager’s order are to be paid on the two dates specified in the subsection (that is 1 April and 1 October) unless other dates have been fixed by him. Once the order of 14 September 1983 failed to provide that the charges it fixed were to be paid by instalments they then became payable on the statutory dates. But this was a legal impossibility as the first statutory date had passed. In my opinion the statute did not empower the county manager to make an order which resulted in an obligation to pay charges in a manner which could not legally be performed and so I think, by failing to specify the dates on which instalment payments were to be made the order of 14 September 1983 was ultra vires.
(2) Order of 10 July 1984
The county manager made an order on 10 July 1984 in respect of water charges for the year ending 31 December 1984 and fixed the same rate of charge which, in the plaintiffs’ case, again amounted to £70 for the year. The order was in the same terms as those contained in the 1983 order — that is, it did not provide that the charges were to be paid on demand and failed to specify the instalments in which the charges were to be paid. As the order was made after 1 April it suffers from the same infirmity as that which invalidated the 1983 order. There was the usual demand note issued in respect of these charges but this differed in a significant way to that issued in 1983. Its date of issue was given as 18 June 1984 (that is before the county manager in fact made his order). It required Mr O’Donnell to pay £70 arrears and £70 current charges. It stated that the current charge ‘may be paid in two equal instalments, the first forthwith and the second by 31 August 1984’. But this demand note, in my opinion, could not have cured the defect in the manager’s order (and indeed so to argue would be contrary to *307 the submissions advanced in support of the 1983 order) because subs. (7) requires the ‘sanitary authority’ to determine the instalments in which charges are to be paid if those provided by the statute are not to operate. This provision can only be complied with by an order of the county manager and not by an administrative decision taken by an official of the council before, or, indeed after the county manager’s order had been made. The defective order was not, therefore, cured by the demand note.
(3) Order of 17 June 1985
Water charges were again raised by the county manager in 1985 by an order made on 17 June. This is invalid for the same reasons which applied to the earlier two orders. The final demand note made on Mr O’Donnell contains no reference to payment of the 1985 charges by instalments and I have not seen the first demand note. But even assuming that the first demand made provision for the payment of charges by instalments such a provision would not have saved the manager’s order for the reasons which I have given in relation to the 1984 order.
As pointed out already no water charges were raised in 1986 and 1987 and that from 1 January 1986 the power to raise charges became a reserved function exercisable by the elected members of the Dun Laoghaire Corporation. By a resolution adopted on 7 December 1987 the elected members exercised their powers under this section and fixed water charges for the year 1988. Their resolution, after reciting s. 65A went on:
We hereby determine that the charges for water supplied for domestic purposes for the period ending 31 December 1988 shall be fixed by reference to the rateable valuation of the premises supplied in accordance with schedule I hereunder and shall be payable in two equal instalments namely on 15 March 1988 and 15 July 1988 ….
The schedule provided that dwellings with a valuation of £30 and over would be liable to pay £125 so that if this resolution was valid Mr O’Donnell was required to pay water charges by instalments on 15 March and 15 July 1988.
In my view this resolution was a valid exercise by the elected members of the powers conferred on them by s. 65A. Unlike the previous managerial orders the resolution made a determination of the instalments in which the charges were to be paid and so complied with subs. (7). It has been argued on behalf of the plaintiffs that only four months separated the dates on which instalments were to be paid and that this determination was ultra vires because, it was claimed, the section only authorized the determination of instalments which would not impose a greater burden on the houseowner than the burden imposed by six monthly instalments as set out in the subsection. I cannot agree that the subsection should be so construed. It seems to me that the subsection gives to *308 the sanitary authority a discretion as to how instalments are to be determined and that it was well within the statutory powers of the corporation to fix the instalments specified in its December 1987 resolution.
I should add that it had originally been urged on the plaintiffs’ behalf that the resolution was invalid because, it was suggested, it permitted the proceeds of the water charge to be dispersed for purposes other than water services. But the evidence shows that the revenue from the water charges was in fact lower than the cost of the water services provided and this point was not pursued.
It follows from the conclusions I have just announced that Mr O’Donnell is not liable to pay the water charges for the years 1983, 1984, and 1985, amounting in all to a sum of £210 but that he is liable to pay the water charges for the year 1988, namely the sum of £125.
S. 65A(9) empowered the corporation to disconnect the plaintiffs’ water supply. The corporation exercised this power in 1988 and since November of that year the plaintiffs’ home has been without water. In the light of the conclusions I have just announced it becomes necessary to consider the validity of the defendant’s actions and I will hear any evidence the parties wish to adduce on this point and counsel’s submissions on it. As I think it is desirable that all issues should be determined in these proceedings I will allow, as requested, the defendant to amend its defence so as to plead that the plaintiffs’ delay constitutes a bar to the relief claimed and I will allow both parties to adduce evidence on this point as they think fit. I will also hear evidence on the plaintiffs’ claim for damages and I will then be in a position finally to determine all the issues in the case.
COSTELLO J
delivered his second judgment on 5 September 1990 saying: Having concluded, for the reasons given in my judgment of 17 July 1990, that the managerial orders which fixed water charges in 1983, 1984 and 1985 were ultra vires but that the resolution of the elected members fixing charges for the year 1988 was valid, I resumed the hearing of this case and heard evidence on the remaining issues. These were:
(i) Whether the corporation’s 1988 decisions to disconnect the plaintiffs’ water supply were ultra vires;
(ii) Whether the plaintiff, Mr O’Donnell, was barred from claiming declaratory relief;
(iii) Whether the plaintiffs, or either of them, are entitled to damages.
(i) The decisions to disconnect
The corporation’s decision to introduce water charges in 1983 met with widespread, determined and organised opposition — opposition which in numerous cases took the form of a refusal to pay them. The Dun Laoghaire Corporation, *309 like other local authorities similarly placed, had no alternative but to institute legal proceedings and in the following years many hundreds of civil processes were issued against recalcitrant householders. For a number of reasons proceedings by means of District Court action proved a slow and cumbersome process and the corporation was faced not only with a fall in its revenue but also with the grievance of those householders who having paid water charges watched others escape liability, apparently with impunity. As a result when water charges were once again imposed in 1988 it decided to activate the power conferred by s. 65A of the Public Health (Ireland) Act 1878 (inserted by s. 7 of the Local Government (Sanitary Services) Act 1962) which provided by subs. (9) that a water authority could disconnect a supply of water ‘in respect of which a charge under this section remains unpaid after the expiration of two months after the charge has become payable’ and further authorised the authority to impose fees to cover the cost of disconnection and subsequent re-connection.
On 15 June 1988 the corporation wrote to the plaintiff, Mr O’Donnell, a letter headed ‘Notice re disconnection of water supply’. This letter referred to the arrears of charges which it was claimed were owed by Mr O’Donnell, namely those payable in 1983, 1984, and 1985 amounting to £210 and the first instalment for the year 1988 amounting to £62.50, and went on:
Until recently this corporation has concentrated on legal proceedings to obtain payment of arrears outstanding. However, in the last few months a number of householders have been proceeded against by disconnecting their water supply. It is now proposed to step up substantially the disconnection of supply. Accordingly, the corporation hereby gives you notice that if the amount outstanding is not paid within the next seven days your water supply will be disconnected without further notice.
It concluded by warning the plaintiff that disconnection and further re-connections would involve him in further substantial costs.
I draw attention to the following matters:
(a) The decision to operate its s. 65A powers was taken by the corporation for the purpose of enforcing payment of the sums it believed to be due for water rates. It was taken bona fide by the corporation for the purpose of securing compliance with the law.
(b) In the case of Mr O’Donnell the June decision to disconnect his water supply was taken to enforce payment of the sum of £272.50 which it was claimed he then owed. In fact, because the 1983, 1984 and 1985 orders were invalid Mr O’Donnell did not owe the sum of £210 in respect of the charges for those years. Because the 1988 charges were valid and the first instalment had fallen due on 15 March there was at that time only a sum of £62.50 due by him to the corporation.
*310
The corporation disconnected the plaintiff’s water supply and wrote to him on 12 July to tell him they had done so and required payment of £60 re-connection fee along with payment of the arrears. With the knowledge and consent of Mr O’Donnell persons who have not been named illegally re-connected his supply. The corporation disconnected it again on 3 August but once again it was illegally re-connected.
On 15 July the second instalment of the 1988 charges became payable. On 10 October the corporation wrote again to Mr O’Donnell. It claimed arrears amounting to £335 (that is the 1983, 1984 and 1985 charges and the whole of the 1988 charges) and warned again that unless payment was made his water supply would be cut off. This warning went unheeded and the water was cut off at the beginning of November. On 3 November a claim was made for the arrears (£335) and disconnection and re-connection fees of £430. Again Mr O’Donnell took the law into his own hands and with his consent some persons without the corporation’s authority re-connected the supply. On 9 November it was once again disconnected by the corporation, this time using methods which effectively prevented unauthorised re-connection.
I draw attention to the following matters:
(a) The October decision to disconnect was taken to enforce payment of the sum of £335. In fact the only amount properly owing at that time was £125 (the 1988 charges).
(b) When disconnection took place in November 1988, the 1988 charges were in arrears for more than two months.
(c) Since November 1988 the corporation has claimed payment of £430 disconnection and re-connection fees by virtue of s. 65A. But if the June decision to disconnect was invalid and if the October decision to disconnect was invalid then this claim is not sustainable because the fees are then claimed for work performed under an unauthorised decision.
It was a pre-condition of the exercise by the corporation of its s. 65A powers of disconnection that water charges were in arrears for two months when the power was exercised. If no charges were in arrears at the time of disconnections then the corporation would have lacked statutory authority for its decision to disconnect and it and the actions taken subsequently to implement it would have been ultra vires. In fact, when the June decision was taken the first instalment of the 1988 charges was two months in arrears and when the October decision was taken all the 1988 charges were two months in arrears. But it does not follow that these decisions were intra vires because it is open to the plaintiffs to claim, as they have done, that although the statutory power to decide to disconnect may have existed in June and again in October 1988 the exercise of that power was invalid because it was exercised ultra vires. I think this submission is correct. The power to disconnect was a discretionary one to be exercised in accordance with the statute and even though the statutory pre-condition to its exercise is *311 shown to have existed it is still possible that its discretionary powers were exercised in an ultra vires manner. And I think that is what happened both in June and October 1988. The corporation was fully entitled to operate s. 65A for the purpose of enforcing payment of water charges which were lawfully due, but, both in June and October, it decided to exercise the power to enforce payment of sums which were not lawfully due (namely, the 1983, 1984 and 1985 charges). As I think the section did not empower the corporation to utilise the section for such a purpose it follows that these two decisions were ultra vires.
It also follows from these conclusions, and from those which were contained in my judgment of 17 July last, that unless some legal bar exists (a subject to be considered in a moment) then Mr O’Donnell is entitled to a declaration (a) that the 1983, 1984, and 1985 managerial orders were ultra vires and invalid, (b) that the June and October 1988 decisions to disconnect were ultra vires and invalid, (c) that he is not indebted to the corporation for the sum of £210 (being the 1983, 1984 and 1985 charges), and (d) that he is not indebted to the corporation in the sum of £410, being the disconnection and re-connection fees.
(ii) Bars to relief
The main relief claimed by Mr O’Donnell is declaratory relief by which the court is asked to make the declarations on the matters to which I have just referred. A declaratory judgment is one which declares the rights of the parties and because defendants, and in particular public bodies, respect and obey such judgments they have the same legal consequences as if the court were to make orders quashing the impugned orders and decisions. The Chancery (Ireland) Act 1867 conferred, by s. 155, jurisdiction on the courts to make declaratory orders by providing that no action would be open to the objection that a merely declaratory decree or order was sought and rules of court have since been made with similar provision. The 1905 rules provided (by O. XXV, r. 5) that no objection could be taken to a claim merely because declaratory relief was claimed by a plaintiff and an identical provision is to be found in the current rules (O. 19, r. 29). But a declaratory judgment is a discretionary remedy and the defendants have advanced four separate grounds as to why I should refuse the relief claimed.
Firstly, it is urged that the plaintiff could have obtained relief by way of orders of certiorari and his failure to apply for this relief disentitles him to a declaratory judgment. In support of this submission reliance is placed on the judgment of Gavan Duffy J in O’Doherty v Attorney General [1941] IR 569. That was a case in which the plaintiff claimed entitlement to a military service pension under the provisions of the Military Service Pensions Act 1934. His application to the minister was referred to a referee who by notice informed the plaintiff that he was not a person to whom the Act applied, but that additional evidence could be submitted to him. The plaintiff instituted proceedings claiming a declaration *312 that he was a person to whom the Act applied. The court held that although it had jurisdiction to make the declaration claimed in the exercise of its discretion it would decline to do so being of the opinion that an order of mandamus was the more convenient, beneficial and effectual remedy for the misconstruction of his statutory duty by the referee, pointing out that it was not the practice to make a declaration where there was an appropriate remedy to which the plaintiff ought to have resorted, and that the courts have shown a strong reluctance to depart from this rule, unless, for example there was doubt as to the availibility of the alternative remedy (p. 583).
But judicial attitudes have changed since 1941. By 1965 the Supreme Court had made it clear (Transport Salaried Staffs’ Association v CIE [1965] IR 180) that there was no requirement that an applicant should establish an inability to obtain a state-side order before the court would grant declaratory relief, holding that a declaratory order would be made if there were good reasons for making it. The use of declaratory orders has become widespread both in this country and in England as a public law remedy and such orders are made even in cases where the court had jurisdiction to make orders of certiorari quashing impugned administrative decisions (Pyx Granite Co. Ltd v Minister of Housing and Local Government [1960] AC 200). Mr O’Donnell’s failure to apply for such orders is not in itself a ground for refusing him the declaratory orders he now seeks.
The second argument advanced is that since the adoption of the 1986 Rules of Court it is now an abuse of process to claim declaratory relief in a plenary action when relief in an application for judicial review is available and so the relief claimed should be refused.
The 1986 procedural reforms followed closely those adopted in England. The English Law Commission considered the question of public law remedies and recommended the enactment of legislation to introduce a new remedy and new procedures for applications for what was called ‘judicial review’ of administrative acts and decisions. Initially rules of court were adopted in 1977 and then amended in 1980 to give effect to these recommendations. Later, by the Supreme Court Act 1981 they were enacted in legislative form. The Irish Law Reform Commission made proposals for reform on lines similar to those proposed by the Law Commission in England and it too recommended that its proposals be enacted by legislation. This has not been done. Instead they have been incorporated in the new 1986 rules, O. 84 of which following closely O. 53 of the English rules as amended in 1980.
The defendants have relied on a recent decision of the House of Lords in O’Reilly v Mackman [1983] 2 AC 237 in support of their submission. That was a case in which four plaintiffs, prisoners in Hull prison, were charged with disciplinary offences before the Board of Visitors. Three proceeded by writs issued in July 1980 in respect of adjudications made by the visitors at the end of 1976, the fourth by originating summons issued in September 1980 in respect *313 of an adjudication made in May 1979. They all alleged that they were not given the opportunity to call witnesses in their defence and that the Board of Visitors had acted in breach of natural justice and each claimed declarations that the adjudications were nullities. The defendants (the members of the board and the Home Office) moved by summons in each action for orders striking out each of the four proceedings on the ground that they were an abuse of the process of the court. The application failed in the High Court. Peter Pain J held (a) that it was not an abuse to bring the proceedings by way of writ and originating summons instead of applying under RSC O. 53 for a judicial review and (b) that it was not correct that the appropriate remedy was to apply for an order of certiorari to quash the adjudications and that it was open to the plaintiffs to apply for declaratory orders in plenary actions. The Court of Appeal held otherwise. But it is of relevance to note that there was a divergence of opinion on the issues involved. The majority (Ackner and O’Connor LJJ) held that the appropriate remedy (if any) was an order of certiorari and not a declaratory order and so the claims in the plenary actions should be dismissed, whilst Lord Denning MR allowing the appeal for a different reason, construed s. 31 of the Supreme Court Act 1981 as meaning that it would be an abuse of process where good and appropriate remedies had been given by parliament (judicial review proceedings) to use other procedures to claim relief so as to avoid the safeguards against abuse contained in the new remedies. The plaintiffs appealed. In a unanimous opinion (delivered by Lord Diplock) the House of Lords agreed with Lord Denning. It was pointed out that neither O. 53 nor s. 31 of the Supreme Court Act 1981 expressly provided that procedures by way of application for judicial review were to be exclusive remedies but nonetheless it would ‘as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of ordinary action and by this means to evade the provisions of O. 53 for the protection of such authorities’ (p. 285).
The defendants in this action did not apply to have it dismissed as an abuse of process nor indeed did they plead that it amounted to an abuse of process. What is urged is that the new 1986 rules, like the English rules, contain provisions for judicial review which incorporate safeguards in the public interest in favour of public authorities and that, for the reasons given in O’Reilly, even if the court considers that the impugned orders and decisions are ultra vires, declarations should not be made because to claim relief in a plenary action instead of by application for judicial review amounts to an abuse of process.
I am of course not bound to follow the decision of the House of Lords but judgments given by that court on rules of court or legislative provisions similar to ours rightly carry in our courts considerable weight. In that connection it is of some relevance to point out that in its journey to the House of Lords three *314 judges disagreed with the view adopted by the Master of Rolls and the House of Lords and that academic comment has not been unanimously supportive of their conclusions (see Wade , ‘Procedures and Prerogative in Public Law’(1985) 105 LQR 180) so that the point at issue is clearly one on which reasonable persons can reasonably hold divergent views.
I find myself siding with the minority view of the English judges. Firstly, as a matter of construction, I cannot construe the new rules as meaning that in matters of public law O. 84 provides an exclusive remedy in cases where an aggrieved person wishes to obtain a declaratory order and that such a person abuses the courts’ processes by applying for such an order by plenary action. Secondly, I do not think that the court is at liberty to apply policy considerations and conclude that the public interest requires that the court should construe its jurisdiction granted by the new rules in the restrictive way suggested, (a) because the jurisdiction it is exercising is one conferred by statute (the 1867 Act) and it is not for the courts to decide that as a matter of public policy litigants who ask the court to exercise this jurisdiction abuse the courts’ processes, and (b) because it is not necessary to call in aid the doctrine of public policy to avoid the mischief which would otherwise result.
I should develop this latter point a little more fully. O. 84 contains significant safeguards in favour of public authorities. Leave to bring an application for judicial review must first be obtained (r. 20 (1)); leave will not be granted unless the applicant can show sufficient interest (r. 20(4)); the application must be brought promptly and in any event within three months, subject to a power to have this time extended (r. 21(1)).
But, as Ackner LJ pointed out in O’Reilly (at p. 265) on a motion to try a preliminary issue in a plenary action the court could determine whether an application was so frivolous or vexatious or so devoid of merit that leave to issue it under O. 84 r. 20(1) would never have been granted and so stay the plenary action, or it could conclude on such a motion that the plaintiff had no standing and dismiss it as it would have done under r. 20(4) had an application for judicial review been brought.
A declaratory order is a discretionary order arising from the wording of statute which conferred jurisdiction on the courts to make such orders (see Wade, Administrative Law 5th ed., p. 523) and it is well established that a plaintiff’s delay in instituting plenary proceedings may, in the opinion of the court, disentitle the plaintiff to relief. It seems to me that in considering the effects of delay in a plenary action there are now persuasive reasons for adopting the principles enshrined in O. 84, r. 21 relating to delay in applications for judicial review, so that if the plenary action is not brought within three months from the date on which the cause of action arose the court would normally refuse relief unless it is satisfied that had the claim been brought under O. 84 time would have been extended. The rules committee considered that there were good *315 reasons why public authorities should be protected in the manner afforded by O. 84, r. 21 when claims for declaratory relief were made in applications for judicial review and I think exactly the same considerations apply when the same form of relief is sought in a plenary action. Furthermore, it is not desirable that the form of action should determine the relief to be granted and this might well be the result in a significant number of cases if one set of principles on the question of delay was applied in applications for judicial review and another in plenary actions claiming the same remedy. And in plenary actions the effect of delay can in many cases be determined on the trial of a preliminary issue and as speedily as if the issue fell to be determined in an application for judicial review.
For these reasons it seems to me that the apprehended use of plenary actions as a device to defeat the protections given by O. 84 is not a real danger and does not justify the court in concluding that proceedings by plenary action for declaratory relief against public authorities must be an abuse of process.
I must hold therefore that the plaintiff is not barred from obtaining the relief now claimed merely because he failed to challenge the impugned orders and decisions by applications for judicial review under O. 84.
The third ground relied on by the defendants is the plaintiffs’ delay. These proceedings were not instituted until 21 July 1989. The managerial orders challenged are dated 14 September 1983, 10 July 1984 and 17 June 1985. If the plaintiff’s delay disentitles him to declaratory relief then the challenges to the later adminstrative decisions to cut off the water supply will also fail. These were made in June and October 1988. But if the court can properly declare the managerial orders to have been ultra vires, the effect of delay in challenging the validity of the 1988 administrative decisions will then arise for determination.
For the reasons already given, I think I should exercise my discretionary powers in relation to the plaintiffs’ delay by applying by analogy the rules and principles contained in O. 84, r. 21. I should therefore refuse to grant the plaintiff relief unless I am satisfied that had the application been one for judicial review I would have concluded that there were good reasons for extending the time for allowing the application notwithstanding the expiration of three months’ time limit contained in the rule.
The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which *316 is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).
Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in instituting the proceedings.
I will turn now to consider the delay in challenging the managerial orders of 1983, 1984, and 1985. Originally the plaintiff failed to pay the 1983, 1984 and 1985 water charges not because he thought that they were illegally imposed but, like many other householders in the Borough of Dun Laoghaire, and elsewhere, he thought they were unfair. It was only later and after reading in the newspapers the Supreme Court decision in the Ashley case that he considered that the orders might be invalid. He then approached a public representative and through him obtained copies of the managerial orders. Mr O’Donnell was not a lawyer but by 1987 he had come to the conclusion that the managerial orders were invalid and this strengthened his resolve not to pay the charges they imposed. But he took no steps to challenge them. He was, however, a member of a residents’ association which was actively campaigning against the charges and from his membership and from the newspaper reports he was aware that proceedings had been taken by the corporation against many defaulting householders and he assumed that he too would be sued by the corporation. In fact this assumption was correct. In April 1987 proceedings against him were issued but service by registered post could not be effected (and there was, I am satisfied, no effort to evade service by Mr O’Donnell or his wife) and no further steps to effect service were taken. I am satisfied therefore that he did not undertake the burden of instituting proceedings because he believed that the legality issue could be adjudicated upon in proceedings instituted by the corporation either against him or against other householders who, he was aware, had raised the validity of the orders in other proceedings. Up to June 1988, therefore, there were good reasons why the plaintiff had failed to institute proceedings. Had he then applied for judicial review I am satisfied the court would have been justified in extending the time for doing so.
In June of 1988 the situation changed and for the worse as far as the plaintiffs were concerned. When the corporation threatened to turn off the water supply it then became obvious that the legality of the managerial orders would not be determined in proceedings instituted against the plaintiff. The plaintiffs took *317 two different actions in the new situation. When the supply was cut off they re-connected, or permitted the re-connection, of the supply. If this was the only action they had taken I do not think that they could have relied on it as a ‘good reason’ justifying the delay in instituting proceedings because the re-connection was an illegal act which the court could not condone. But in addition Mrs O’Donnell in June 1988 went to a public representative with a view to seeing if he could have the supply re-connected. This approach failed. When the supply was cut off finally and effectively in November Mr O’Donnell went to another representative and through him put settlement proposals to the corporation — he would pay the 1988 charges but not the earlier ones or the costs of disconnecting and re-connecting the supply. This offer was turned down. He then tried to have his supply re-connected by the adoption of a motion to this effect by the elected representatives, but this approach also failed, early in December 1988.
The following February one of the householders who had refused payment suceeded on an appeal to the Circuit Court in having a decree for water charges dismissed. This case got wide publicity and Mr O’Donnell hoped that this would strengthen his hand in negotiating a settlement with the help of his public representative. Some time after this he visited another public representative in Leinster House. As a result of advice he was given he then for the first time sought legal advice. His solicitor got counsel’s opinion and he then wrote on 18 July 1989 making the claim that the managerial orders were ultra vires and that the decisions to cut off the water supply may also have been invalid. Shortly afterwards these proceedings were instituted.
The evidence, then, clearly establishes that Mr O’Donnell was from June 1988 contesting his liability to pay water charges not through the courts but with the assistance of three different public representatives. Is the course of conduct a ‘good reason’ within the meaning of O. 84, r. 21 which would have justified the court in extending the time for applying for a judicial review of the orders? Assistance in answering this question is to be found in State (Furey) v Minister for Defence [1988] ILRM 89. There the applicant had been a member of the defence forces. He was discharged on 15 August 1975. He instituted proceedings four years later for an order of certiorari to quash his discharge. He was successful in the High Court and the minister appealed. One of the grounds of appeal was that the application should have been refused on the grounds of delay. This was rejected by a majority decision. The evidence of the plaintiff was to the effect that he did not realise that he could pursue his complaint through the court, that he could not afford legal advice, that over a four year period he had written many letters to the department, to local members of parliament and to successive Ministers for Defence. On these facts it was concluded that the applicant had not disentitled himself by his delay to the remedy he sought.
The facts of this case are not identical with those in Furey. But they are close *318 enough. Mr O’Donnell, like Mr Furey, tried to get redress through political pressure. When he was advised to do so, he went to a solicitor. It is true that he has not sworn that he did not get legal advice before this because he had not the means to do so but I think I am entitled to take into account the notorious fact that current levels of legal fees are perceived by most people to be very high and that this fact constitutes a powerful disincentive to legal action by persons like Mr O’Donnell who are in receipt of a public service pension and who live in a home which could be seized and sold to pay costs should his action fail. I think therefore that his efforts to settle the dispute through the intervention of public representatives establish that there is a reasonable explanation as to why between June 1988 and July 1989 he did not institute these proceedings.
No third parties have acquired rights which it would be unjust to injure by making the declaratory order the plaintiff seeks. Whilst it is true that the declaratory order may cause the defendant administrative and perhaps financial problems I do not think that they are such as to justify the court refusing the plaintiff relief to which otherwise he would be entitled. I am fortified in this view by the fact that the Supreme Court was not inhibited in declaring water charges imposed by the Dublin Corporation for the years 1983 and 1984 to be invalid (Dublin Corporation v Ashley [1986] IR 781). But if the situation was sufficiently serious remedial action by retrospective legislation is quite possible. This of course would be troublesome for the authorities involved but again this is not a factor which should deprive an injured plaintiff of the relief to which otherwise he would be entitled.
I must hold therefore that the plaintiff’s delay does not disentitle him to the declaratory orders he seeks relating to the managerial orders in 1983, 1984, and 1985.
The same factors which I have just outlined afford a reasonable explanation for the delay in challenging the administrative decisions of June and October 1988 by which the plaintiff’s water supply was cut off. For the reasons already given I think that this explanation affords a good reason why the delay should not bar him from obtaining the relief to which he is entitled.
The fourth argument is that it would be contrary to the public interest to do so because orders declaring the water charges imposed in 1983, 1984 and 1985 to be invalid would be detrimental to the good administration of the corporation’s administrative area. In support of this argument the defendants rely on Caswell v Dairy Produce Quota Tribunal [1990] 2 All ER 434, a case relating to an application by dairy farmers in Wales to fix a milk quota under the relevant dairy produce quota regulations. Two years after the tribunal’s decision (which was adverse to them) they applied for judicial review of the decision. The trial judge held that the tribunal had misconstrued the 1984 Regulations and should have increased the applicants’ quota but in the exercise of his discretion under s. 31(6) of the Supreme Court Act 1981 he refused relief. His decision was *319 upheld in the Court of Appeal and by the House of Lords.
It is important to note that this decision was based on statutory provisions which do not exist in this country. A somewhat confused situation has arisen in England arising from the discrepancy between rules of court and the statutory provisions of the 1981 Act which are referred to on pp. 437 and 438 of the report and which I need not delay in analysing. It will be sufficient if I refer to s. 31(6) of the 1981 Act which provides that:
Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant — (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.
Applying these statutory provisions the House of Lords concluded (a) that there had been ‘undue’ delay and (b) that it should refuse the plaintiff relief because it would be detrimental to good administration for relief to be granted.
We have nothing equivalent to this section. As already indicated, in the exercise of its discretion where a plaintiff has delayed in challenging an administrative act the court may take into account the prejudice thereby suffered to a defendant public authority. But that is a different point and one I have already considered. There is, in my view, no principle of administrative law which, apart from questions of delay, would justify me in refusing relief in the public interest because of the administrative problems which a declaratory order would produce. This ground of defence, therefore, also fails.
I conclude therefore that there are no bars to the declaratory relief to which the plaintiff is entitled. Accordingly, I will:
(a) make an order declaring that the orders of the county manager of 14 September 1983, 10 July 1984 and 17 June 1985 fixing charges in respect of the supply of water to dwellings were ultra vires and invalid and that Mr O’Donnell is not liable to pay the charges imposed on him pursuant to those orders for the years 1983, 1984 and 1985, namely, £210.
(b) make an order declaring that the decisions of the Dun Laoghaire Corporation to disconnect the plaintiffs’ water supply taken in June 1988 and November 1988 were ultra vires and invalid and that Mr O’Donnell is not liable to pay the charges claimed by the defendants (namely £430) for disconnection and re-connection.
(iii) Damages
The last point in the case is whether in addition to the declaratory relief to which Mr O’Donnell is entitled he and Mrs O’Donnell are entitled to an award of *320 damages. As already noted the water supply to the plaintiffs’ home was cut off in June 1988 but it was shortly afterwards re-connected and damages are only claimed from November 1988, when the supply was effectively terminated. In July of this year the supply was re-connected.
There is no doubt that both the plaintiffs suffered considerable inconvenience and indeed hardship arising from the defendants’ ultra vires decisions but that is not sufficient to ground an award of damages; the plaintiffs have to establish a legal basis for their claim that they are entitled to be compensated for what they have suffered.
This they cannot do. Their claim is not for damages for breach of statutory duty, or breach of a common law duty of care which the defendants might have owed to them; their claim is for damages arising from the ultra vires decision taken in October 1988 and the actions taken pursuant to it. The principles on which damages will be awarded in such circumstances have been summarised by Wade, Administrative Law 5th ed. p. 673, a summary approved of by the Supreme Court in Pine Valley Developments Ltd v Minister for the Environment [1987] ILRM 747, as follows. An administrative action which is ultra vires but which is not actionable merely as a breach of duty will found an action for damages:
(1) If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence,
(2) If it is actuated by malice, eg personal spite or a desire to injure for improper motives,
(3) If the authority making the administrative act knows that it does not possess the powers which it purports to exercise.
In this case the Dun Laoghaire Corporation committed no tort when it cut off the water supply to the plaintiffs’ home; it was not actuated by malice towards the plaintiff but was carrying out its difficult responsibilities in an impartial and unbiased manner, satisfied that it possessed the statutory power to cut off defaulting householders, like the plaintiff, who failed to pay the charges which it believed had been validly imposed. The corporation is not liable therefore to pay damages to either of the plaintiffs.
Emerald Meats Ireland -v- Minister for Agriculture & Ors
Reputational Damage
[2007] IEHC 331 (08 October 2007)
Judgment by: Feeney J.
Status of Judgment: Approved
JUDGMENT of Mr. Justice Feeney delivered on the 8th day of October, 2007.
The Plaintiff in this case is Emerald Meats Limited. It is a company which was incorporated in Ireland in 1983. The company was established, operated and at all times controlled by a Mr. John McCarthy. It operated in the meat business and prior to its incorporation Mr. McCarthy had developed an expertise and knowledge of that business.
As a young man in 1975, John McCarthy became involved in the meat business. He obtained a job with a meat trading company known as Sanger Dublin Limited. That company was a wholly owned subsidiary of an international meat trading company known as JE Sanger Limited which had offices in Europe, America and Australia. In the period from 1975 to 1980 Mr. McCarthy worked as a meat trader. The parent company JE Sanger Limited got into financial difficulties in 1980 and went into liquidation. The Irish company was a solvent entity and its assets were bought out by Eamon Waldron and his company Waldron Meats Limited. Mr. McCarthy worked for Waldron Meats Limited from 1980 to 1983 and became a share holder in that company.
During the period from 1975 to 1983 Mr. McCarthy developed a considerable knowledge of meat trading. By 1983, Mr. McCarthy, in his own words, had determined “to become self employed”. He set up his own company Emerald Meats Limited which was incorporated in 1983. The incentive for Mr. McCarthy to set up his own business was not only the fact that he had developed expertise and a good reputation but that by 1983, he was making “very substantial profits for the company I used to work for”.
In establishing his own company Mr. McCarthy recognised that experience and reputation were important but that credit worthiness was critical. The meat trading business involved participation in a highly competitive market with small margins and was a business where contracts were often obtained as a result of personal contacts. Against that background a reputation for prompt payment was “imperative”. As Mr. McCarthy stated in his evidence it was a business in which you did not survive “If you don’t pay”. “There is no room for mistakes.” In the years from 1983 to 1990, Emerald Meats became established as a trading company and Mr. McCarthy’s reputation grew. Emerald Meats prospered and as turnover increased it’s reputation for meeting its financial responsibilities became established and the credit facilities available to the company increased. Initially the credit facility of the company was £20,000 and by 1986 that had increased to a sum of £50,000. Allied Irish Banks further increased the credit limit from £50,000 to £130,000 in 1987 and by 1989 the credit limit had expanded to £200,000.
Access to credit was not only a vital ingredient of a meat trading business but also the extent of the credit available to a company impacted on its capacity to trade. Indeed Mr. McCarthy was of the personal view that he could always have done more business if the funding available to him had permitted him to do so.
One of the complicating factors in the issues of this case, to which I will return to later in this judgment, is that notwithstanding the importance of the availability of credit and the size of the credit limit Mr. McCarthy determined as early as 1985, to diversify part of company’s available funds into property. The initial diversity into property arose in circumstances where Emerald Meats Limited was renting office space in Fitzwilliam Square for a sum of £45,000 per annum and a property became available to purchase at No. 8 Herbert Street in Dublin for the sum of £68,000. That property was bought. It was envisaged that the purchase of that property would enable the offices of Emerald Meats Limited to transfer to Herbert Street with the saving of rent resulting in a benefit to the cash flow position of the company within the short to medium term.
The diversification into property continued in 1987, when Mr. McCarthy used some of the funds and credit which were available to purchase No. 18 Lansdowne Road. A separate property company called Emerald Properties Ireland Limited was established. Further purchases of No.’s 20 and 22 Lansdowne Road/Park were made in 1989.
In 1987, a significant development in relation to the meat business took place when a company was established in London. That company was Emerald Meats London Limited (Emerald London) and it was set up by Mr. McCarthy in conjunction with a friend and former meat trading colleague by the name of Des Marshall. The London company was effectively a joint venture between Mr. Marshall and Mr. McCarthy and it commenced trading in October, 1987.
The Irish company, Emerald Meats Limited, the Plaintiff herein, continued to trade in meat throughout the period from 1983 to 1990. However in the later of those years Emerald Meats Limited increasingly directed its trading activities towards GATT Trading. The nature and concept of GATT Trading is dealt with in the earlier High Court judgment of Costello J. and the Supreme Court judgment of Blayney J. within these proceedings and it is unnecessary to repeat the details therein contained. GATT Trading was part of a European Community regime which was in place during the late 1980’s and which was radically altered in 1990. The European Community had a regime which permitted a certain quantity of frozen beef and veal to be imported into the community each year free from the normal Community tariff but subject to a duty of 20%. In these proceedings the annual quantity permitted to be imported into the Community was referred to both in evidence and in the earlier judgments as the “GATT quota” and the meat imported pursuant to the quota was referred to as “GATT meat”.
Due to a removal of a ban on imports it became possible to import GATT meat into Ireland in 1986. Ireland was allocated in 1986, a quota of 455 tonnes of GATT meat. That was reduced to 395 tonnes in 1987 and was increased to 418 tonnes the following year and in 1989, was reduced to 381 tonnes. The regime provided that the distribution of the Irish quota was to be the responsibility of the Department of Agriculture as the responsible authority for the State. The Department determined that the quota should be allocated between meat processors and the allocation was based upon the certified figures for usage of meat for processing.
The evidence at this hearing established that Emerald Meats Limited applied to the Department of Agriculture for an allocation of part of Ireland’s quota of GATT meat but that such application was refused. This was due to the fact that the quota was allocated amongst meat processors and Emerald Meats Limited was a meat trader rather than a meat processor.
Mr. McCarthy acting on behalf of Emerald Meats Limited then set about obtaining part of the GATT quota by buying from the meat processors the quota which had been allocated to them. The motivation for purchasing such quota was that a quota had value in that, even after the 20% duty had been paid, the meat could still be sold within the European Community at approximately one half of the prevailing Community price. This was due to the relatively inexpensive cost of the meat in certain meat producing countries outside of the Community.
The evidence before this court establishes that in it’s early years Emerald Meats’ business consisted entirely of non-GATT meat. This was due to the fact that it was not until 1986, that GATT meat could be imported into Ireland. Thereafter Emerald Meats Limited rapidly developed its GATT meat business to the extent that by 1989/90, it was by far the most significant part of its business.
In 1987 and 1988, Mr. McCarthy acting on behalf of Emerald Meats Limited purchased a substantial portion of the total Irish GATT meat quota. In 1987, Mr. McCarthy and Emerald Meats Limited bought 177 tonnes of the Irish GATT meat quota and imported 159 tonnes of meat. 20 tonnes of the quota which was not used for imports were sold to another party. In 1988, the amount of quota purchased increased to 385 tonnes. The cost of purchasing the 177 tonnes of quota had amounted to approximately £160,000 in 1987 and the 385 tonnes of quota cost somewhat over £400,000 in 1988.
Mr. McCarthy had identified a potential profit source in meat trading in the purchase of GATT meat quota and the importation of GATT meat into Ireland. In 1988, Mr. McCarthy purchased nearly the entire Irish GATT quota and imported almost all the meat brought into Ireland under the quota.
The meat imported into Ireland under the Irish GATT quota was not intended for consumption or sale in Ireland but rather was imported for onward transportation to other European Community countries for consumption and sale in those countries. The reason for this was that Ireland was a large scale producer of meat and produced substantially more meat than was required for consumption or sale within Ireland. It therefore followed that the GATT meat imported into Ireland under the Irish GATT quota was cleared through Ireland and then re-transported out of Ireland to other European Community countries. This system was called ‘turnabout’.
In Ireland the Department of Agriculture had decided that the quota should be allocated among meat processors. These companies were involved in the export rather than the import of meat and meat products and therefore did not require the GATT quota or the GATT meat imported thereunder for their own use. This resulted in the meat processors, who were the owners of the GATT quota, being willing sellers of the quota. Mr. McCarthy exploited this willingness to develop a profitable business. Meat was imported from outside the European Community through Ireland (using the Irish GATT quota) for ultimate sale and consumption in other European Community countries.
The European Community regime started to alter in 1989. In that year 90% of that years quota was dealt with in the same manner as in 1987 and 1988, but 10% of the quota was retained for later distribution and administration by the community at the end of that year.
1989 also saw a change in Emerald Meats dealings with the meat processing companies from which they purchased the GATT quota. In 1987 and 1988, licences to import GATT meat were issued to Emerald Meats Limited by the Department of Agriculture “for and on behalf of” the relevant meat processors and Emerald Meats Limited took all the necessary steps to import the meat pursuant to those licences. However in 1989, Mr. McCarthy adopted a different system and in that year the licences which were obtained from the Department were issued to Emerald Meats Limited as the “transferee” of the meat processors who were entitled to the licences.
In 1989 the community had retained 10% of the total annual community quota of some 53,000 tonnes for administration and distribution at the end of that year. During the late summer of 1989, the community decided, by regulation, that some 90% of the retained 10% quota would be given to traditional importers. That approach to the 10% retained portion of the 1989 annual quota proved to be indicative of the fundamental change to the Community GATT regime which was to be introduced in 1990. In 1990 the Community GATT meat regime meat was totally transformed. Instead of a portion of the total GATT quota being allocated to each Member State to be distributed in the manner determined by the competent authority within such State a new and dramatically altered regime was introduced by Council Regulation 3889/89/EEC adopted on the 11th December, 1989 and Commission Regulation 4024/89/EEC adopted on the 21st December, 1989. Those Regulations taken together provided that 90% of the total Community GATT quota of 53,000 tonnes should be apportioned among importers who could prove that they had imported GATT meat during the previous three years. The 10% balance was apportioned between traders who could furnish proof that in 1988, or in 1989, that they had imported or exported at least 50,000 tonnes of non-GATT meat. Significantly it was also the case, under the Regulations, that it was no longer the individual Member States who decided how the quota would be distributed. That function was taken over by the Commission. (See article 6 of the Commission Regulation 4024/89).
Prior to 1990, the GATT quota regime was operated on an individual nation basis. Methods by which each E.U. country applied its GATT allocation varied from State to State. As indicated above in this country the GATT quota was allocated to beef processors. In 1990, the system changed and thereafter to obtain a quota one would either have to qualify as a traditional importer or under the newcomer’s entitlement.
The newcomer’s entitlement applied both to imports and exports of non GATT beef. The quota was E.U. wide with a portion allocated to each country. However there was no longer any need to import into a particular E.U. country and therefore an Irish company which had a GATT quota could import beef directly into any part of the E.U. After 1990, the Irish processors would only be allocated GATT quota if they could establish trade in their own name.
The alterations to the GATT quota system affected the Plaintiff in a number of ways. Firstly, the Plaintiff benefited from the changes insofar as the traditional quota was concerned. It was the Plaintiff who as the importer became entitled to the traditional element of the quota rather than the beef processors to whom the original quota had been allocated. This was confirmed by the judgment in the original hearing where the Plaintiff was identified as the importer of the GATT beef for the years 1987, 1988 and 1989, and the company was thereby entitled to benefit as the traditional importer under the new Regulations. The consequences were that the Plaintiff was confirmed as being entitled to a large part of the traditional GATT quota which was allocated to Irish companies.
Secondly, the Plaintiff’s position was significantly altered in relation to the qualification for newcomer’s quota. As a result of the changed regime all exporters of Irish beef became entitled to qualify for newcomer’s quota. The entitlement arose as a result of trade by those companies. The consequences of the fundamental change in the GATT regime from 1990, in relation to newcomer’s quota was that the new system favoured companies with meat available for export and who had customers to purchase Irish meat. This favoured integrated meat companies who could both source the meat and identify the purchasers.
Patricia Cannon, an official of the Department of Agriculture gave evidence in relation to the actual out turn relating to GATT newcomer’s quota in the fourteen years from 1990. This established that the companies who obtained by far the greatest amount of newcomer quota were large integrated companies who could source meat, process such meat and identify customers. The companies which received the vast bulk of the GATT newcomer quotas were large integrated companies with substantial turnover and assets.
The emphasis on exports from Ireland in relation to newcomer quota from 1990, was indicative of the fact that Ireland always produced more beef than was required internally.
A further significant alteration as and from 1990, was that turnabout was no longer operated. There was no need to import into Ireland beef from outside Ireland for sale in other E.U. Countries and therefore no need to incur the additional transport costs. This was the case because meat could be imported into any part of the E.U. on foot of the quota.
It is also the case that as and from 1990, all companies within the meat industry became and continued to become more cognisant of the benefits of a GATT quota. The window of opportunity which had been available to the Plaintiff in the 1987, to 1989, period, which the Plaintiff had so successfully exploited, was to some extent based upon a lack of awareness of the value of GATT quota within the market. That was no longer the case after 1990 as meat companies became aware of the value of such quota and were no longer prepared to sell their licences in the manner in which they had been prior to 1990.
As and from 1990, for a company to qualify for traditional GATT quota that company would have to establish that it was the importer in the reference years in issue. However to qualify for newcomer quota a company would have to establish either imports or exports of non GATT beef in the reference years. As pointed out above because of the nature of the beef industry in Ireland, the vast majority of the Irish trade qualifying came from exports rather than imports.
As and from 1990, if the Plaintiff was to increase its quota it would have to do so by making imports or exports of non GATT beef in its own name. There was a limited capacity to purchase licence and that could no longer be done with the same ease or at the same cost as prior to 1990. The system as operated in fact required substantial trading to qualify for newcomer quota. Even though there were some alterations to the quota allocation system after 1990, the basic concept remained the same and absent the accumulation of newcomer quota the consequence was that the traditional GATT allocation was diluted year by year as companies qualified for newcomer quota. Also under the new regime companies who qualified for newcomer quota would in time qualify for a proportion of the traditional quota which was finite.
In dealing with the consequence of this alteration Blayney J. in the judgment of the Supreme Court in Emerald Meats Limited v. Minister for Agriculture (No. 2) [1997] 1 I.R. 1 at p. 6 stated as follows:
“The meat processors were directly affected by this change. As long as the previous regime was in force, it was immaterial that they sold their quotas to Emerald. It did not affect their right to continue to receive them each year from the Department. But that situation was now finished. In future the distribution of the quota was in the hands of the Commission and the parties entitled to the major part of it were what the learned trial judge referred to in his judgment as ‘traditional importers’ i.e. importers who had imported GATT meat during the previous three years.”
Article 4 of Regulation 4024/89 provided that Member States should forward to the Commission by the 31st January, 1990, at the latest, the list of applicants for a quota of GATT meat. Emerald Meats Limited applied to the Minister for Agriculture to be included in the list of applicants on the basis of the GATT meat it had imported in 1987, 1988 and 1999. Twelve meat importers made similar applications based upon portion of the same imports claiming that Emerald Meats Limited had acted as their agent in relation to the 1987 and 1988 imports. It was that conflicting claim which was at the centre of the earlier proceedings within this case. The Department of Agriculture forwarded to the Commission the Plaintiff’s application in respect of its 1989 imports but forwarded the meat processors applications in respect of the 1987 and 1988 imports. It did so on the basis that the quotas had been awarded to the Meat Processors in those two years and that Emerald Meats had acted as their agent rather than being the true importer. It was that decision of the Minister for Agriculture which was central to the proceedings herein. Emerald meats claimed that it, and not the meat processors, should have been identified as the true party entitled to the GATT quota for 1987 and 1988. A number of the meat companies were added as defendants to the High Court proceedings wherein they disputed Emerald Meats claim.
The High Court held that the Plaintiff was entitled to damages against the first Defendant. The High Court held that the Plaintiff was only entitled to special damages and not to general damages. Notices of appeal against the High Court order were served by the defendants and a notice of cross appeal, relating to the failure to award general damages, was served by the Plaintiff.
The Supreme Court confirmed that the Plaintiff was the importer of the GATT meat in the relevant years, that is 1987 and 1988, and that the first defendant, the Minister, was in breach of his duty to the Plaintiff under Regulation 4024/89/EEC by failing to forward the Plaintiff’s application to the Commission and went on to determine that the Plaintiff was entitled to claim compensation from the State for the Minister’s failure to carry out the obligation imposed on him by Regulation. The Supreme Court determined that all damage suffered as a result of a tort was divided into general damage and special damage. General damage was damage which the law implied in every infringement of an absolute right, while special damage meant particular damage beyond general damage. The Supreme Court determined that it was difficult to see how the Minister could be liable for special damage but not for general damage and that further since both were equally caused by the wrongful act, that there was no reason why the Minister should not be liable for both.
Blayney J. dealt with the issue of general damages and Emerald Meats Limited entitlement thereto at pp. 18, 19 and 20 of the judgment and ultimately concluded (at p. 20):
“I am satisfied in the circumstances that Emerald is entitled to general damages, in addition to the special damages already awarded to it, and I would allow its cross appeal on this issue.”
It is the assessment of those general damages which is the issue for determination by this court and which was remitted to this court by the Supreme Court.
The changes which came into effect to the GATT regime in 1990 have been identified in the earlier judgment in the High Court, as being a startling and dramatic change in the law. When the Department refused to accept that the Plaintiff was the importer of GATT meat for 1987 and 1988, the Plaintiff responded in writing indicating that it would suffer huge losses if their application was not lodged in full with the Commission. The High Court ultimately determined in favour of the Plaintiff. As a result of the actions of the Department, the Plaintiff failed to obtain its full share of the 1990 quota. As pointed out in the earlier judgment in the High Court the evidence established that the Plaintiffs share in the quota should have been based upon imports for the years 1987, 1988 and 1990 amounting to 863 tonnes. Under Regulation 337/90 the Plaintiff should have obtained licences to permit the importation of 277 tonnes of GATT meat in 1990. In fact it only obtained licences to import 100 tonnes. The Department’s failure to properly apply the regulation meant that the Plaintiff suffered substantial financial loss in not receiving the balance of 177 tonnes. It did at a later date receive its entitlement and it is the delay in receiving such entitlement and the loss of opportunity during that period which underpins the claim for general damages.
The High Court determined that the Plaintiff was entitled to damages for breach by the Department of the duty it owed to the Plaintiff under the regulation. The High Court awarded a figure for special damages but made no award in relation to general damages.
There was a delay in the issuing of licences which the Plaintiff obtained in 1990 and it did not obtain licences for the full amount granted until the end of July 1990. The Department was under a duty to issue them after 9th February, 1990 and was in breach of that duty.
It is of significance that the High Court was satisfied, and so stated in the earlier judgment, that the failure to obtain the quota to which it was entitled severely disrupted the Plaintiffs business and its relationship with other traders. The evidence before this court confirmed the significant disruption of the Plaintiffs business and there is no doubt that the Plaintiff’s relationship with other traders and indeed with its bank was adversely affected by the wrongful act of the Department.
The High Court determined that the Minister for Agriculture had committed a wrong under European Community Regulations and decreed a sum of £416,795.76 for damages and interest to the Plaintiff. The High Court trial judge granted a stay upon the order and decree in the event of an appeal and such appeal was duly prosecuted by the defendants. The result of such an appeal was that the Plaintiff did not have access to the sum decreed for damages and interest. In 1992 the Plaintiff’s finances were in such a perilous state that its auditors advised that liquidation was a real risk. The Plaintiff brought a motion on notice to the Supreme Court and applied for a removal of the stay and argued that the continuation of the stay threatened the extinction of the Plaintiff. It was held by the Supreme Court in a judgment delivered on 16th July, 1992 ([1993] 2 I.R. 143) that the stay should be removed. In the judgment of the court McCarthy J. held (at p. 445):
“That … the financial position of the Plaintiff company is precarious. It has a permitted overdraft of £300,000 and at the date of swearing of the affidavit grounding this application the overdraft was approximately £350,000. …
The Plaintiff’s case is that is was denied access to its rightful GATT quota in the year 1990 which, in itself, damaged the business severely. If the Plaintiff company has to await a full hearing of the appeal it is stated to be highly likely that it will be out of business, even if it ultimately succeeds in full.”
The effect of the Supreme Court order which removed the stay was that the Plaintiff was entitled to access immediately the amount of the decree with accumulated interest.
The Supreme Court gave judgment in the full appeal on 3rd March, 1997. The judgment is reported in [1997] 1 I.R. at p. 1. The Supreme Court dismissed the defendants’ appeals and allowed the Plaintiffs cross appeal. The Supreme Court held that it was difficult to see how the Minister could be liable for special damage but not for general damage. Further, since both were equally caused by the wrongful act, there was no reason why the Minister should not be liable for both. The court held (Blayney J. at p. 20):
“That Emerald is entitled to general damages, in addition to the special damages already awarded to it.”
Up until the decision of the Supreme Court the Plaintiff company was in a position of significant financial uncertainty. It had succeeded in its claim in the High Court and had obtained payment of the decree together with interest. However, if the defendants appeal had been successful before the Supreme Court it would have had to repay that sum together with interest. That position, even without reference to the ongoing exposure to legal costs ensured that there was real and damaging uncertainty concerning the Plaintiff’s financial position. In the light of such uncertainty the capacity of the Plaintiff company to plan its operations and to order its finances was all but impossible.
It is also part of the background to the proceedings herein that the Plaintiff brought an application for interim measures in a case entitled Emerald Meats Limited v. Commission of the European Communities. In that case the Plaintiff claimed that it was unable to obtain satisfaction in discussions and that therefore it was necessary to bring an action seeking a declaration that the contested measures were void. The European Court determined that Emerald Meats had failed to make out a prima facie case for concluding that, if the contested provisions were annulled, the Commission would itself have the power to apportion the tariff “among the individual operations” and that in those circumstances the court held that Emerald Meats had failed to substantiate the factual and legal ground establishing a prima facie case for the interim measures applied for. The European Court ultimately determined in a decision delivered on 20th January, 1993 that Emerald Meats applications for annulment must be dismissed. At para. 57 of its judgment Emerald Meats Limited v. The Commission of the European Communities [1993] E.C.R. 1- 290, it held:
“ … the documents before the Court show that, in intervening with the Irish authorities on several occasions and making various amendments to its own measures to take account of the progress of the proceedings brought by Emerald Meats in the Irish courts, the Commission afforded Emerald Meats much more extensive assistance than it was under an obligation to give under the legislation at issue.”
The Court went on to hold in an observation (at para. 60):
“That by bringing proceedings against Ireland under Article 169 of the Treaty and by amending the reallocation regulation following the proceedings for interim measures in case C/317/90 R. in order to safeguard the rights asserted by Emerald Meats in respect of the newcomer’s quota, the Commission might have led Emerald Meats to believe that its claims were well founded.”
Arising out of such observation no order for costs was made against Emerald Meats notwithstanding that its claim was rejected.
Following the decision in the European Court in 1993, the Supreme Court proceedings continued until their ultimate conclusion in 1997.
The Plaintiff in these proceedings is the limited liability company and the claim is limited to that company and is not a claim by any of its shareholders or any related company such as Emerald London. As hereinbefore identified the assessment of general damages, which is the issue before this court, arises from the failure to allocate to the Plaintiff company in a timely manner the full amount of its GATT quota. The basis of the claim is not limited to the temporal failure to allocate the full amount of GATT but also to the consequence arising from such failure including the damage to reputation and business confidence. The central issue which the court must assess, in seeking to establish the general damages is the nature and extent of the loss of profits the company suffered as a result of the defendants’ wrongful act.
The Plaintiff puts forward its claim based upon the potential loss of business which it is claimed that the Plaintiff company suffered in its business of meat trading. That market is a wide and varied market and is one in respect of which there is a considerable volume of official information in the form of statistics. It is also the case that the court is looking at a market for a period that has actually occurred and is not in the position of endeavouring to ascertain or predict a future market. Therefore in looking at the meat trading market the court has the benefit of considering how that market actually developed. It is common case between the parties that the court can and indeed must have regard to how the actual market operated.
The basic rule of common law in relation to damages is that a party who sustains a loss by reason of a breach of contract or wrongful act by a party is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract had been performed or the wrongful act not committed. It is for that reason that the court in this case has to have regard as to what is the likely loss of profit that the Plaintiff company has suffered due to the wrongful acts of the first named Defendant.
One of the methods upon which the Plaintiff endeavours to calculate the potential or likely loss is on the basis of a calculation relating to the GATT quota share that the Plaintiff obtained in the market prior to the date of the wrong the subject matter of this claim.
There is no doubt, whatsoever, but that the market in which the Plaintiff obtained its GATT quota share prior to the wrongful act was fundamentally different from that market from 1990 onwards. The wrong occurred when there was a fundamental shift in the GATT market. That causes real and substantial difficulties in comparing the market performance of a company prior to such fundamental change with its likely performance in a different market at a later date. It is difficult to assume that such a company would have performed in a proportionate manner.
It is part of the Defendant’s response to the Plaintiff’s claim based upon the calculation relating to the GATT quota share obtained in the market prior to the fundamental change that the Plaintiff is attempting to assess its potential loss on a basis which does not confront the reality of actual trading experience in the market. It is claimed that the Plaintiff has provided no satisfactory explanation for ignoring, in its claim, how the market in fact changed after 1990.
The Defendant produced in evidence before the court a detailed and highly accurate assessment and analysis of the Plaintiff’s track record in the market place from the date of its establishment in 1983, up to the end of 1989. Mr. John White gave detailed and precise evidence in relation to the business conducted by the Plaintiff company during those years. That evidence is substantially unchallenged and the import of such evidence is accepted by this court as representing a true and accurate assessment of the Plaintiff’s actual track record. Mr. White prepared a report which he proved in evidence. In preparing that report he had access to the Plaintiff’s records and also to the extensive official statistics in relation to the meat trade. The evidence of Mr. White highlights the non GATT trading of the Plaintiff in the relevant years. The reason for this is that the Defendant contends that it was such trading that would be pivotal to making profits in the years from 1990, onwards.
The evidence of Mr. White, based upon his detailed analysis, is that by the end of 1989, the Plaintiff had effectively ceased the business of purchasing and supplying manufacturing beef and offal in Ireland. In the light of the evidence before this court that represents an overstatement but there can be no doubt but that during the period leading up to 1989, the evidence shows that the Plaintiff substantially reduced its business of purchasing and supplying manufacturing beef and offal in Ireland. That trade had been a significant part of the Plaintiff’s business in its initial years.
However the decline in the Plaintiff’s business of the purchasing and supplying of manufacturing beef and offal in Ireland does not represent a complete or accurate view of the Plaintiff’s business prospects. The reason for the decline is partially explained by the fact that in the years immediately prior to 1990, the Plaintiff company, had through Mr. McCarthy, identified a more profitable source of trade and had concentrated its endeavours during those years in the “turnabout” business.
During those years the Plaintiff, through Mr. McCarthy, had shown an ability and a capacity to identify a market opportunity. The court can conclude not only from the evidence of Mr. McCarthy but also from the other witnesses called by the Plaintiff that Mr. McCarthy had demonstrated an astute and inventive business mind capable of identifying and exploiting a real business opportunity. The court is satisfied that by the year 1990, Mr. McCarthy had the ability to understand and participate in a complex and competitive market and to be at the forefront of identifying a potential business opportunity. It is against that background that the court must assess the Plaintiff company and consider how it would have performed from 1990, onwards.
It is correct that during the period that the Plaintiff concentrated on “turnaround” that it had significantly reduced its earlier business of purchasing and supplying manufacturing beef and offal in Ireland. Given that such type of business would be central to the profitable exploitation of the market from 1990, onwards there clearly would be considerable challenges for the Plaintiff in re-orientating itself following the market change in 1990. The Defendant correctly identified the importance to the Plaintiff of non GATT trading activities in the period from 1990. In this court’s view the Defendant placed excessive emphasis on the decline in the Plaintiff’s trade in that area up to the end of 1989. The Defendant endeavours to use such decline to suggest that the Plaintiff would not have been able to develop its non GATT trading activities from 1990, onwards. The Defendant claims that such pre-1990, decline is inextricably linked to the analysis of any loss calculation. That emphasis fails to have sufficient regard to the fact that it was the Plaintiff company’s concentration on a more profitable form of trade during the years 1987, to 1989, which provides a substantial explanation of such decline.
The evidence before this court and Mr. White’s analysis demonstrate that in the years 1987, to 1989, the Plaintiff’s business concentrated on a type of trade where it in effect acted as a forwarding agent. The evidence shows that the vast majority of the GATT beef imported by the Plaintiff into Ireland was ‘turnabout’ business and related to the then regulatory requirement to import beef, to which a separate Irish GATT licence applied, into Ireland. The beef was only imported into Ireland so that the Irish GATT licence could be used and as soon as the import was completed the beef in question was shipped back out of Ireland usually to the U.K. At that time the GATT licence was of sufficient value to allow and permit a profit to be made even though the beef had to be directed through Ireland.
In carrying out its turnabout business the Plaintiff did not actually have to purchase the beef or to find a customer willing to buy the beef. The risks associated with such transactions were relatively modest both in relation to non payment and as to capital requirement. The evidence establishes that the majority of the business carried out by the Plaintiff in the years 1987, to 1989, was of a type which was significantly different from what would be required from 1990, onwards. That fact however cannot and must not be viewed in isolation. As stated above the lack of concentration on ordinary trade is partially explained by the Plaintiff’s concentration on the profitable and relatively risk free business of turnabout in the years 1987, to 1989. The court is careful to ensure that it does not place too much emphasis on the precise nature of the Plaintiff’s trade in the years 1987, to 1989.
By 1990, the Plaintiff had an established record in the meat trading business and had a developed a reputation which enabled it to do significant business in a trade which required and demanded a good reputation. In particular the Plaintiff had developed a reputation for honouring its commitments. Such reputation is an essential part of the capacity of a company to do business in the meat trade. Also by 1990, due to the fundamental shift in the GATT regime, the Plaintiff was faced with a situation where it was going to have to significantly alter its type of business from the business carried out by it during the years 1987, to 1989. The Plaintiff from 1990, onwards was trading in a different market and would have to establish new markets and clients. However the Plaintiff’s principal Mr. McCarthy had demonstrated a capacity, in the years before 1987, to develop and deal in non GATT meat. Also the development of Emerald London, both before and after 1990, demonstrated that a company with which Mr. McCarthy was involved could prosper in ordinary meat trading.
At the very time that the Plaintiff was required to fundamentally alter the nature of its business, to maximise its future profits, the Plaintiff was embroiled in extensive complicated and time consuming litigation. The Plaintiff was effectively a one man operation and therefore the consequences of the coming together in time of financial and legal uncertainty with the occasion when the Plaintiff would have to concentrate on altering its market activities inevitably had a significant adverse consequence for the Plaintiff.
The Plaintiff had a related company known as Emerald London. Mr. McCarthy who is the effective sole operator of the Plaintiff was a 50/50 owner of Emerald London with Mr. Marshall. The relationship between the Plaintiff and Emerald London was close and their businesses were intertwined. In the years 1987, to 1989, when the Plaintiff’s business was substantially based upon turnabout it was Emerald London who actually traded the majority of the GATT beef. The evidence of Mr. McCarthy and of Mr. Marshall confirmed a close continuing and intertwined business connection between the Plaintiff and Emerald London. There was an informal, but substantially observed business arrangement, whereby profits would be split equally or 50/50 between the two companies. In the years 1987, to 1989, trade was conducted whereby Emerald London would source the beef outside Ireland and arrange for the beef to be imported into Ireland from bonded storage, usually in the U.K., and the Plaintiff would act as the importer of the beef into the E.U. and then after it had been imported into the EU and had been the subject of an Irish GATT licence would be shipped back to the ultimate customer. This meant that Emerald London was the party actually involved in the trade insofar as the trade could be said to relate to identifying the source of meat and the ultimate customer.
The interconnection between the Plaintiff and Emerald London continued from 1990, onwards and financial support was provided by Emerald London in various forms. Emerald London continued to trade and did so without using turnabout as it was no longer available. Emerald London was able to develop its pre-existing trade connections and Mr. McCarthy, the effective proprietor of the Plaintiff, assisted in and supported Emerald London in such a venture. There is no doubt but that Emerald London had, by 1990, existing customers and contacts to facilitate non GATT trading activities and that these were availed of by Emerald London from 1990, onwards. The actual business record of Emerald London is of assistance to the court in demonstrating how a small, one or two man business, was able to develop and produce profits from 1990, onwards. Emerald London is not directly comparable with the Plaintiff because of a different history and due to the fact that it was primarily trading in the U.K., which was a beef importing country. However it had many similarities which are of assistance to the court in using Emerald London as a partial comparator. It was a small company operating in a large market which had to develop its trade and business within its own geographical area and rely upon its reputation and expertise to generate profit.
The intertwined relationship between the Plaintiff and Emerald London causes the court some difficulty in making direct comparison between the two companies. That is not only because they were operating in different countries and different markets but also because they were supporting one another. Post 1990 the companies would have been in competition for trade and would have to retain contracts for their own use rather than sharing them with the other company.
However the actual results achieved by Emerald London, operating on a not dissimilar scale from the Plaintiff, demonstrate how a well run small company could generate profits in the post 1989 EU wide meat market.
A number of factors are relevant in considering the position which the Plaintiff from 1990. Its ability to trade under the new regime was affected by a number of external and internal matters.
Those external matters were established in evidence before the court and confirmed by reference to actual real trading outturn. It is clear that there was increased competition for the manufacturing supply business from Irish and non Irish trading companies. It was also the case that direct sales played a more significant part and that there was an increasing tendency for direct dealings between the suppliers and the processors. Those direct dealings arose out of an attempt to reduce costs by removing the middle-man trader. It is also the case that from 1990 onwards there was an increased tendency towards integration. That is say that there were a number of instances of processing companies being taken over by larger meat companies who would then substantially supply the subsidiary direct from the meat companies own production. It is also the case that the type of trade which was carried out from 1990 required greater capital. This arose in part due to the fact that GATT beef was more expensive than manufacturing beef.
Mr. White’s evidence also shows that one of the consequences of the fundamental changes to the GATT regime was that from 1990 there was an expansion in the number of companies which applied for the share of newcomer GATT quota, using export qualification. This resulted in a wide dispersion of the Irish GATT quota among the new quota owners. This would have reduced the potential for a single trading company, such as the Plaintiff, with the limited resources, to grow its share of the Irish GATT quota in the manner claimed by the Plaintiff.
The manner in which the Irish beef market actually traded in the years from 1990 confirmed a consistent and ever present predominance of the export trade over the import trade. The evidence of Mr. White demonstrates that for the fifteen year period from 1990 that the average annual import volume was invariably significantly less than 10% of the export volume. The actual trade done by Irish meat trading companies during the relevant period was overwhelmingly directed towards the export trade.
The evidence also establishes that from the mid 1990s onwards the market operated on the basis that there were increased imports of non E.U. higher quality beef into the Irish market and that the same provided a potential trade opportunity. From 1995 onwards there was a market in chilled or frozen South American boneless hindquarter beef and that product was used by importers under the Hilton Beef Concessionary Scheme. The development of this business from 1995 onwards represented a potential area for business development for the Plaintiff.
There are a number of internal factors which were relevant to the Plaintiff’s capacity to generate trade from 1990. Firstly as identified above, the concentration on the turnabout business had resulted in the Plaintiff company having limited contact with suppliers and customers in the trading business in the years immediately prior to 1990. There had been a relative decline in the Plaintiff company’s non GATT trading business from 1988 onwards. This reduced contacts with the type of persons and companies who would be necessary contacts in the post 1990 market. It is also the case that even though the Plaintiff company’s credit rating was improving that there would have been an increased requirement for capital from 1990 onwards. This would have been of benefit to larger and financially strong companies. The internal operation of the Plaintiff in the years leading up to 1990 was such that part of the cash resources of the Plaintiff was transferred out of the meat company and into an associate property company. This reduced the financial flexibility of the Plaintiff. However, it is clear from the evidence that the overall financial position of the Plaintiff company, as viewed by its bank, took account of the financial resources available within the associate property company. The Bank took account of the assets within the property company when assessing the Plaintiff’s credit rating. However the transfer of funds into the property company inevitably reduced the financial flexibility of the Plaintiff. It was also the case that the development of the property company would have required the attention and time of Mr. McCarthy.
The change of the regime in 1990, coincided with the wrong the subject matter of these proceedings. At the very time that the Plaintiff was required to fundamentally alter its business its capacity to do so was significantly diminished. The availability of Mr. McCarthy to concentrate on the necessary far reaching changes in the business of the Plaintiff was reduced. The Plaintiff was also required to make funds available for litigation and became exposed to a substantial potential liability for third party legal costs.
The earlier High Court decision established that the Plaintiff did not receive the quota of 294 tonnes to which it was entitled in February 1990. 116.5 tonnes of the 294 tones were received during the calendar year 1990. That left a balance of 177 tonnes which were not received until July 1992. There was therefore a clear loss of cash flow both in relation to the delay in the initial allocation and the further delay of the final amount of 177 tonnes. The loss of cash flow was caused by not having access to the capital asset value of the full quota and the use of such asset to generate turnover. The loss of this cash flow is of particular significance because it is common case that the GATT quota that the Plaintiff should have received in 1990 would not have had any associated costs. It follows that if the Plaintiff had received its full entitlement in February 1990 that it would have had the effect of a significant capital boost and positive cash flow at the every time that the Plaintiff needed to alter its type of trade.
The court heard evidence in relation to an agreement between the Plaintiff and Emerald Meats London to the effect that 50% of the quota, or the proceeds thereof, would be remitted by the Plaintiff to the London company. That was an informal arrangement based upon the interlocking nature of the two companies. However it must be recognised that the evidence also established that the London company provided considerable financial assistance to the Plaintiff company.
Therefore as a result of the wrong the Plaintiff was a placed in a position at the time of the commencement of the new GATT quota regime that rather than have the additional substantial resources which would have emanated from the receipt of the 294 tonnes of quota in February 1990 that the reverse was the position. The loss of cash flow impacted not only on the Plaintiff’s business but also caused further pressure as a result of the obligations entered into by the associated property company.
At a time when the Plaintiff company needed its financial resources and cash flow to reorganise its business it was faced with having to use available resources to fund litigation. In the period up to the end of December, 1990 some €74,000 was expended in relation to legal costs. The figures which have been produced in evidence, including a table of legal costs, demonstrates that in the year 1991 a further €110,000 was spent on legal costs. Those costs were discharged out of available cash flow prior to the balance of the quota being received in July 1992. There was also considerable legal costs discharged by Emerald Meats London Limited. In total up to and including September 1995 over €600,000 was expended in relation to legal costs. It was not until October 1998 that the Plaintiff received the High and Supreme Court costs together with interest thereon. The Plaintiff received some €475,000 in High and Supreme Court costs together with interest of almost €210,000 resulting in a payment of some €684,000 in October 1998. The defendant in its defence endeavours to minimise the effect on cash flow of legal costs by suggesting that only a small portion of legal costs were discharged by the Plaintiff company up to October 1990. This fails to recognise the very substantial payments made on behalf of the Plaintiff by Emerald Meats London Limited and the increasing and uncertain financial position arising from incurred legal costs and the potential exposure of an adverse award of third party costs.
There is also no doubt but that there was a loss of management time due to the litigation. It was not just Irish litigation but there was also the associated litigation in the European Court.
The Plaintiff suffered a loss of reputation in that it was openly and publicly known to be involved in litigation with the Department of Agriculture and that in such litigation the Department had sided with the meat processors. The defendant contends that any damage to the relationship between the Plaintiff and the meat processors is not and cannot be attributed to any action on the part of the first named defendant. It is clear that by effectively siding with the meat processors in the High Court litigation it was inevitable that the Plaintiff’s relationship with the meat processors would be significantly damaged.
A small one man business requires financial and business certainty to prosper. The financial and business uncertainty brought about by the wrongs herein had a significant impact on the Plaintiff company. The Plaintiff’s legal entitlements were not established with certainty until the Supreme Court decision in 1997.
Mr. Eugene Sheehy of AIB, who was the manager dealing with the Plaintiff company in 1990, gave clear and precise evidence to the court. It is quite clear from his evidence that the Plaintiff and Mr. McCarthy had both established a good reputation and were deemed a credit worthy risk prior to the wrong the subject matter of these proceedings. The evidence established that Mr. McCarthy kept the bank informed as to the true position and was open in relation to the consequences and effect of the ongoing litigation. Mr. Sheehy in his evidence confirmed that the documentation provided to the bank by the Plaintiff in November 1990 stated that the Plaintiff company was experiencing difficulties. As of December 1990 there is reference within an internal bank memorandum dated the 7th December, 1990 to the fact that the Plaintiff company’s decision to sell GATT forward had been taken following a recent meeting with the bank branch where the need to cover interest, running costs and ongoing legal costs were discussed and the company were informed as of that time that the bank had no leeway beyond the present level of debt to support the company. The internal bank documentation, as proved by Mr. Sheehy, confirmed a continuing keen interest on the part of the bank in the litigation.
The bank were informed of the successful outcome of the High Court proceedings and also of the subsequent appeal and continued to monitor the litigation. On the 21st August, 1991 Mr. Sheehy wrote to his then superiors that the bank supported the company’s request and that it had full confidence in Mr. McCarthy’s ability and judgment in expediting the legal action and damages issue. The appeal by the State and the meat processing companies was identified by the bank as being disappointing with the consequent effect of causing further substantial delays. Finally undertakings had to be given to the bank in relation to the proceeds of the litigation. On the 5th August, 1992 the Plaintiff’s solicitors forwarded to the bank a cheque for £392,596.17 which was the amount of the award less an agreed retention of £58,000. It must be recognised that that payment to the bank was made out of proceeds of an award which remained under appeal.
By letter of the 15th August, 1994 Mr. McCarthy, on behalf of the Plaintiff wrote to Allied Irish Banks indicating his agreement that under the then current circumstances that no more cheques should issue and no more facilities would be made available from the bank and went on to state in the letter:
“It is most likely that we will get this appeal heard next year but in view of everything else that has ever happened with these legal proceedings it is only proper that I should mention the feasibility of an Article 177 referral to the court of justice following the appeal. I believe your legal department will understand exactly what I am thinking when I say this.”
The evidence from Mr. McCarthy, supported by Mr. Sheehy makes it clear that there was a real and continuing impact caused to the Plaintiff by the delay in the litigation and the uncertainty concerning the ultimate outcome.
Following the wrongful act the subject matter of these proceedings the Plaintiff suffered irreparable damage to such an extent that it had to effectively cease ordinary trade in 1990 and limit its business to the selling on of the GATT quota which it had acquired by its previous trading. It is correct to say that the award of special damages did not put the Plaintiff back in the position it would have been if the wrongful act had not occurred. This court is faced with the considerable difficulty of trying to establish a sum of money which would be appropriate to award to the Plaintiff based on a calculation of what would have occurred if the Plaintiff had been able to engage in normal trade.
A court in approaching damages should do so on the basis identified in Ratcliffe v. Evans [1892] (2 Q.B. 524) where it was stated by Bowen L.J. at p. 532 to 533:
“As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.”
That statement of the law recognises that the requirement of certainty and particularity must be approached against what is reasonable and having regard to the circumstances and nature of the acts themselves by which the damage was done. In this case the circumstances and acts giving rise to the damage had a significant impact on the Plaintiff company’s ability to trade and to develop into the future. It is against that background that the court must determine what is reasonable in relation to certainty and particularity.
The obligation on a court in relation to general damages, in cases such as this case where it is difficult to identify with certainty or particularity the damage suffered by a Plaintiff, is identified by the Supreme Court in Callinan and Deane v. VHI (Unreported, Supreme Court, O’Flaherty J., 28th July, 1994) where it was held (at p. 8):
“A party who suffers damage is required to be put in the same position as he would be if he did not suffer the damage: restitutio in integrum. It is obviously not the case that the Plaintiffs are in the same position as if the wrong had not been done to them; therefore, they must be entitled to damages. The fact that the actual figure to which they maybe entitled may not have been presented to the satisfaction of the judge does not mean that the Plaintiffs should not get any damages at all under this heading.”
In that judgment O’Flaherty J. quoted (at p. 9)with approval a statement from McGregor on Damages (15th Ed.) in a particular para. 344 thereof where it was stated:
“… where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams L.J. put it in Chaplin v. Hicks [1911] 2 KB 786, the leading case in the issue of certainty:
‘The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.’
Indeed if absolute certainty were required as to the precise amount of loss that the Plaintiff had suffered, no damages would be recovered at all in the great number of cases.”
As it is necessary to attempt to predict the type of profit that the Plaintiff would have generated if it had not been for the wrong committed it is appropriate that various theoretical scenarios should have been put forward and for the court to consider same. It is the case that the damages cannot be assessed with certainty but it is also the law that the Defendant in this case is not relieved of the necessity of paying damages. It is clear from the judgment of O’Flaherty J., quoted above, that the fact that the actual figure that the Plaintiff may be entitled to may not have been presented to the satisfaction of this court does not mean that the Plaintiff should not get any damages under the heading of general damages.
The court has had considerable assistance, from both sides, as to what actually occurred in the market after 1989. Due to the fact that the Plaintiff effectively ceased ordinary trade after 1990, what the court has to consider firstly is whether or not the effective cause of that cessation was the circumstances and nature of the wrongful act and the consequences flowing therefrom and secondly what would have been likely to have occurred if the Plaintiff had not ceased ordinary trading.
This court is satisfied that on the balance of probabilities the evidence establishes that the wrongful act in respect of which the claim is made gave rise to circumstances which had the consequence of effectively causing the Plaintiff to cease trade as and from 1990. The main trade carried out thereafter was limited to the business of selling on the GATT quota. Once the court is so satisfied it follows that in endeavouring to predict trade, which never occurred, that a considerable element of uncertainty and conjecture will arise. In those circumstances the arguments put forward on behalf of the Defendant that the Plaintiff has failed to discharge the onus of proof in this case cannot succeed. The general requirement of strict prima facie proof being required must be viewed against the facts and circumstances of the case. This court is satisfied that it was the coming together of a series of events and circumstances together with the wrongful act the subject matter of the claim herein which gave rise to the inability of the Plaintiff to continue to trade from 1990, onwards. The court is satisfied that the inability to properly trade, and therefore the ability to generate net profit, was caused by the wrongful act the subject matter of this claim.
The Plaintiff’s business was interfered with at a critical time causing a diversion of management time and of financial resources. The court must endeavour to calculate a reasonable basis for determining what would probably have occurred if the wrong had not been done and the Plaintiff had continued to trade. What trade the Plaintiff company would have done, absent the wrong, must inevitably be based upon conjecture but the court is able to consider such against what actually happened in the overall meat market. The court has that benefit because of the passage of time.
The facts of this case do not relate to the circumstances where a company has suffered financial loss of earnings or profits as a result of a diminished capacity to operate consequent upon a diversion of management time and resources but rather one of a company being effectively unable to trade because of the consequences of the impact of the wrong giving rise to this cause of action.
In summary the contention upon which the Plaintiff’s claim for general damages is based, is that the Plaintiff was in a good position to take advantage of unique opportunities that presented themselves in 1990, following the momentous changes in the Commission Regulations. It was at the same time as those changes occurred that the Plaintiff ought to have received the 294 tonnes of GATT quota, which was valued in 1990, as being worth IR£640,000. Such quota represented a valuable asset and could have been used to reposition the Plaintiff’s trading activities and to finance same.
Mr. Cyril Maybury of Ernst & Young gave detailed evidence for the Plaintiff in relation to projections, calculations and estimations of potential loss. He identified his instructions and the assumptions used and proposed two separate methods for assessing potential loss.
Both those methods were based upon conclusions which Mr. Maybury formed as a result of the information and instructions available to him. They were identified in four separate numbered paragraphs in the submissions from the Plaintiff in the following terms:
“1. That the Plaintiff suffered severe cash flow difficulties caused and shortly after the wrongful acts of the Defendant.
2. That the severe cash flow difficulties combined with the reputational damage caused by the Defendant’s wrongful acts resulted in a significant disruption to the Plaintiff’s business and the Plaintiff’s trade reduced dramatically.
3. That the Plaintiff received damages for the GATT quota but it has never received any compensation for the delays in receiving its due licence in respect of 1990 and 1991.
4. That the Plaintiff is not in a position to greatly benefit from the changes in the Commission Regulations and generate significant profits as a result of the actions of the Department.”
The first of the two methods is based upon a methodology where Mr. Maybury seeks to estimate the amount of GATT quota that the Plaintiff should have obtained from the Community and or purchased with rights in order to calculate Emerald’s losses from 1991, to 2001, based upon an historical fact that in 1989 and 1990, Emerald was actually allocated a weighted average of 39.24% of the total GATT quota allocated by the Community to Irish companies. In preparing method 1 Mr. Maybury assumed that but for the Department’s acts, the Plaintiff would largely have maintained that percentage share (i.e. 39.24%) of GATT quota allocated to Irish entities from 1991, onwards. That was described in his report as method 1.
That method was not put forward in the statement of claim. A different method resulting in a considerably lower figure for the potential loss was used. This court is satisfied that the foundation upon which method 1 is based is unrealistic and represents an unwarranted assumption not supported by the evidence. The momentous changes in the Commission Regulations relating to GATT which came into effect in 1990, meant that the trading record in the prior years had very limited relevance for subsequent years. The type of market and the nature of the trade was fundamentally altered. It was no longer possible to use turnabout and the whole basis of the type of trade upon which the Plaintiff had established its percentage share of the GATT quota effectively no longer existed. It would be necessary as and from 1990, to develop a new type of trade in order to acquire newcomer GATT quota. The Defendants contend that the advantage which the Plaintiff had during the 1987, to 1989, period could never be repeated after 1990. This court is satisfied that that is a correct contention.
Under the 1989 Regulations a company could qualify for quota under two headings either traditional quota or newcomer quota. To obtain traditional quota a company would have to show that it was the importer in the applicable reference years. To qualify for newcomer quota a company would have to demonstrate that it imported or exported non GATT beef in the reference years. Against that regulatory background the Defendant contends that the quota allocation to which the Plaintiff was entitled to in 1990, could not be maintained. This court is satisfied that that is correct. The factual and expert evidence demonstrates to the court that to increase quota as and from 1990, that the Plaintiff would have to have traded in qualifying exports or imports in very significant amounts. The Plaintiff’s real trading history up to the end of 1989, was such that it had limited expertise, contacts and existing customers to enable it to make exports or imports of significant amounts. Therefore the Plaintiff company would have to have developed those elements in a more open, transparent and competitive market. Also under the 1989 Regulations and thereafter the traditional GATT allocation would be diluted year on year as more companies qualify for newcomer’s quota which of itself would then subsequently, in later years, also qualify for traditional quota.
An examination of the evidence and the information produced in court demonstrates that the Plaintiff purchased a weighted average of over 70% of the total GATT allocated by the Community to Irish entities for the years 1987, to 1989. The claim for lost GATT trading made on behalf of the Plaintiff is that it would have continued to purchase GATT quota on a weighted average of that level either from Ireland or from elsewhere within the European Union. The Defendant contends that such scenario is most unlikely. This court is satisfied that the evidence and in particular the expert evidence of Mr. White confirms same. As and from January, 1990, under the new GATT Regulations there was an EU wide market for GATT quota that is quota sold without rights. The statistical evidence as to what occurred in the market place from 1990 and the evidence relating thereto confirms that there was a very small market for imported GATT beef into Ireland. Such beef as was imported into the EU was imported into countries other than Ireland where there was a significant demand for imported beef over and above the home produced beef. The court is satisfied that the assumption based upon the Plaintiff company trading to the extent required, as indicated above, to maintain its existing percentage of over 70% purchase of the total GATT allocated by the Community to Irish entities, is unreal and is not supported by the evidence. Indeed the very choice of the use of a weighted average over such a small number of years begs the question as to what can be gleaned from such a short term unique market.
It is part of the Plaintiff’s claim including the claim based upon method 1 that its business would have grown by a number of methods. It is contended on behalf of the Plaintiff that the use of newcomer companies to achieve GATT quotas based on exported beef to non EU countries would have earned the Plaintiff company 364 newcomer quotas. When one looks at the number of newcomer quota actually earned by other companies including companies with considerably greater assets and contacts within the market it is demonstrable that such a number of newcomer quotas is unrealistic. Companies which had greater financial assets, who were integrated throughout the entire meat business and who were in a considerably better position to identify and supply customers actually earned considerably less newcomer quotas. The court is satisfied that the type and nature of the market as and from 1990, was such that it is unrealistic and unsustainable to base a calculation on an assumption that the Plaintiff could have earned 364 newcomer quotas in the eleven year period from 1990, to 2001. Such a number is unrealistic by comparison with other companies within the market and would have been unachievable given the lack of financial strength and trading record of the Plaintiff company. The central basis of the Plaintiff’s claim under method 1 is predicated upon a growth in GATT earnings that is to say a growth in the Plaintiff’s GATT quota over the years 1990, to 2001. The evidence establishes that to do so the Plaintiff company would have been required to have obtained large amounts of newcomer’s quota. As pointed out above to qualify for such newcomer’s quota the Plaintiff would have had to export or import GATT beef. The actual breakdown in Mr. Maybury’s calculations as between imports and exports is based upon an assumption of 75% for exports and 25% for imports. Any comparison between the Plaintiff’s actual trading activities up to the end of 1989, with the extent of such activities required within the assumptions of Mr. Maybury demonstrates the unrealistic scale, scope and cost of same when compared.
When the court looks at the projections contained in method 1 the court finds that such projections are based on out turns which are most unlikely to have occurred and which are not grounded in actual events which occurred in the market from 1990. The link between the Plaintiff’s trading history and the suggested future is so tenuous and so without factual support as to be unreal.
The second method put forward in Mr. Maybury’s evidence in relation to the potential loss to the Plaintiff is that pleaded at para. 19(a) of the points of claim delivered on the 27th February, 2001. Those points of claim were delivered many years after the acts which gave rise to the claim. The claim put forward in para. 19(a) of the points of claim was as follows, namely:
“As a direct consequence of the Department’s acts the Plaintiff’s entitlement to GATT quota from the European Community (as it then was) significantly diminished from 1991, onwards. In or around 1990, the Plaintiff held a significant share of the total Irish GATT quota that was allocated by the European Community. In 1989 and 1991, the Plaintiff was allocated a weighted average of 68.65% of the Irish GATT quota and the Plaintiff claims that but for the actions of the Department it would have had growth in GATT quota allocated similar to that of Emerald Meats (London) Limited. In replying to particulars raised arising from the points of claim the point is stated at para. 2(b) of the replies of the 21st December, 2001:
‘… the figure of 68.65% used as a benchmark is derived from a calculation of the GATT allocation made to the Plaintiff in 1989 and 1991, as a percentage of the total quota allocated to Ireland at that time.’
In 1989, the Plaintiff received 32 tonnes out of a total allocation of 42 tonnes or otherwise 80.95% of the quota allocated nationally (this is the first time in which the Community administration of the system operated). It is not possible to establish a true figure for the 1990 allocation because of the first named Defendant’s unlawful actions. The fact that in 1990, the Plaintiff did not receive the quota to which it was lawfully entitled, whereas other parties did receive quotas to which they had no lawful entitlement, does not make a basis for the true calculation for that year. In 1991, the Plaintiff received 336 tonnes out of a total allocation of 497 tonnes which equates to 67.61% of the quota allocated nationally. If the average of the percentage allocated for 1989 and 1981, had been adopted the benchmark would have been 74.28%. However the figure of 68.65% used as a benchmark is a conservative estimate of the weighted average of GATT allocations made to the Plaintiff in 1989, to 1991.”
In the points of claim the Plaintiff contended that but for the actions of the Department the Plaintiff would have had growth in the allocated GATT quota similar to that of Emerald Meats (London) Limited. In para. 2(c) of the replies to particulars of the 21st December, 2001, it was contended that Emerald Meats (London) Limited’s experience could be used as a useful comparison in that it was able to trade without unlawful disruption during the relevant period. It was contended that this made Emerald Meats (London) Limited a useful benchmark for calculating the growth that the Plaintiff should have achieved but for the Defendant’s unlawful actions.
At the time of the replies to particulars it was indicated that although a comparison with Emerald Meats (London) Limited’s experience was useful it was not the only method by which the Plaintiff could assess its loss. Whilst the position was reserved in the replies to particulars, in the absence of actual figures for the quantities of GATT allocated by the Department in Ireland since 1991, no alternative method was put forward or identified until a later date when what is now known as method 1 was expounded.
This court is satisfied that Emerald Meats (London) Limited’s experience as to how it traded in relation to GATT in the years from 1990, onwards is of some benefit to the court in endeavouring to establish the extent of loss which the Plaintiff suffered. The trading activities of the London company are a useful comparison. The London company was a small, effectively a one man company, operating in the meat industry. However whilst the London company is a useful comparison it is far from a complete or accurate proxy of the Plaintiff. The London company was operating in circumstances of a different trading history, in a different jurisdiction, in a location where customers were present who desired to import substantial quantities of meat and where its earlier involvement in the Plaintiff’s turnabout business had resulted in it identifying customers and trading contacts which would continue to be of use after the change in the GATT Regulations in 1990. The customers and trading contacts prior to 1990 were effectively dealing with the London company and after the regulatory change the great probability is that the London company would continue to benefit from those contacts. This gave rise to the situation, hereinbefore identified, that the Plaintiff company would have to develop its own customers and trading contacts. That was not the position in relation to the London company. Also the London company operated in a country which had substantial requirements for beef imports. For the above reasons and a number of other reasons the London company is of assistance to the court in endeavouring to ascertain how the Plaintiff company might have operated but cannot be used as a true comparator or proxy. It is also the case that Mr. McCarthy continued to work with and to assist the London company and to benefit form its profits and at least part of expertise and work of Mr. McCarthy was thereby rewarded.
There is also a real issue in relation to the methodology used in method 2 insofar as it seeks to adopt 68.65% as a benchmark. That benchmark is derived from a calculation of the GATT allocations made to the Plaintiff in 1989 and 1991. Those allocations clearly would be of benefit in relation to traditional quota but for the reasons hereinbefore identified would have limited relevance in relation to the capacity to generate newcomer’s quota. It was for that reason that the court must approach with caution any comparison based upon the benchmark figure of 68.65% identified in the pleadings.
It was asserted by Mr. Maybury in his evidence and in his report that when assessing what would have been achieved by the Plaintiff company but for the actions of the Defendant that it is appropriate to consider the Plaintiff’s historic performance and use this as a benchmark (see para. 5.25 of his report). This court is satisfied that whilst in a majority of cases such an approach might be justified that the facts of this case result in such an approach being inappropriate. The historic performance of the Plaintiff company concerning share of GATT prior to 1990, was based upon a short, temporary unique opportunity. After the regulatory change in 1989, turnabout was no longer in operation and trading had to be based upon identifying customers and trading contacts for the actual import and export of beef. The Plaintiff’s historic performance was limited in that area and in those circumstances the use of the Plaintiff’s historic performance as a benchmark is inappropriate. The Plaintiff’s allocation of GATT quota in 1990, was 294 tonnes and given the circumstances, regulatory regime and manner in which the Plaintiff had obtained such quota it is not appropriate to take the entire of that figure as a base figure to apply to any gross percentage.
This court is satisfied that the methodology adopted in relation to both method 1 and method 2 is inappropriate and unjustified on the facts and circumstances herein. The central factual matter which underpins both methods of projections is the Plaintiff’s pre 1990 trading history. The court is satisfied, that the evidence demonstrates, that such history had limited relevance to post 1990 market. Absent the fact of the pre 1990 trading history the Plaintiff rests its calculations on projections which are aspirational rather than consistent with the actual market.
The methodology used in the points of claim and in method 2 is calculated upon a particular basis. It is that Emerald London’s GATT share increased in the years from 1990 to 2001 by over 300% from an allocation of some 66 tonnes in 1990 to an allocation of 286 tonnes for the year 2000/2001. In making the calculations under method 2 Mr. Maybury applied the actual growth rates for GATT quota allocated to Emerald London to the Plaintiff company. This resulted in an approach being adopted whereby the rate of growth achieved by Emerald London was applied to the Plaintiff company’s allocation of 294 tonnes which it achieved in 1990. This court is satisfied that given the manner in which the Plaintiff company had obtained its 294 tonnes that it is neither appropriate nor rational to take the figure of 294 tonnes as a base figure. There is no logic in taking 294 tonnes as the base figure when the later tonnes would have to be earned in a completely different market.
The court is satisfied that if one was to adopt the methodology used by Mr. Maybury in method 2 that the projected outturn results in the Plaintiff company having an entirely unrealistic and unachievable percentage of the total Irish market. The court is satisfied that the methodology used in method 2 is invalid in that it is inappropriate to apply a percentage growth rate to the Plaintiff’s GATT allocation of 1990. The amount of the Plaintiff’s GATT allocation in 1990 has very limited bearing on the amount of new comers quota that the Plaintiff might have earned in the following years.
The dissimilarity between the Plaintiff’s trading history and the trading history of the London company is demonstrated by the evidence which establishes that the majority of the London company’s GATT quota up to 1990 was earned by importing non GATT meat into the United Kingdom.
The unrealistic nature of the Plaintiff’s projections is confirmed by the evidence of John Horgan. The true import of Mr. Horgan’s evidence is that the plaintiff could not have achieved the level of trade required by the projections unless it had greater financial resources and better and more wide ranging contacts in foreign countries and an established track record of exporting meat to customers.
The evidence of Mr. White in relation to the actual developments in the Irish beef market from 1990 shows what actually occurred during that period. In the period between 1990 and 1995 there was a low level of imports of beef into Ireland in response to the new regulations. That low level was a reflection of the lack of any true import demand into this country at that point and time. Mr. White identified in his evidence that:
“The vast majority of Irish new comer GATT companies in this period were performed using eligible Irish beef exports.”
Mr. White’s evidence also establishes that from the mid 1990’s onwards, when duties were reduced post 1995, a market developed for the import of non E.U. higher quality beef into the Irish market. Thereafter a relatively large Irish beef import market for non E.U. product, primarily from Brazil, emerged. The evidence establishes that a company such as the Plaintiff would have been in a position post 1995 to exploit the competitive advantage to import, in competition with other companies, non E.U. beef into Ireland. The fact that is was the Plaintiff company’s larger Irish competitors which took over and dominated that growing market does not mean that the Plaintiff company might not have been in a position to obtain some small share of that market but for the wrong the subject matter of these proceedings. By 1995 the financial position of the Plaintiff company and its reputation was such that it was not in a position to exploit this developing market.
The real market identified in Mr. White’s evidence shows that in the period from 1991 to 2001 that 98% of applicant companies for Ireland’s newcomer GATT quota used exports as their means of qualifying for such quota. It is also the case that in the period from 1991 to 1996 that the Plaintiff was the only company to apply for newcomer quota using import qualification. This arose from the fact that in the first half of the 1990’s Irish meat export companies had no incentive to engage in trading GATT meat within the EU and there was no significant market for GATT meat within Ireland. This meant that the majority of companies in Ireland sold their quotas without rights for the maximum price obtainable on the market. Mr. White gave evidence to the effect that in the post 1990 period that the most commonly adopted option for Irish GATT quota owners was to sell their quota, without rights, to an E.U. trader, for the best price they could obtain. Thereafter that quota would be used to import GATT meat into the E.U. and sell it in member states where there was, compared to Ireland, a far more substantial import requirement for GATT beef.
Elizabeth Murphy gave evidence on behalf of the Plaintiff. Ms. Murphy clearly was an experienced expert in the meat trade. Both in her evidence and in her report she expressed the opinion that the Plaintiff would have been in a strong position to expand. She based such opinion on the fact that the Plaintiff company had built up a significant quantity of GATT quota which gave that company a firm financial basis. Her opinion was also based upon the fact that the Plaintiff was a trading company which had low overheads and was thereby in a position to react to changes in the business environment. She gave evidence that the Plaintiff had established contacts with overseas suppliers and contacts through the European Union and that Plaintiff company was eligible to participate in all the quotas either directly or indirectly and “was well placed to take advantage of full duty imports from 1995 onwards.” Ms. Murphy’s evidence paid little or no regard to how the market actually evolved from 1990 and was not based on how companies actually traded in the market.
The court is satisfied that the Plaintiff had established a good but limited financial base by 1990. It was also a trading company which had low overheads and was in a position to react to changes in the business environment. However the overall evidence, and in particular Mr. White’s detailed analysis, establishes that the Plaintiff had only limited contacts with overseas suppliers. Also as indicated above pre 1995 there was almost no beef imports into Ireland and even though the Plaintiff company might have been well placed to take some advantage of full duty imports that did not arise until 1995 onwards.
For the reasons identified above this court is satisfied that the two methodologies proposed by Mr. Maybury on behalf of the Plaintiff as a means of calculating the Plaintiff company’s potential loss is in both instances inappropriate and unjustified in the light of the facts established herein. That finding however does not result in the court forming the view that the Plaintiff did not suffer real loss and damage. I have already indicated earlier in this judgment that I will approach the assessment of damages in this case consistent with the statement of law by O’Flaherty J. in Callanan and Dean v. The V.H.I. That is to say the fact that the actual figure to which a Plaintiff may be entitled to may not have been presented to the satisfaction of the judge does not mean that the Plaintiff should not get any damages at all under this heading. Therefore even though this court does not accept either of the two methods put forward by the Plaintiff as a satisfactory presentation of the Plaintiff’s damages the court is still satisfied that the Plaintiff is entitled to general damages.
The court is satisfied that the wrong the subject matter of these proceedings had a real and permanent effect on the Plaintiff’s business. The Plaintiff gave evidence in relation to this matter and the court is satisfied that the Plaintiff’s evidence is correct. In particular when the Plaintiff stated in evidence that if he had:-
“… received my GATT, instead of just remaining inert and declining, I would have gone forward, I would have progressed my company. I would have reinvested the money in the company and I would have built up its quota using the methods available to me…”
The Plaintiff went on to state that he would have “… reinvested in meat trading …. So that is where I would have gone”. Mr. McCarthy confirmed that he would have reinvested a substantial proportion of the profits generated from the GATT allocation (which he was denied) and would have been able to obtain additional bank facilities and that is the first thing that he would have done. The court is satisfied that inertia and decline in the Plaintiff company was caused by severe cash flow difficulties combined with the reputational damage to the Plaintiff. Also during 1990 when the Plaintiff would have to have developed new trade Mr. McCarthy’s management time was significantly diverted towards litigation. Mr. McCarthy’s evidence confirmed the reputational damage. The common knowledge of the litigation together with the protracted nature of same caused uncertainty and had an inevitable effect on the Plaintiff’s capacity to trade. Mr. McCarthy’s evidence also confirmed that he spent significant amounts of time “fighting” various court cases rather than repositioning the Plaintiff company and concentrating on meat trading. The court is satisfied that the evidence establishes that the wrong committed by the defendant had in the words of Mr. McCarthy a devastating effect on the Plaintiff.
The activity of the property company is of little relevance as to how the Plaintiff company would have operated if it had received its full GATT allocation. The probability is that following the changes arising from the 1989 regulations during 1990 that Mr. McCarthy would have ensured that the funds available from the additional banking facilities were directed towards repositioning the Plaintiff company and building up its trade rather than in making further property investments.
The court is satisfied that the Plaintiff company needed to significantly reposition itself to continue to trade profitably from 1990. While Mr. McCarthy had some experience in relation to the export of meat that experience was not recent. Mr. McCarthy in his evidence confirmed that in the years prior to 1990 that he had not exported a lot of meat. The court is satisfied that it would have taken time and effort for Mr. McCarthy to establish contacts and business in the export markets.
There is no doubt that there were momentous changes in the meat business in 1990.
The main trading activity in which the Plaintiff company was involved in the years immediately prior to 1990 was no longer available after the 1989 regulations came into effect in 1990.
In concentrating on the turnabout trade in the years prior to 1990 the Plaintiff company had become less involved in normal meat trading and therefore would have to have built up such business from a low base.
The consequences of the changes in 1990 were that the established exporters in the Irish meat business became entitled to qualify for newcomers quota by virtue of the exports achieved by those companies.
After 1990 integrated Irish meat companies acquired a significant percentage of newcomer quota. This is shown by the evidence of Patricia Cannon and is set out in the schedule entitled “GATT newcomers by group 1990 to 2003”, Ms. Cannon’s evidence demonstrated the actual dominance of the integrated companies, such as Kildare Meats, A.I.B.P. and Kepak. The court has particular regard to how the market actually operated and gains considerable assistance, from the evidence of Patricia Cannon.
From 1990 Irish meat processing companies required to establish trade in their own name to obtain GATT quota. Thereafter there was a different market in the ‘selling of licences’ and licences were not sold in the manner that they had been prior to 1990.
From 1990 Mr. McCarthy, in operating the Plaintiff’s company, would have to have used a combination of import and exports to develop the company. It is improbable that the plaintiff would have operated in a manner significantly different from the Irish meat trade as a whole.
There was no specific detail available in the evidence to the court to support the claim that the Plaintiff company could have achieved the volume of trade required to support the projections contended for by the Plaintiff. The amounts claimed are unrealistic and unachievable when viewed against the trade actually carried out by larger and financially stronger companies. The evidence of Mrs. Elizabeth Murphy called on behalf of the Plaintiff, did not deal with any specific matters but rather identified opportunities.
The court is satisfied that but for the wrongs done to the Plaintiff it would have had greater financial resources available to it. However those additional resources would have been limited due to the nature and financial structure of the Plaintiff company. The evidence of Mr. Eugene Sheehy confirmed that the Plaintiff company and Mr. McCarthy had a good reputation and also confirmed that it is probable that additional financial resources would have been available to the Plaintiff company. It is clear from the evidence that the extent of those resources would have been dependent on the Plaintiff’ company’s ability to trade as it was viewed by the bank that it was such trade that provided the capacity to repay loans.
The evidence demonstrated that the net profit margin in the meat business was in the 1 to 2% region. Mr. White’s evidence suggested that the net profit margin was between 1 and 1 ½ percent whilst Mr. John Horgan the managing director of Kepak, referred to a recent report which stated that the net profit margin for integrated processors was in the region of 2%. Emerald London’s performance for the twelve year period to September 2002 showed that it achieved an overall net profit rate of 2.37%. Emerald London operated in a different market but its management structure and capacity to evolve in response to trends within the industry was similar to the Plaintiff’s history up to 1990. The 2.37% net profit margin is identified in the expert report of Julian Caplin referred to as an “addendum two”. This court is satisfied that the evidence establishes that it is probable that the Plaintiff’s overall profit margin would have been higher than the margin achieved within the Irish industry as a whole including NWL or by Emerald London. This is due in part to the fact that it is probable that a higher proportion of the Plaintiff’s business would have related to GATT quota.
The evidence established that the GATT quota which the Plaintiff should have received in 1990 would not have had any associated costs. This was due to the fact that the allocation of such GATT quota was based upon GATT imports in prior years. Therefore the costs of obtaining the GATT quota which the Plaintiff company should have received in 1990 had already been incurred. The court is satisfied that when one looks at the net profit rate achieved by Emerald London and taking into account the flexibility and expertise within the Plaintiff company and in the light of its low overheads and the probability that a higher proportion of the Plaintiff’s business would have related to GATT quota and given that the GATT quota which the Plaintiff company should have received in 1990 would not have had any associated costs that it probable that the Plaintiff company would have achieved a net profit margin in excess of that achieved by other meat companies.
The court is satisfied that the net margin of 8% on turnover suggested in the evidence called on behalf of the Plaintiff is entirely unrealistic but on the evidence available to the court it is probable that the Plaintiff would have exceeded the suggested 2% net margin and have achieved a margin of 3%.
Emerald London provides assistance to the court in relation to how it is likely that the Plaintiff company would have operated but for the wrongs the subject matter of these proceedings. Both companies are small, flexible and innovative. The fact that Emerald London operated profitably in each of the ten years as and from 1991 confirms the court in its view that but for the wrong the subject matter of these proceedings the probability is that the Plaintiff company would have continued to trade profitably. Emerald London achieved an average margin of net profit over an extended period of 2.37%. However it is also clear from the actual trading of Emerald London that a small company would have difficulty in expanding its turnover in such a competitive trade.
On the evidence it is unlikely that the Plaintiff company could have significantly enhanced its turnover by employing additional meat traders. Such traders were not readily available. Emerald London’s turnover fell between September 1990 and September 2000. However based on the evidence concerning other Irish companies, including NWL, it is probable that there would have been some limited capacity for the Plaintiff to increase its turnover during the relevant years.
NWL provides considerable assistance to the court as a comparator as to how the Plaintiff might have operated during the relevant period. NWL operated profitably, trading in Ireland, during the relevant years and generated a significant number, in excess of 100, newcomer quotas from 1990 to 1999. NWL was a small trading company actually operating in Ireland with real customers and actual business. NWL was a financially stronger company than the Plaintiff with a considerably greater turnover by 1990. In 1989 NWL had a turnover which was 7 times that of the Plaintiff company. The actual turnover achieved by NWL during the relevant period is of assistance to the court in determining the level of turnover which it would have been likely that the Plaintiff would have achieved but for the wrong the subject matter of these proceedings.
In his evidence and report Mr. Caplin examined the information in relation to NWL provided by Mr. John White. Mr. White gave evidence from actual experience in the meat industry confirming that it can be a difficult and brutal business. Mr. White identified the actual performance of NWL.
Mr. Caplin’s evidence and report shows that the turnover of NWL was seven times larger than the Plaintiff in 1989 and that NWL achieved accumulative turnover of 350 million Irish pounds in the ten following years. Mr. Caplin makes an adjustment for the fact that the ten year period was one and a half years shorter than the period covered by the plaintiff’s claim and thereby arrives at an adjusted turnover figure to cover the entire period of IR£402.5 million. Mr. Caplin makes the assumption that the relative sizes and growth rates of the two companies would remain constant and on that basis concludes that the Plaintiff company would have achieved a turnover of 1/7 of that actually achieved by NWL amounting to IR£57.5 million for the period of the claim. This was based on the fact that the Plaintiff achieved a turnover of IR£4.9 million between October 1990 and September, 1991. (A realistic figure to use given a turnover of some IR£3,000,000 in 1988 and a turnover of IR£4,418,000 for the 18 months to September, 1990). Mr. Caplin calculated the loss of turnover as a difference between that figure of IR£4.9 million and IR£57.5 million giving rise to a figure of IR£52.6 million estimated loss of turnover by the Plaintiff company for the period of the claim.
This court is satisfied that NWL represents the most realistic and accurate comparator in relation to the likely turnover which the Plaintiff company would have achieved during the period of the claim. NWL was a company actually operating within the changed and altered market as and from 1990. Whilst there are significant differences between the two companies the court is satisfied that NWL is the best comparator available in determining what would have been the probable turnover achieved by the Plaintiff. In using NWL the court is relying on real, actual and completed trades. It is also the case that NWL’s performance is consistent with the actual performance of the overall market.
If one applies the net profit rate of 3% identified above to the loss of turnover of IR£52.6 million one arrives at a loss of IR£1,578,000.00. That figure converts into €2,003,646.60 and is the figure which the court estimates is the loss of profit which the Plaintiff sustained as a result of the wrongs the subject matter of these proceedings in the period up to the end of June, 2001.
The projections and calculations which were put before the court and upon which the court has relied extend up to the end of June 2001. However over six years has passed since that date. If the sum identified in the previous paragraph been paid within a matter of months, by the autumn of 2001, then it would have represented the appropriate figure for general damages. However since six years has elapsed it is necessary to adjust the figure identified in the previous paragraph to take into account the time lapse in the identification and discharge of the general damages.
These have been protracted and long drawn out proceedings. They commenced in 1990 they went to full hearing in the High Court followed by an appeal resulting in a Supreme Court judgment of the 3rd March, 1997. It was not until the following year that the legal costs were discharged and as late as the 1st March, 1999 the first named Defendant was serving a notice of contribution and indemnity on the solicitors for the fourth and fifth named Defendants.
The Supreme Court indicated that the Plaintiff is entitled to general damages and that matter required to be fully litigated through the High Court. It commenced with points of claim in February of 2001 and ultimately came on for hearing before this court in 2006 and 2007. The reality of the first Defendant’s defence as set forth in the points of defence and as argued in this court was that whilst the Plaintiff was entitled to general damages on foot of the Supreme Court judgment that such damages should either be nominal or very small. In para. 16 of the points of defence it was expressly pleaded that it was denied that the Plaintiff had suffered very significant general damages over and above the items of special damage awarded to the Plaintiff on foot of the High Court judgment. The first named Defendant defended the proceedings before this court on that basis.
The necessity to establish the quantum of general damages has resulted in a further delay of in excess of six years from the delivery of the points of claim.
Earlier in this judgment I have identified the figure which the court believes is the appropriate figure for general damages based upon a calculation of such damages as of the end of June 2001 and the payment within a brief period thereafter. The court is satisfied that it is necessary to have regard to the fact that this judgment is been given in October 2007 and that the value of the sum of €2,003,646.60 identified above has diminished since the autumn of 2001. In the intervening years the annual inflation rate in this country has varied from a high of 4.9% for the year 2001 to a low of 2.2% for the year 2004. If the court was to apply the annual rate of inflation for each of the calendar years from 2001 to 2006 inclusive on a simple interest basis to the figure of €2,003,646.60 a figure for the six years of marginally less than €440,000 would arise. The court is satisfied that it is necessary to have regard to such inflation and to the diminution in the value of money from the end of June 2001 to date. In assessing general damages it is appropriate to have regard to inflation and the rate of inflation and to ensure that the figure for general damages is corrected to take proper account of same.
The court proposes to allow a figure of €446,353.40 as an additional figure to take account of the diminution in the value of the euro, due to inflation, from the end of June 2001. That figure is not an exact calculation but represents a realistic approximation and results in a total figure of €2,450,000.
It is necessary to provide for the diminution in the value of the euro which has occurred over a period of in excess of six years. If such allowance was not made it would result in the general damages awarded being appropriate for the year 2001 rather than the year 2007. The Plaintiff is entitled to an appropriate award of general damages as of October 2007. The protracted nature of these proceedings makes it all the more important that the Plaintiff should be compensated based upon present money values.
In the course of the written submissions the Defendant raised an argument in relation to mitigation. In the light of the findings hereinbefore made concerning the damage done to the Plaintiff’s capacity to trade the court is satisfied that the issue of mitigation does not arise.
The court determines that the Plaintiff is entitled to an award of general damages in the sum of €2,450,000.