Blehein -v- The Minister for Health & Children & ors,  IESC 40 (2018)
|Docket Number:||2013 373|
|Party Name:||Blehein, The Minister for Health & Children & ors|
An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: 2013 no 373
 IESC 000
High Court record number: 2002 no 9652 P
- and -
The Minister for Health and Children, Ireland and the Attorney GeneralDefendants/Respondents
Judgment of Mr Justice Peter Charleton delivered on Tuesday 31 July 2018
Since the issue of torts arising from an infringement of the Constitution has taken centre-stage on this appeal, a brief observation in concurrence with the judgment of McKechnie J, and the reasoning for differing from the reasoning of Hogan J, is appropriate.
The entitlement to recover damages for civil wrongs is based on the law of torts. Where a plaintiff has suffered recoverable harm and, in addition, proves that this resulted from some wrong of the defendant that accords with the definition of the tort pleaded, the plaintiff is entitled to damages. Over centuries of experience, the parameters of individual torts were set. Collectively, these operate as a resource for the settlement of civil disputes within boundaries that are both certain and fair. Rarely has any deficit been found in that corpus of law denying a plaintiff a remedy where fair-mindedness as a reflex would suggest that deprivation of damages against a defendant would be a denial of justice.
With the enactment of the Constitution in 1937, such entitlements as the freedom of speech and the freedom to associate were explicitly declared. The exercise of such rights might not necessarily be a reflection of the pre-Independence society which, through its tort law, protected neighbours against nuisances, provided remedies against false imprisonment and assault, gave damages to those whose reputations were unjustifiably diminished, had an amorphous action in conspiracy, circumscribed State liability, and held back the tide of liability against office holders. Only in 1932 were the various decisions that used negligence as an element of liability amalgamated to finally declare that negligence was an independent tort with a stand-alone, though often since disputed, definition.
Thus, a plaintiff losing his job because he wished not to join a trade union, a form of association protected by Article 40.6.1º (iii), might fairly be seen as excluded from work because of his conviction. For people holding that view, this would be more than the right to “express freely their convictions and opinions” under Article 40.6.1º (i) but, rather, an entitlement of choice that a free, Christian and democratic society should protect. Those excluding him ought to be liable as defendants under a species of wrong created under the Constitution; a form of civil wrong having all the features of a tort but based squarely on the text of our fundamental law.
With the enactment by the people of Ireland of the Constitution in 1937, Article 50 provided for the prior laws to “continue to be of full force and effect”. Since Meskell v CIÉ  IR 121, plaintiffs who have suffered an injustice through the infringement of their constitutional rights may pursue actions in damages where no civil...
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