Buckley v Mulligan

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 04 October 2016
• Neutral Citation: [2016] IECA 264
• Docket Number: Record No. 2015/357
• Court: Court of Appeal (Ireland)
• Date: 04 October 2016

Liam Buckley

Plaintiff/Appellant

- and -

Eugene Mulligan, The Commissioner of An Garda Síochána, The Minister for Justice and Equality

and

Ireland

and

the Attorney General

Defendants/Respondents

[2016] IECA 264

Record No. 2015/357

THE COURT OF APPEAL

Damages – Wrongful arrest – Negligence – Appellant seeking damages for wrongful arrest, false imprisonment, assault and battery – Whether the award of the general damages made by the jury was just or proportionate

Facts: The plaintiff/appellant, Mr Buckley, claimed damages for wrongful arrest, false imprisonment, assault and battery. He claimed further damages for personal injuries allegedly sustained as a result of negligence on the part of the defendants/respondents, Mr Mulligan, the Commissioner of An Garda Síochána, the Minister for Justice and Equality, Ireland and the Attorney General, in and about his arrest on the 24th September, 2011, at George's Street, Drogheda. Mr Buckley failed in his claims for wrongful arrest, false imprisonment, assault and battery. He was successful in his claim for negligence albeit that the jury found him guilty of contributory negligence to the extent of 69%. The jury assessed his entitlement to damages in the sum of €16,875 with the effect that, having regard to his contributory negligence, he obtained an order for judgment in the sum of €5,231.25. As to costs, the High Court judge awarded Mr Buckley his costs on the District Court scale limited to a two day hearing, when taxed and ascertained. The appellant appealed to the Court of Appeal against that order of the High Court (De Valera J) dated 18th December, 2013. His grounds of appeal were: (i) that the award of general damages in the sum of €16,875 was inadequate having regard to his injuries and should be set aside as an error of law; (ii) that the jury's finding of 69% contributory negligence was grossly disproportionate having regard to the evidence; and (iii) that the trial judge erred in law in making the costs order which he did having regard to the relevant statutory provisions.

Held by Irvine J that she was satisfied that the award of the general damages made by the jury was not just or proportionate having regard to the evidence concerning the plaintiff's injuries and that it should be set aside in favour of an award of damages in the sum of €35,000. She was also satisfied that the jury erred in its approach to the issue of contributory negligence such that the Court should apply the provisions of s. 34(1)(a) of the Civil Liability Act 1961, with the effect that liability should be apportioned equally between the parties. Irvine J held that in such circumstances the appellant was entitled to an award of €17,500: an award which was governed by the provisions of s. 17(3) of the Courts Act 1981.

Irvine J held that she would allow the appeal and propose an award of general damages in favour of the plaintiff in the sum of €17,500, with costs to follow.

Appeal allowed.

Judgment of Ms. Justice Irvine delivered on the 4th day of October 2016

1 This is the appeal of the plaintiff, Mr. Liam Buckley, against the order of the High Court (De Valera J.) dated 18th December, 2013. That order was made following a six day hearing before a jury of his claim for damages for wrongful arrest, false imprisonment, assault and battery, and a further claim for damages for personal injuries allegedly sustained as a result of negligence on the part of the defendants in and about his arrest on the 24th September, 2011, at George's Street, Drogheda.

2 It is common case that Mr. Buckley failed in his claims for wrongful arrest, false imprisonment, assault and battery. He was, however, successful in his claim for negligence albeit that the jury found him guilty of contributory negligence to the extent of 69%. The jury assessed his entitlement to damages in the sum of €16,875 with the effect that, having regard to his contributory negligence, he obtained an order for judgment in the sum of €5,231.25. As to costs, the High Court judge awarded Mr. Buckley his costs on the District Court scale limited to a two day hearing, when taxed and ascertained.

The appeal

3 Whilst a relatively extensive notice of appeal was filed on Mr. Buckley's behalf, by the time the appeal came before this Court his grounds of appeal had been reduced to three in number. These may be summarised as follows:-

(i) That the award of general damages in the sum of €16,875 was inadequate having regard to his injuries and should be set aside as an error of law;

(ii) that the jury's finding of 69% contributory negligence was grossly disproportionate having regard to the evidence; and

(iii) that the trial judge erred in law in making the costs order which he did having regard to the relevant statutory provisions.

Submissions of the parties

4 Mr. Burns, S.C., on Mr. Buckley's behalf, submitted that a gross award of €16,875 was not proportionate or just having regard to the severity of his client's injuries. He referred the Court to Mr. Buckley's own evidence and to that given by the orthopaedic surgeons retained by the respective parties. They were agreed as to the extent of his injuries and as to his likely prognosis. He had sustained an un-displaced fracture of the malleolus and his left leg was in a cast for six weeks. He had then required some physiotherapy and remained somewhat symptomatic for a period of over two years.

5 Mr. Burns relied upon the Book of Quantum, published in 2004, to demonstrate the error of the jury's award. In respect of fractures to the lower leg which were substantially recovered, the parameters advised were €15,400 - €34,600. Those values were significantly out of date and were, he submitted, approximately 50% below what a judge sitting alone would be expected to award for the equivalent injury. He relied upon the decision of this Court (Edwards J.) in Cronin v. Stevenson and Another [2016] IECA 186 in support of his submission that the parameters for an award for a fractured ankle at the time of the hearing ought properly to have been within the €25,125 - €52,950 range. Having regard to the severity of Mr. Buckley's symptoms, his award should have been in the mid to upper end of this range of values.

6 As to contributory negligence, Mr. Burns accepted that he bore the onus of demonstrating that the jury had made a gross error when it apportioned liability as it did. He accepted that there was evidence to support a finding of contributory negligence on the part of his client, principally by reason of his alcohol consumption. As to the extent to which such consumption likely contributed to his injuries, counsel drew the Court's attention to the fact that his client had been considered sufficiently sober to receive an adult caution thirty minutes after his arrival at the garda station. The jury's finding should have been no more than 30% - 50% given that Mr. Buckley's liability had to be assessed by reference to his blameworthiness for the injury sustained. Mr. Buckley had never previously been arrested and had not been involved in any disturbance on the night in question. His injury was sustained as a result of the fact that, in the course of his arrest, he and Gda. Mulligan had fallen to the ground. That fall occurred because they lost balance. He accepted that his client's resistance to arrest would have been a contributory factor but submitted that Gda. Mulligan also contributed to the fall insofar as he had lent in over Mr. Buckley applying weight to him in the course of a turning manoeuvre. As to the extent of Mr. Buckley's resistance, Mr. Burns relied upon his custody record which recorded the 'circumstances of the offence' and which made no reference to his client having resisted arrest.

7 As to costs, Mr. Burns submitted that s. 94 of the Courts of Justice Act 1924 (the '1924 Act') applied and that, in the absence of special circumstances, having succeeded in his action Mr. Buckley should have been awarded his costs on the High Court's scale. Whatever about awarding him costs on the Circuit Court scale there were no circumstances to justify the limitations that had been imposed by the High Court judge particularly having regard to the fact that the award was low due to the manner in which the jury had apportioned liability. Mr. Buckley was entitled to pursue his action for wrongful arrest, false imprisonment, assault and battery before a jury and likewise his claim for damages for negligence, given that that cause of action arose out of the same set of facts. He could only have a jury trial in the High Court. Regardless of the fact that he had lost his claims for wrongful arrest, false imprisonment, assault and battery, those proceedings had been reasonably pursued and he had succeeded in his claim for damages for negligence. Thus, counsel submitted, Mr. Buckley's entitlement to costs fell to be considered in the context of an action properly brought in the High Court.

Respondents' submissions

8 Mr. Callanan, S.C., on the defendants' behalf, accepted that the award made by the jury was somewhat frugal. However, it was not disproportionate to the point that it should be considered to amount to an error of law. The award came within the lower end of the range advised in the Book of Quantum. He submitted that an appellate court should afford a jury somewhat greater latitude than it would do a judge sitting alone when considering whether the award ought to be set aside on the grounds that it lacked proportionality.

9 As to the jury's apportionment of liability, Mr. Callanan submitted that the plaintiff had not established that it had made a gross error as was required to displace its finding of contributory negligence. There was evidence to support a substantial finding of contributory negligence. He relied upon Mr. Buckley's consumption of alcohol, the fact that he had resisted arrest and that...