Byrne v Ireland

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1972
Date01 January 1972
Docket Number[1967. No. 936 P.]
Byrne v. Ireland
KATHLEEN BYRNE
Plaintiff
and
IRELAND and THE ATTORNEY GENERAL
Defendants.
[1967. No. 936 P.]

Supreme Court

Constitution - The State - Sovereignty - Whether the State has immunity from suit - Prerogative - Personal rights - Right of action in courts - Parties - Representation - Attorney General the proper person to represent the State - Negligence - Vicarious liability of the State for tortious acts of its servants - Ministers and Secretaries Act, 1924 (No. 16), s. 6 -Constitution (Amendment No. 27) Act, 1936 - Constitution of the Irish Free State, 1922, Article 73 - Constitution of Ireland,1937, Articles 5, 30, 34, 40, 49, 50.

The plaintiff was walking on a public footpath when she fell and was injured by reason of a subsidence of the path at a point where a trench had recently been excavated and refilled by persons, employed in the Department of Posts and Telegraphs, who were civil servants. The plaintiff brought an action in the High Court in which she named "Ireland" and the Attorney General as defendants and claimed damages from the defendants for the negligence of their servants or agents. At the trial of a preliminary point of law it was

Held by Murnaghan J. that the declaration in Article 5 of the Constitution that Ireland is a sovereign State excludes from the jurisdiction of the Courts an action in which the State is the defendant.

On appeal by the plaintiff it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh J., O'Keeffe P., Budd and FitzGerald JJ.), in allowing the appeal, 1, that the former prerogative of immunity from suit did not exist in Ireland after the enactment of the Constitution of the Irish Free State, 1922, and therefore was not vested or continued by Articles 49 and 50 of the Constitution of Ireland, 1937.

2. (FitzGerald J. dissenting) That the State is a juristic person which is liable vicariously for the tortious act of a servant of the State committed in the course of his employment, and that the Courts have jurisdiction to entertain and determine an action brought by a plaintiff who claims damages from the State in respect of that tort.

Comyn v. The Attorney General [1950] I.R. 142 and

Macauley v. Minister for Posts & Telegraphs [1966] I.R. 345 approved.

3. That the Attorney General was the proper person to be appointed to represent the State in the action.

Attorney General v. Northern Petroleum Tank Co. Ltd. [1936] I.R. 450 considered.

4. That the evidence established that the persons who had been working at the trench had been working as public servants of the State.

Trial of Point of Law

On the 18th September, 1965, the plaintiff suffered personal injuries as a result of a fall caused by the subsidence of the footpath on which she was walking. The subsidence occurred at a point where recently a trench had been cut and refilled by persons employed in the Department of Posts and Telegraphs. Neither the Minister for Posts and Telegraphs nor his Department was the relevant highway authority. It had been held by the High Court in Carolan v. Minister for Defence1 that the relationship of master and servant did not exist between the Minister for Defence and a member of the armed services of the State so as to make the Minister liable vicariously for the negligence of a soldier.

In actions where the claims were per quod servitium amisit it had been held by the High Court in The Attorney General v. Dublin United Tramways2 that the relationship of master and servant existed between the People of Ireland and a policeman; and the Supreme Court had held in Minister for Finance v. O'Brien3 and in The Attorney General v. Córas Iompair Éireann éireann4 that the relationship existed between the People of Ireland and a postman. However, in The Attorney General v. Ryan's Car Hire Ltd.5 the Supreme Court had held that a member of the defence forces was not within the class of servants in respect of whom the action per quod servitium amisit lies, thus overruling the earlier cases in respect of that cause of action.

On the 19th April, 1967, the plaintiff issued and served a plenary summons claiming from the People of Ireland and from the Attorney General damages for the negligence, breach of statutory duty and nuisance of the defendants, their servants6 and agents; on the same day service of the summons was accepted by the Chief State Solicitor on behalf of the Attorney General "without prejudice to the issue as to the right of any citizen to sue 'the People of Ireland' so named and as to my entitlement to represent such named defendant . . ." On the 21st April the Chief State Solicitor entered an appearance "for the defendant in this action with the sanction of the Attorney General without prejudice" as aforesaid. On the 13th June the plaintiff delivered the following statement of claim:—

"1. The plaintiff is a children's nurse and resides at The Cottage, Kilmacanogue in the County of Wicklow.

2. On the 18th September, 1965, the plaintiff was lawfully walking along the public highway known as King Edward Road, Bray, in the County of Wicklow when owing to the negligence and breach of duty of the defendants, their employees servants and agents in the laying of installations under the footpath forming part of the said highway the said footpath subsided causing the plaintiff severe personal injuries loss and damage. Alternatively the plaintiff says that the condition in which the said footpath was left as aforesaid amounts to a nuisance in law.

3. Particulars of special damage

Doctor Kennedy (continuing) £15.15.0d.
Surgeon McAuley 3. 3.0d.
X-ray 2. 2.0d.

The second named defendant is sued as one of and as representing The People of Ireland and a representative order will if necessary be sought at or before the trial hereof. The plaintiff claims damages.

John B. Cassidy"

At the trial of the point of law the plaintiff adduced evidence to establish that the subsidence of the footpath had been caused by the excavation and subsequent filling of a trench in the footpath by persons employed in the Department of Posts and Telegraphs.7

On the 9th August, 1967, the defendants delivered a defence of which the first paragraph was as follows:—

"1. The defendants will object that the statement of claim is bad in law and discloses no cause of action against the defendants or either of them on the grounds following:—

  • (a) The Court cannot exercise jurisdiction over The People of Ireland in this action as the judicial power granted by the Constitution does not of common right extend to actions against the sovereign authority.

  • (b) The action, based on alleged tortious acts and omissions and breach of duty, is not maintainable in law by reason of the immunity of the People as the sovereign authority against such actions.

  • (c) The action cannot be maintained against the Attorney General as one of or as representing the People and the representative order sought cannot be made."

In her reply delivered on the 9th October the plaintiff pleaded that the judicial power granted by the Constitution is not limited by the Constitution so as to confer immunity upon the People; that the Court had full original jurisdiction and power to determine all matters and questions of law or fact, civil or criminal; and that the Attorney General was one of the People of Ireland and that the Court had jurisdiction to appoint him to represent the People.

On the 6th November the High Court (O'Keeffe P.) ordered by consent "that 'Ireland' be substituted as defendant for the above-named 'The People of Ireland' and that the originating plenary summons and all subsequent proceedings herein be amended accordingly"; and it was thereby on consent further ordered "that the following issues be tried by a judge without a jury with liberty to any party to adduce evidence on such issues:—

  • 1. Whether the Court can exercise jurisdiction over 'Ireland' in this action as the judicial power granted by the Constitution does not of common right extend to actions against the sovereign authority.

  • 2. Whether the action based on alleged tortious acts and omissions and breach of duty is maintainable in law by reason of the immunity of 'Ireland' as the sovereign authority against such actions.

  • 3. Whether the action can be maintained against the Attorney General as representing 'Ireland' and the representative order sought can be made.

  • 4. Whether the persons or any of them alleged to have committed any of the tortious acts alleged in this action were either servants, employees or agents of 'Ireland'.

  • The plaintiff to set said issues down for trial accordingly."

Article 30, s. 1, of the Constitution of Ireland, 1937, provides that:—"There shall be an Attorney General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as are conferred or imposed on him by this Constitution or by law."

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court.

Cur. adv. vult.

Murnaghan J. :—

Evidence was given before me from which it would appear that, on the day or days prior to the accident, employees of the Department of Posts and Telegraphs had opened and then filled in a trench in the footpath on which the plaintiff alleges she was walking on the date of the accident; and that the plaintiff suffered personal injury due to an alleged subsidence in the trench.

The essential question for my decision on this issue is whether the plaintiff can maintain successfully an action for damages against "Ireland." The short answer is:—"No."

It was stated by the plaintiff's counsel that the defendant "Ireland" was synonymous with "The State"and the entire of the argument proceeded on that basis. The basic submissions on behalf of the plaintiff were, first, that the State is a creature of the Constitution; secondly, that the State...

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