D.F. v Garda Commissioner and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date11 April 2014
Neutral Citation[2014] IEHC 213
Date11 April 2014

[2014] IEHC 213

THE HIGH COURT

[No. 8876 P/2012|
F (D) v Garda Commissioner & Ors
BETWEEN/
D.F. (SUING BY HIS TESTAMENTARY GUARDIAN AND NEXT FRIEND, K.M.)
PLAINTIFF

AND

GARDA COMMISSIONER, MINISTER FOR JUSTICE, EQUALITY AND DEFENCE, ATTORNEY GENERAL AND IRELAND (No.3)
DEFENDANTS

MENTAL HEALTH ACT 2001 S12

F (D) v GARDA CMSR & ORS (NO 1) UNREP HOGAN 14.1.2013 2013 IEHC 5

F (D) v GARDA CMSR & ORS (NO 2) UNREP HOGAN 11.6.2013 2013 IEHC 312

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

HANLY v NEWSGROUP NEWSPAPERS LTD 2004 1 IR 471 2004/21/4811 2004 IEHC 44

DOHERTY v MIN FOR JUSTICE UNREP MCGOVERN 15.5.2009 2009/13/3050 2009 IEHC 246

BEAUSANG v IRISH LIFE & PERMANENT PLC UNREP HOGAN 13.1.2014 2014 IEHC 1

IRISH PERMANENT BUILDING SOCIETY v CALDWELL 1979 ILRM 273

DULLAGHAN v HILLEN & KING 1957 IR JUR REP 10

MCMAHON & BINCHY LAW OF TORTS 4ED 2013 911

R (P) v C (K) (LEGAL PERSONAL REPRESENTATIVE OF C (M) (DECEASED)) UNREP BAKER 11.3.2014 2014 IEHC 126

KINSELLA v GOVERNOR OF MOUNTJOY PRISON 2012 1 IR 467 2011 2 ILRM 509 2011/31/8437 2011 IEHC 235

CONNOLLY v GOVERNOR OF WHEATFIELD PRISON UNREP HOGAN 16.7.2013 2013 IEHC 334

HANRAHAN & ORS v MERCK SHARP & DOHME (IRL) LTD 1988 ILRM 629

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

D (M) (A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 2 ILRM 305 2012/9/2311 2012 IESC 10

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

C, STATE v FRAWLEY 1976 IR 365

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 4

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51(2)

AKLAGAREN v HANS AKERBERG FRANSSON 2013 2 CMLR 1273 2013 STC 1905 2013 15 ITLR 698 CASE C-617/10

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 51(1)

EEC DIR 112/2006

EEC DIR 112/2006 ART 2

EEC DIR 112/2006 ART 250(1)

EEC DIR 112/2006 ART 273

EEC DIR 388/1977 ART 2

EEC DIR 388/1977 ART 2

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 325

CONSTITUTION ART 29.6

O LAIGHLEIS, IN RE 1960 IR 93

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 216(2)

AIR TRANSPORT ASSOCIATION OF AMERICA v SECRETARY OF STATE FOR ENERGY & CLIMATE CHANGE 2012 AER (EC) 1133 2012 2 CMLR 81 2013 PTSR 209 CASE C-366/10

HK DANMARK v DANSK ALMENNYTTIGT BOLIGSELSKAB 2013 3 CMLR 21 2013 ICR 851 2013 IRLR 571 CASE C-335/11

DEFAMATION ACT 2009 S28

Tort – False imprisonment – Constitutional rights – Plaintiff seeking declaratory relief and damages for false imprisonment, assault and battery, negligence, breach of duty, and breaches of constitutional rights– Whether some of these claims are sustainable or purely duplicative of subsisting common law claims

Facts: The plaintiff, Mr F, is severely autistic. In 2010 he was arrested by the defendants, the Gardaí, under s.12 of the Mental Health Act 2001 and detained for under an hour. The Gardaí contended that a member of the public saw the plaintiff chase two women with a large stick in the vicinity of the arrest. He was released once a registered medical practitioner explained his condition. The plaintiff contended that he was unlawfully arrested and that the arrest and detention caused him acute and unusual distress, further alleging that he was subject to inhuman and degrading treatment by being subjected to unjustified use of restraints which caused him additional unnecessary suffering. He claimed damages in respect of the nominate torts of false imprisonment and assault and battery, negligence and breach of duty, breaches of constitutional rights to liberty, bodily integrity, privacy and the person, and breaches of rights under the European Convention on Human Rights Act 2003, the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of Persons with Disabilities 2006. The plaintiff also sought declaratory relief in relation to the illegality of the arrest. The defendants contended that some of these claims are either unsustainable or merely replicating claims for damages in respect of the nominate torts of assault and false imprisonment, and have applied by motion to the High Court to have the claims based on the breach of constitutional rights, the 2003 Act, the Charter and the UN Convention struck out on a summary basis. The defendants further contend that it is inappropriate for a court to grant declaratory relief in aid of these common law and other remedies.

Held by Hogan J that, having examined the plaintiff"s individual claims, any claims that simply duplicate or cannot add anything to the well-established nominate torts of false imprisonment, assault and battery, or that present no justifiable issue, will be struck out pursuant to the Court"s inherent jurisdiction at the preliminary stage.

Hogan J held that the claim for damages for breach of the right to liberty adds nothing to the common law action for false imprisonment, referring to PR v KC [2014] IEHC 126, therefore striking out this claim. Hogan J would not strike out the claims based on the constitutional rights to the person and the cognate and overlapping rights to bodily integrity and privacy, because it is possible that the plaintiff will be able to demonstrate at the full hearing that these nominate torts will insufficiently vindicate these constitutional rights so far as the manner of his arrest by members of the Gardaí are concerned, referring to Hanrahan v Merck, Sharp & Dohme Ltd. [1988] I.L.R.M. 626. Hogan J noted that it was not suggested that the common law and constitutional remedies cannot adequately vindicate the plaintiff"s rights under the ECHR, therefore the claims based on its personal liberty and degrading treatment provisions add nothing to the existing false imprisonment, assault and battery, and breach of constitutional rights claims, and so this claim was struck out. The claim based on the Charter was held by Hogan J to be entirely unsustainable and was struck out since it could not be said that Ireland was implementing Union law within the meaning of Art. 51 of the Charter by effecting the arrest pursuant to s.12 of the 2001 Act. Since the provisions of the 2006 Convention have not been given effect under domestic law, Hogan J struck out the claim based on it. Furthermore, Hogan J. struck out the claims for declaratory relief given that the action will be sent down for trial with a jury; the jury have no role or function in relation to this remedy.

Judgment approved.

1

1. The plaintiff in these proceedings is a 28 year old man who, it is acknowledged, is severely autistic. As the proceedings are presently constituted the plaintiff claims damages in respect of the nominate torts of false imprisonment and assault and battery. Damages are also sought for negligence and breach of duty. The plaintiff further claims for damages for breaches of constitutional rights and for damages for breach of his rights under the European Convention of Human Rights Act 2003 ("the 2003 Act"). The plaintiff also claim damages for breaches of his rights under the Charter of Fundamental Rights of the European Union and under the United Nations Convention on the Rights of Persons with Disabilities 2006 ("the 2006 UN Convention"). The plaintiff additionally seeks declaratory relief in relation to the illegality of the arrest.

2

2. The defendants now contend that some of these claims should be struck as either unsustainable in their own right or as otherwise merely replicating claims for damages in respect of nominate torts of assault and false imprisonment. To this end they have applied by motion to have the claims based on breach of constitutional rights, breach of the 2003 Act, the Charter and the UN Convention struck out in a summary basis. They also contend that it is inappropriate for a court to grant declaratory relief in aid of these common law and other remedies. I will presently consider these claims in due course, but it is first necessary to sketch out the background facts of the case.

The background facts
3

3. The incident which gave arise to these proceedings occurred on 24 th September, 2010. The plaintiff's testamentary guardian, Ms. M., contends that on that afternoon Mr. F. had taken up his habitual position outside his grandparents' house when he was unlawfully arrested by members of An Garda Síochána at about 5pm in the evening and brought to a local Garda station. It is contended that no effort was made by the Gardaí to speak with either his mother or father, both of whom lived close by. I should pause here to say that the plaintiff's mother sadly died in January, 2012. While she was not living with the plaintiff's father at the time of her death, both parents were actively involved in caring for him.

4

4. According to Ms. M., the arrest of Mr. F, and his detention in unusual surroundings caused him acute and unusual distress. The custody records show that the plaintiff had been detained for just under an hour and that he had been arrested under s. 12 of the Mental Health Act 2001. He was released when his father - a registered medical practitioner - attended (along with the plaintiff's mother) at the Garda station and explained that he suffered from severe autism.

5

5. The defence filed by the State defendants does not dispute a good deal of this. It is contended, however, that a member of the public saw the plaintiff chase two women with a large stick or a branch of a tree in the general vicinity of the plaintiff's grandparent's house, although neither woman was actually struck. The Gardaí were then alerted and, on their arrival, following a...

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