G (A) v K (J) & Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 25 February 2011
• Neutral Citation: [2011] IEHC 65
• Court: High Court
• Date: 25 February 2011

[2011] IEHC 65

THE HIGH COURT

[15809P/2001]

G (A) v K (J) & Ors

BETWEEN

A.G.

PLAINTIFF

V

J.K. AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE 1989 AC 53 1988 2 WLR 1049 1988 2 AER 238

SWINNEY & ANOR v CHIEF CONSTABLE OF NORTHUMBRIA POLICE FORCE (NO 1) 1997 QB 464 1996 3 WLR 968 1996 3 AER 449

COWAN v CHIEF CONSTABLE FOR AVON & SOMERSET CONSTABULARY 2002 HLR 44 2001 EWCA CIV 1699

VAN COLLE & ANOR v CHIEF CONSTABLE OF HERTFORDSHIRE POLICE 2009 1 AC 225 2008 3 WLR 593 2008 3 AER 977

OSMAN & ANOR v FERGUSON & ANOR 1993 4 AER 344

OSMAN v UNITED KINGDOM 2000 29 EHRR 245 1999 1 FLR 193 5 BHRC 293

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

Z & ORS v UNITED KINGDOM 2002 34 EHRR 3 2001 2 FLR 612 2001 2 FCR 246 10 BHRC 384

CHILDREN ACT 1989 (UK)

W (HM) v IRELAND & ORS (NO 2) 1997 2 IR 141 1998/10/3158

LOCKWOOD v IRELAND & ORS UNREP KEARNS 10.12.2010 2010 IEHC 430

M (L) v CMSR OF AN GARDA SIOCHANA & ORS UNREP HEDIGAN 20.1.2011 2011 IEHC 14

TORT

Negligence

Duty of care - Proximity - Foreseeability - Public policy - Assault - Trespass - Personal injury - Rape by murder suspect brought to house of victim by Gardaí - Damages - Negligence - Breach of duty - Whether duty of care - Whether just or reasonable to impose duty of care - Whether defendants knew or ought to have known that suspect posed threat to plaintiff - Alleged failure to ensure safety of plaintiff - Whether action taken done in course of investigatory functions - Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; Swinney v Chief Constable of West Cumbria Police [1996] 3 All ER 449; Cowan v Chief Constable of Avon and Somerset Constabulary [2001] All ER(2) 204; Chief Constable of Hertfordshire v Van Colle [2009] 1 AC 225; Osman v Ferguson [1993] 4 All ER 344; Z v United Kingdom [2001] 29 FLR 612; W(HM) v Ireland [1997] 2 IR 141; Lockwood v Ireland [2010] IEHC 430, (Unrep, Kearns P, 10/12/2010) and LM v Commissioner of An Garda Siochana [2011] IEHC 14, (Unrep, Hedigan J, 20/1/2011) considered - Case dismissed against second, third and fourth defendants; damages awarded against first defendant (2001/15809P - Hedigan J - 25/2/2011) [2011] IEHC 65

G(A) v K(J)

Facts The plaintiff claimed damages against the first named defendant for assault and trespass and as against the second, third and fourth defendants for negligence, breach of duty, breach of statutory duty and breach of the plaintiff's constitutional rights. No defence was entered by or on behalf of the first named defendant and judgement was previously given against him, with damages to be assessed by the court. The first named defendant was the husband of the plaintiff's friend, who unfortunately passed away in May 1999. Following the death of the plaintiff's friend a member of the Gardai, at the request of the first named defendant brought the first named defendant to the plaintiff's house and requested that he be permitted to stay there. The plaintiff allowed the first named defendant to stay with her and the first named defendant subsequently threatened the plaintiff with a knife and raped her. The plaintiff had previously had problems with alcohol and had been treated for psychiatric difficulties also. Following the aforementioned incident the plaintiff was treated for anxiety and post traumatic stress disorder, the latter condition being aggravated by her underlying psychiatric problems. It was submitted on behalf of the plaintiff that at the time the Gardai brought the first named defendant to her house they knew that her friend's death was suspicious and the first named defendant was a leading suspect but did not advise her of same. The plaintiff argued that the Gardai should not have requested her to provide accommodation for the first defendant. It was submitted that there was a special relationship of proximity between the plaintiff and the relevant Garda member in this case and that it was foreseeable that the first named defendant, who had a history of rape and violence, would commit a crime of violence against the plaintiff.

Held by Hedigan J. in dismissing the claim against the second, third and fourth named defendants: That it was clearly established in Irish law that the Gardai do not owe a duty of care in respect of actions taken in the course of their duty to investigate and prosecute crime. The actions of the Gardai in bringing the first named defendant to the plaintiff's house on the night in question was an act done in the course of their investigatory functions that night. Consequently, the Gardai did not owe a duty of care towards the plaintiff. In any event, the actions of the first named defendant were not reasonably foreseeable. On the basis of the plaintiff's own evidence and having regard to the four medical reports submitted to the court the plaintiff was entitled to an award of damages against the first named defendant in the sum of €150,000 for pain and suffering to date and the sum of €50,000 for pain and suffering into the future.

Reporter: L.O'S.

1 1. The plaintiff claims damages against the first named defendant for assault and trespass and as against the second, third and fourth defendants for negligence, breach of duty, breach of statutory duty and or breach of the plaintiff's constitutional rights. No defence was entered by the first named defendant and judgment has been given against him, with damages to be assessed by the court.

2 2. The plaintiff resides in County Dublin. The first named defendant was serving a prison sentence at Arbour Hill Prison, Dublin 7 at the time these proceedings were instituted but has since been released. The second named defendant is a Minister of the Government and a Corporation Sole and has his principal offices at the Department of Justice, Equality and Law Reform, 72-76 St. Stephen's Green, Dublin 2. The third named defendant is the Irish State. The fourth named defendant is sued as legal representative of the second and third named defendants.

2 2 3.1 The plaintiff Mrs. A.G. is a separated woman. Her marriage broke up in 1993. At the time of the events complained of in 1999, she lived alone in Blanchardstown. She has suffered from depression since the break up of her marriage and was on medication at all relevant times as a result. She frequently attended unit nine, the psychiatric unit at James Connolly Hospital in Blanchardstown. The plaintiff also had problems with alcohol abuse. These difficulties were exacerbated by events which occurred in 1996 when she was stalked by a neighbour who was subsequently convicted of assaulting the plaintiff. He received a two year sentence.

Whilst attending unit nine, the plaintiff met a woman by the name of B. C. The two women became good friends and visited each other frequently. Both women had similar problems with depression and alcohol dependence. In 1996 B. C. met the first named defendant, J. K. and in November 1998 the couple got married. At the end of January, 1999, B. C. and J. K. moved in with the plaintiff for a period of approximately three weeks following a fire in their home. The plaintiff saw J. K. again in March, 1999, when he called over alone one night at 12 p.m. J. K had alcohol with him and he made crude suggestions to the plaintiff. The plaintiff went upstairs to bed and J.K. fell asleep in the sitting room. The next morning J. K. attempted to get into bed with the plaintiff who pushed him away and shouted at him to get out. J. K. left the house and did not return alone again. The next time the plaintiff saw J.K. was on the 27 ^th May, 1999.

3 3 3.2 At 12.10am on 27 ^th May, 1999, a call was made to Blanchardstown Garda Station to assist Dublin Fire Brigade with an incident at a house in Blanchardstown. As a result of this call Sergeant Brian Crummey, Garda Joseph Quinn and Garda Shane McGee attended the scene. They arrived at the house at 12:20 am and were informed by the ambulance crew that there was a dead body in the house and a man going berserk. The gardai entered the house where they found the body of a woman lying face down in the sitting room. The sitting room was in disarray, furniture was scattered, the television was upside down, and there were vodka bottles and scattered tablets on the floor. Garda Quinn and Sergeant Crummey went upstairs where they found J. K. leaning against a bedroom door sobbing. Garda Quinn spoke to the man who fainted and collapsed to the floor. Garda Quinn and Sergeant Crummey lifted the man onto the bed where he came around again. The Gardai and J. K. then went downstairs. Garda Greally and Garda Ruane arrived at the scene. Garda Ruane spoke to J. K. outside the house for 10-15 minutes. Garda Ruane then brought J. K. to Blanchardstown Garda Station. Sergeant Miley, Detective Garda Hannigan and other members of the Detective Unit arrived. Dr. Lionel Williams then arrived, examined the body and pronounced the woman dead. He pointed out a gash in the mouth of the dead woman to Sergeant Miley. Shortly afterwards Inspector Peter Hughes arrived at the scene. The death appeared suspicious to Inspector Hughes so he had the scene preserved for technical examination.

4 4 3.3 Some time later that morning, Inspector Hughes went to Blanchardstown station, J.K. was in the public office. Inspector Hughes asked him if he could identify the body. J.K. indicated he would. At 4.25am, Inspector Hughes, Detective Garda Hannigan, Sergeant Miley and J.K. went to the house and identified the dead woman. Inspector Hughes informed J.K. that he would require alternative accommodation as the house was being preserved as a possible crime scene and asked him whether there was anywhere he could go. J.K. indicated that he wanted to go to the home of the plaintiff whom he knew. He and his...