Holohan v Donohoe

CourtSupreme Court
JudgeFINLAY C.J.,Henchy J.
Judgment Date11 February 1986
Neutral Citation1986 WJSC-SC 850
Docket Number[S.C. No. 305 of 1984]
Date11 February 1986



1986 WJSC-SC 850

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.




JUDGMENT delivered on the 11th day of February 1985by FINLAY C.J. [Hederman J. concurring]


This is an appeal by the Defendants against the Order of the High Court dated the 8th day of November 1984, made by Hamilton J., giving judgment against them for the sum of £94,373.25 and costs.


The judgment was in respect of personal injuries suffered by the Plaintiff as a result of the negligence of the Defendants and was entered subsequent to a trial with a jury. The grounds of appeal are confined to the assessment of general damages which was in the sum of£30,000 to date, and £55,000 in the future.


At the hearing of the appeal it was contended on behalf of the Plaintiff/Respondent that if the Courtshould conclude that the damages were excessive the Court had not got jurisdiction to assess the damages themselves, unless the parties to the appeal so consented. It was stated that the Plaintiff did not so consent and was particularly anxious to have the damages, if set aside, assessed by a jury on a new trial. In the alternative, it was submitted on behalf of the Plaintiff/Respondent, that even if the Court did have jurisdiction to assess damages consequent upon a finding that the damages awarded by a jury were excessive, it should not do so if the Plaintiff specifically required a re-assessment of her damages by a jury on a new trial.


The Defendant contended that the Court did have jurisdiction to assess the damages and that this was a case in which, in the interests of justice, that should be done.


I am satisfied the damages awarded by the jury in this case, on the evidence appearing in the transcript in relation to general damages in the future, were excessive and that they were excessive by a sufficient margin torequire the intervention of this Court.


The issue, therefore, as to the Court's jurisdiction to assess those damages themselves and the circumstances under which they should or should not do so, arises for determination.


The jurisdiction of this Court to hear the appeal from the decision of the High Court is vested in it by Article 34.4.3 of the Constitution, which reads as follows:

"The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed bylaw."


It has been decided by this Court in The State (Browne) v.Feran 1967 I.R. and In bonis Morelli: Vella v.Morelli 1968 I.R., that exceptions to or regulation of this right of appeal can only arise by virtue of a law or laws enacted subsequent to the coming into force of the Constitution.


Section 48 of the Courts (Supplemental Provisions) Act 1961expressly re-enacted the provisions of the Courtsof Justice Act 1924.


The provisions material to the issue arising in this case of section 96 of that Act are as follows:

"Every appeal from a judgment of the High Court or the Circuit Court in an action tried by a judge and jury or from any other judgment of the High Court or the Circuit Court, founded on the verdict of a jury in a civil case shall be made by way of motion before the appellate tribunal for a new trial... In any appeal to which this section applies, the appellate tribunal may, in lieu of ordering a new trial, set aside the verdict, findings and judgment appealed against and enter such judgment as the Court considers proper."


The net issue which arises on this appeal therefore is as to whether this section should be construed as restricting by way of regulation the jurisdiction of this Court upon the hearing of an appeal against a judgment of the High Court reached after a trial with a jury in a civil case so as to exclude the right which it otherwise would clearly have vested in it by the Constitution to substitute, where the justice of the case required, its assessment of the damages awarded for an assessmentmadeby the jury where it is satisfied that that assessment wasexcessive.


In the course of his judgment, in The People (A.G.) v. Conmey1975 I.R., Walsh J. stated as follows:

"Before turning to deal specifically with these provisions I wish to express my view that any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this Court or any particular provision seeking to confine the scope of such appeals within particular limits would, of necessity, have to be clear and unambiguous.rdquo;"


I accept that statement of the legal principles applicable and it, therefore, is necessary, in construing section 96 of the Act of 1924, as re-enacted by section 48 of the Act of 1961, to see whether it has, in clear and unambiguous language, confined the scope of an appeal from a High Court decision reached after a trial with a jury in a civil case, so as to inhibit the right of this Court to enter judgment based on its own assessment of damages.


It is contended on behalf of the Respondent that the provision contained in section 96 for an appeal to be byway of motion for a new trial, should be construed as indicating that where an appeal is allowed an order for a new trial is the norm and that the only exceptional alternative order which can be made is confined, in effect to a reversal of the entire judgment of the High Court. This contention is largely based on the reference contained in section 96 to the right of the appellate tribunal to set aside the verdict, findings and judgment appealed against, when compared with its power as it is contended to enter a judgment only.


It was further contended that section 96 of the Act of 1924 should be construed in the light of and having regard to the provision of section 94 of the same Act, giving to a plaintiff in certain categories of cases of which this is one, the right in the High Court to trial involving the determination of questions of fact by a jury. This contention may be summarised as being that if this Court substitutes for an assessment of damages which it holds to be either excessive or inadequate its ownassessment of damages that it has effectively deprived the Plaintiff of a right to the trial of the questions of fact involved in the assessment of damages by a jury.


I am not satisfied that these submissions are correct. It is appropriate to speak about the verdict, the findings and the judgment of the High Court where a trial with a jury in a civil case has occurred. I assume the verdict of the jury is the simple question as to which of the parties they decided should win. The findings of the jury are, clearly, the answers made by them to questions whether on liability or damages of individual findings and individual assessments of damages.


In the case of an appellate court, however, it seems to me inappropriate to speak of a verdict and, equally inappropriate to speak of its findings. The appellate court gives a judgment: the fact that it also gives reasons for that judgment does not create a situation in which it enters a verdict or makes a finding. I am, therefore, not satisfied that this section must be interpreted as confining, as it was suggested, theappellate court in an appeal from a jury trial in the High Court, either to directing a new trial or, in effect, to entering a judgment for a different party than the person who succeeded in the court below.


I do not consider that this view of the true interpretation of section 96 is affected by the provisions of section 94: section 94 clearly and unequivocally deals with the right of trial in the High Court in so far as it is relevant to the issues in this case. It does not purport to deal with the right of appeal from the High Court to the Supreme Court and it can not, in my view, be properly construed as affecting the powers of this Court on that appeal.


I, therefore, conclude that this Court has got jurisdiction in an appropriate and proper case to substitute its own assessment of damages for those made by a jury in a civil trial in the High Court and that, where it is necessary in the interests of justice, it should do so.


It, therefore, becomes necessary to consider the further and alternative submission made on behalf of theRespondent, namely, that even if this power exists it should not be exercised in the teeth of opposition from the Plaintiff, who has originally been awarded the damages.


I would accept that the expressed wishes of the Plaintiff in these circumstances are an important factor in the consideration by this Court of whether in any particular case it should make its own assessment of the damages. I do not, however, accept that the Plaintiff should have a right of veto in that context, for that would be inconsistent with the obligation of this Court to administer justice between the parties on the facts which are before it.


It would not be wise or possible to foresee every factor which the Court should take into consideration in different cases in exercising its discretion as to whether to assess damages or not. Obviously, if a plaintiff who has recovered the damages set aside expressly desires that they should be assessed by this Court, it would require very compelling and strong reasons to be advanced on behalf of the Defendant why the Court should not do that. Obviouslyalso, if the Court is not satisfied that it has before it in the transcript of the evidence of the trial below, a sufficiently concrete and clearcut set of facts which would permit it to assess damages, the discretion should not be exercised in that instance either.


In this case, although the Plaintiff has, through her Counsel, expressed a strong desire to have...

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