Iarnród Éireann v GASPARI

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 16 July 1996
• Neutral Citation: 1996 WJSC-SC 3850
• Judgment citation (vLex): [1996] 7 JIC 1604
• Court: Supreme Court
• Date: 16 July 1996

1996 WJSC-SC 3850

THE SUPREME COURT

Hamilton C.J.,

O'Flaherty J.,

Blayney J.,

Denham J.,

Barrington J.,

IARNROD EIREANN v. GASPARI

BETWEEN:

IARNRÓD EIREANN - IRISH RAIL AND BERNARD PATRICK DOWLING

Plaintiffs/Appellants

AND

IRELAND, THE ATTORNEY GENERAL, MICHAEL DISKIN, PATRICK DISKIN, AND GIOVANNI GASPARI

Defendants/Respandents

Citations:

IARNROD EIREANN V GASPARI 1995 2 ILRM 161

CIVIL LIABILITY ACT 1961 S12

CIVIL LIABILITY ACT 1961 S14

CIVIL LIABILITY ACT 1961 S38(2)

COX V IRELAND 1992 2 IR 503

ART 26 OF THE CONSTITUTION & MATRIMONIAL HOMES BILL, IN RE 1993 1 IR 241

TUOHY V COURTNEY 1994 3 IR 1

CIVIL LIABILITY ACT 1961 S38

CIVIL LIABILITY ACT 1961 S46

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 74

TORTFEASORS ACT 1951

CIVIL LIABILITY ACT 1961 PART III

MERRYWEATHER V NIXAN 1799 8 TR 186

HORWELL V LGO CO 1877 2 EX D 365

KOURSK, THE 1924 P 140

Synopsis:

COMPANY

Rights

Enforcement - Property - Protection - Citizen - Personal rights conferred by Constitution - Identical rights claimed by company - (186,193,262/95 - Supreme Court - 16/7/96) - [1996] 2 ILRM 500

|Iarnrod Eireann v. Ireland|

CONSTITUTION

Personal rights

Citizen - Entitlement - Corporation - Claim - Assertion of identical rights to protect property - (186,193,262/95 - Supreme Court - 16/7/96) - [1996] 2 ILRM 500

|Iarnrod Eireann v. Ireland|

CONSTITUTION

Statute

Validity - Judgment - Enforcement - Damages - Recovery - Both defendants being concurrent wrongdoers - Joint and several judgment for entire damages entered against defendant corporation and defendant individual - Defendant individual being impecunious - Plaintiff's right to enforce judgment against defendant corporation only - Corporation found to be only 30% at fault for accident - ~Locus standi~ of defendant corporation to challenge constitutionality of enactment which permitted exercise of that right - Application of Article 50 to pre-existing common law - Civil Liability Act, 1961 (No. 21), ss. 12, 14 - Constitution of Ireland, 1937, Articles 40, 43, 50 - (186,193,262/95 - Supreme Court - 16/7/96) - [1996] 2 ILRM 500

|Iarnrod Eireann v. Ireland|

1 Judgment of the Court delivered on the 16th day of July,1996 by O'Flaherty J.

O'Flaherty J.

2 This is an appeal brought by the appellants from the judgment and order of the High Court (Keane J.) of 28th April, 1995, refusing a declaration that the provisions of s. 12 and s. 14 of the Civil Liability Act,1961were invalid having regard to the provisions of the Constitution.

3 At the conclusion of the argument, the Court indicated that the appeal would be dismissed and would give its reasons later. However, as then intimated, the Court declines to enter on a consideration of thelocus standi issue having regard to the conclusion it had reached on the substantive issue and the importance of resolving that issue with due expedition for the guidance of litigants in general and, in particular, those involved either directly or in a secondary manner in the cases which await the result of the instant litigation.

4 There follow the reasons for the Court's decision upholding the judgment and order of the High Court.

Background Facts

5 The background facts are set out in the judgment of the trial judge as well as in the decision of this Court in the action brought by Mr. Gaspari arising out of the train crash in which an Iarnród Eireann train collided with a herd of cattle, belonging to Mr. Patrick Diskin, at an accommodation crossing in Co. Mayo on the 24th September, 1989 [judgment delivered 15th December, 1993; unreported]. Proportions of fault were fixed at 30% against Iarnród Eireann and 70% against Mr. Diskin by the trial judge in that case (Johnson J.) and his judgment was affirmed in this, as well as all other respects, on appeal to this Court.

6 It is agreed on all sides that Mr. Diskin was not, and will not, be able to make any significant monetary contribution either in respect of Mr. Gaspari's award of damages or the many other claims (which it is said are likely to amount to about IR £4m) and which are awaiting disposal.

Essential Point on Appeal

7 While a case with many facets asserting unconstitutionality of the impugned sections was presented to the trial judge, the essential thrust of the appellants' attack on the legislation in this Court was a submission that in order for a legislative provision to accord with the Constitution it must be rationally connected to the objective sought to be achieved and not be arbitrary, unfair or based on irrational considerations; it must impair any protected right as little as possible and must be such that its effects on rights are proportionate to the objectives that the legislation seeks to achieve: it is said that the impugned sections fail to meet these criteria. In this regard, counsel for the appellants advanced an argument based on a comparison of the provisions of s. 12 and s. 14 with s. 38(2) of the same Act which refers to a court's entitlement to do what is "just and equitable" in certain circumstances and which will be noticed later in the judgment.

8 Miss Finlay, S.C., for the Attorney General, at the commencement of her submission, said that the case presented to this Court was a different one to that presented to the trial judge. No doubt, the case has now taken on a somewhat different complexion to that in the court of trial; essentially, the appellants rely on the doctrine of proportionality and would seeks to pray in aid the judgments of this Court inCox .v. Ireland [1992] 2 IR 503 and In Re Article 26 of the Constitution and the Matrimonial Homes Bill, 1993 [1994] 1IR 241. It was submitted, on behalf of the Attorney General, that the decision of this Court in Tuohy .v. Courtney [1994] 3 IR 1 had more relevance to what the Court had to decide.

The Impugned Provisions

9 Section 12 of the Civil Liability Act,1961 provides:-

10 (1) Subject to the provisions of sections 14, 38 and 46, concurrent wrongdoers are each liable for the whole of the damages in respect of which they are concurrent wrongdoers.

11 (2) Where the acts of two or more persons who are not concurrent wrongdoers cause independent items of damage of the same kind to a third person or to one of their number, the court may apportion liability between such persons in such manner as may be justified by the probabilities of the case, or where the plaintiff is at fault may similarly reduce his damages; and if the proper proportions cannot be determined the damages may be apportioned or divided equally.

12 (3) Subsection (2) of this section shall apply to two or more persons whose acts taken together constitute a nuisance, even thought the act of any one of them taken alone would not constitute a nuisance, not being unreasonable in degree.

Section 14 provides

13 (1) Where judgment is given against concurrent wrongdoers who are sued together, the court may give judgment against the defendants together or against the defendants separately and, if the judgment is given against the defendants together, it shall take effect as if it were given against them separately.

14 (2) Subject to subsections (3) and (6) of this section and to sections 38 and 46, each of the said judgments shall be for the full amount of the plaintiff's damages in respect of which the defendants are concurrent wrongdoers, together with any further damages in respect of which the particular defendant against whom the judgment is given is individually liable and, if the same jury has in its verdict apportioned damages between the defendants on the basis that the total of the damages awarded is meant to be equivalent to the plaintiff's loss resulting from the concurrent wrongs, the plaintiff shall be entitled to judgment against the defendants for the aggregate of such damages.

15 (3) The plaintiff may agree to accept an apportionment of his damages among the defendants according to their degrees of fault and, in...