Madden v Doohan and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 09 October 2012
• Neutral Citation: [2012] IEHC 422
• Docket Number: 12044p/2000
• Court: High Court
• Date: 09 October 2012

[2012] IEHC 422

THE HIGH COURT

12044p/2000

Madden v Doohan & Ors

BETWEEN

MARGARET MADDEN

PLAINTIFF

AND

MICHAEL DOOHAN, MICHAEL JOSEPH HERRON, THOMAS DERRIG AND PATRICK MCGRATH

DEFENDANTS

CIVIL LIABILITY ACT 1961 PART IV

KELLY v IRELAND & AG 1986 ILRM 318

BREATHNACH v IRELAND 1989 IR 489

TAYLOR v SMYTH & ORS 1991 1 IR 142

CIVIL LIABILITY ACT 1961 S11(2)(A)

REDDY v BATES 1983 IR 141 1984 ILRM 197 1983/12/3454

IMMIGRATION

Deportation

Judicial review - Non-refoulement - Carltona principle - Whether Minister must personally consider issue of non-refoulement - Approach to be taken in considering issue of non-refoulement - Tang v Minister for Justice [1996] 2 ILRM 46 and Devanney v Shields [1998] 1 IR 230 applied - T(LA) v the Minister for Justice and Equality [2011] IEHC 404, (Unrep, Hogan J, 2/11/2011); McNamara v An Bord Pleanála [1995] 2 ILRM 125; Carltona Ltd v. Comrs of Works [1943] 2 All ER 560; Reg v Home Secretary, Ex p Oladehinde [1991] 1 AC 254; L(F) v. Minister for Justice and Equality [2012] IEHC 189, (Unrep, Hogan J, 10/5/2012) and O(PU) v Minister for Justice and Equality [2012] IEHC 458, (Unrep, McDermott J, 6/11/2012) approved - Afolabi v Minister for Justice and Equality [2012] IEHC 192, (Unrep, Cooke J, 17/5/2012) considered - Meadows v. Minister for Justice [2010] IESC 3, [2010] 2 IR 701 distinguished - Aliens Act 1935 (No 14) - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Criminal Justice (United Nations Convention against Torture) Act 2000 (No 11), s 4 - European Convention on Human Rights 1950, art 8 - Constitution of Ireland 1937, Article 28.4 - Certiorari refused (2011/1007 JR - McDermott J - 10/09/2013) [2013] IEHC 422

A(AA) v- Minister for Justice and Equality

Facts: The husband of the plaintiff was killed in a shooting incident in 1999. The plaintiff, as his widow, brought proceedings as did the dependents of the deceased pursuant to the Civil Liability Act 1961. She claimed loss of financial support as a result of his death. The first, second and fourth defendants had been charged and convicted of the murder of the deceased. The plaintiff claimed to have suffered nervous shock as a result of the death of the deceased and its circumstances. The question arose as to whether the defendants were estopped from claiming defences arising from the nature of the conspiracy conducted by them.

Held by Irvine J. that each of the defendants were jointly and severally liable to the plaintiff for all of the legally recoverable losses arising from the death of the plaintiff's husband. The Court would award the plaintiff a sum of Eur 550,000 in respect of her dependency claim and allow the dependency claim of he daughter also. The plaintiff had proven the claim for special damages sought. The plaintiff had suffered nervous shock as a result of the events surrounding the death of her husband. She could not be compensated for any of her medical conditions. The Court would award general damages for nervous shock in the amount of Eur 150,000.

Ms. Justice Irvine

1 The within proceedings arise out of the death of the late Terence Madden ("the deceased") a highly respected member of the Sligo community, who was ruthlessly and gratuitously gunned down outside his home in Monasteraden, Co. Sligo, as he stepped into his car at about 7.50am on 28^th January, 1999. He was shot twice and died almost immediately as a result of massive blood loss. The fatal shots were fired by the second named defendant.

2 The plaintiff, being the widow of the deceased, brings these proceedings pursuant to Part IV of the Civil Liability Act1961 on her own behalf and also on behalf of all of the statutory dependents of the deceased. The deceased was survived by three brothers and one sister. He also left surviving him his wife Margaret, his two daughters, Denise and Clare and his son, Alan.

3 The plaintiff's claim for damages pursuant to the Civil Liability Act is pursued on the grounds that the death of her late husband arose directly as a result of his assault and battery by each of the defendants and that as a result of his death, she has lost significant financial support that she would otherwise have enjoyed had he not been killed. She further claims that the aforementioned loss of financial support has arisen as a result of the actionable conspiracy on the part of all of the defendants to cause him the severe personal injuries which ultimately led to his brutal death. Allied to her financial dependency claim is the claim brought on behalf of herself and all of the other statutory dependents relating to the grief and upset experienced by them as a result of the death and which is commonly referred to as the solatium claim. Finally, in addition to the aforementioned statutory claims, the plaintiff claims damages in respect of nervous shock allegedly sustained by her as a result of the events which she witnessed in and around the time of the deceased's death.

4 The first, third and fourth named defendants, with the benefit of legal representation, filed full defences to the plaintiff's claim. However, only the first named defendant appeared in person at the trial of these proceedings. Judgment in default of appearance was obtained against the second named defendant on 16^th December, 2002. The third named defendant died on 12^th June, 2010 and by order of the court made on 18^th October, 2010, his sons, Thomas Derrig Jr. and Jonathon Derrig, were appointed administrators ad litem to represent the interests of his estate. The fourth named defendant chose not to appear at the hearing of the action and the court is satisfied, from correspondence received from his former solicitor, that he is aware of the proceedings but has chosen not to attend.

5 Notwithstanding the failure on the part of the defendants to appear and contest the evidence adduced by the plaintiff in support of her claim, having regard to the defences filed by the first, third and fourth named defendants who appeared without the benefit of legal representation, the onus of proof remains upon the plaintiff to establish as a matter of law and by way of evidence, her entitlement to the relief sought.

6 In the course of the proceedings, the court heard evidence that the first, second and fourth named defendants were charged and convicted of the murder of the deceased. They were also charged and convicted of intentionally or recklessly causing him serious harm. In addition, the fourth named defendant was charged and convicted of possession of a sawn-off shotgun with the intention of enabling another person endanger life and the third named defendant was charged with a number of offences in relation to the sawn-off shotgun used by the second named defendant in the course of the murder. The trials of the first, second and fourth named defendants took place before the Special Criminal Court in July 2000 and the judgment of that court was delivered by Morris J. on 26^th July, 2000. The third named defendant pleaded guilty to a number of firearms offences and in respect of which he received a three year suspended sentence from a differently constituted court on the 10^th July 2000.

7 The judgment of Morris J. dated 26^th July, 2000 fully set forth the courts conclusions in relation to the evidence and submissions of the parties in the course of the trial of the first, second and fourth named defendants. The court expressed itself satisfied on the evidence that the shots that killed the deceased were fired by the second named defendant, Mr. Herron. The judgment records that the evidence against the first named defendant consisted of a number of statements made by him to An Garda Síochána, the content whereof he did not dispute in the course of the trial. In those statements, the first named defendant described how, because of some type of behaviour on the part of the deceased in relation to his own father which he considered improper, he arranged for him to be assaulted by the second named defendant. He admitted to having approached the fourth named defendant, Mr. McGrath, to ask him if he knew anybody that would carry out the horrendous assault that he wished to have perpetrated upon the deceased and that some weeks later he was introduced to the second named defendant whom he agreed to pay £1,500 to carry out the assault. In one of his statements he said that he told the second named defendant that he wanted the deceased hospitalised for a couple of weeks and his arms and legs broken.

8 Based upon the aforementioned statements, the court concluded that the first named defendant intended and expected the second named defendant to inflict appalling injuries on the deceased and went on in its judgment to conclude that the first named defendant had been involved in a joint enterprise to cause the deceased the serious injuries from which he ultimately died. It expressed itself satisfied that there was ample evidence upon which to determine that the first, second and fourth named defendants were the participants in a common design intended to cause serious injury to the deceased and that this constituted sufficientmens rea to establish murder.

9 In the present proceedings, the court also heard evidence from Detective Caplice as to statements made by the third named defendant during the investigation into Mr. Madden's murder. In the course of interview the third named defendant, Mr. Derrig, admitted to supplying the fourth named defendant with a shotgun and ammunition and to sawing off the barrel of the gun at his request. He admitted receiving £40 for the gun and also to the fact that he knew it was the gun that had been used to shoot Mr. Madden. He further told Detective Caplice that he had buried the barrel of the shotgun on his lands in the hope that...