McIntyre v Lewis

• Jurisdiction: Ireland
• Judge: McCarthy J.,HEDERMAN J.
• Judgment Date: 01 January 1991
• Neutral Citation: [1990] IESC 5
• Court: Supreme Court
• Docket Number: (207/214-89),[1986 No. 694 P]
• Date: 01 January 1991

MCINTYRE v. LEWIS

BETWEEN:

WILLIAM McINTYRE

Plaintiff/Respondent

and

MICHAEL LEWIS. GERARD P. DOLAN, IRELAND AND THE ATTORNEYGENERAL

Defendants/Appellants

[1990] IESC 5

Hederman J.

McCarthy J.

O'Flaherty J.

(207/214-89)

THE SUPREME COURT

Synopsis:

DAMAGES

Assessment

Gardai - Assault - False imprisonment - Malicious prosecution - Proofs - Exemplary damages - Quantum - Pleadings - Judge's charge to the jury - Vicarious liability of the State - Civil Liability Act, 1961, s. 14 - (207, 214/89 - Supreme Court - 17/12/90)

|McIntyre v. Lewis|

EVIDENCE

Malicious prosecution

Proofs - Prosecution - Reasonable cause - Absence - Damages - Exemplary damages - Gardai - Fabrication of evidence - (207, 214/89 - Supreme Court - 17/12/90) - [1991] 1 I.R. 121 1991 ILT 147

|McIntyre v. Lewis|

MALICIOUS PROSECUTION

Damages

Quantum - Exemplary damages - Proofs - Prosecution - Reasonable cause - Absence - Gardai - Fabrication of evidence - (207, 214/89 - Supreme Court - 17/12/90) - [1991] 1 I.R. 121 - [1991] I.L.T. 147

|McIntyre v. Lewis|

Citations:

CIVIL LIABILITY ACT 1961 S14(4)

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 678

OFFENCES AGAINST THE PERSON ACT 1861

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 756

MCMAHON & BINCHY IRISH LAW OF TORTS 2ED 777

CIVIL LIABILITY ACT 1961 S2

CIVIL LIABILITY ACT 1961 S11

CIVIL LIABILITY ACT 1961 S14(5)

CIVIL LIABILITY ACT 1961 S7(2)

WORTHINGTON V TIPPERARY CO COUNCIL 1920 2 IR 233

DILLON V DUNNES STORE UNREP SUPREME 20.12.68 MCMAHON & BINCHY CASEBOOKON TORTS 126

SALMOND & HEUSTON LAW OF TORTS 19ED 594

ROOKES V BARNARD 1964 AC 1129

1 JUDGMENT delivered on the 17th day of December 1990by HEDERMAN J.

2 This is an appeal from the order and judgment of the High Court (Mr. Justice Gannon with a jury) whereby after a trial lasting five days the jury awarded the plaintiff/respondent damages for assault and false imprisonment as well as damages for malicious prosecution against the first two defendants/appellants (members of the garda siochana). For these torts the State was found vicariously liable.

3 The jury awarded the plaintiff £5,000 damages for the assault and false imprisonment and a total of £61,787.50 damages in respect of the malicious prosecution.

4 The plaintiff gave evidence that he was a single man; a long distance lorry driver by occupation and that he was a native of Banagher, Co. Offaly but had lived in Dublin since 1964. He would return to his native county from time to time to visit members of his family. He was an active supporter of a particular political grouping and, from time to time, had been interviewed by members of the garda siochana when they were investigating subversive activities. On the 16th September, 1983, he was in the town of Birr in connection with a surprise birthday party for his mother.

5 He told of visiting a bar in the Main Street in Birr and having a conversation with two young men, Mr. Shortt and Mr. Gleeson. Afterwards they went outside and one mentioned that he was going to visit a brother in Long Kesh (a prison in Northern Ireland) and the plaintiff told thathe noticed an unmarked garda car across the street and said: "better not to talk about anything like that, move along". With that the two gardai, Lewis and Dolan cameover and Garda Lewis gripped him by the right arm and brought it up behind his back and walked on his instep. Garda Lewis, according to the plaintiff, asked him what he was doing there and what had he said to the other two men about the garda presence on the far side of the street. The plaintiff replied: "I just said the guards were on the side of the street, it is best to move along". Garda Lewis said: "Go on, you said more than that". Then Garda Dolan joined in the conversation and said: "What the hell do you work at anyway" and when the plaintiff replied that he was a truck driver he started to laugh about it and assaulted him. The plaintiff said that Garda Dolan drew his truncheon and "stabbed" him in the left kidney and knocked him over and after doing that he said to Garda Lewis: "Michael, he did assault you didn't he?". And the reply to that was: "That's right, Gerry".With that he drew his truncheon again and "stabbed" him in the kidneys three or four times. The plaintiff went on to describe how he was hit by the truncheon right across the two eyes and that the garda appeared to go frantic at that stage and gave it to him everywhere he could, on the back, down on the left hand and that he received a blow on the muscles of the arm and felt his fingers go numb. With that Garda Dolan started to hit him on the back of the head, the back of the shoulder and started to drag him across the street; the plaintiff said that he was willing to go peacefully at all times but it appeared that the gardai did not want him to go peacefully and seemed as if they wanted him to fight with them which the plaintiff said he neverdid.

6 The plaintiff went on to relate that he was forced to get into the back of the garda car where he was again assaulted with a baton by GardaDolan.

7 He was brought to the local garda station and as he was going up the steps into the building he was assaulted again by Garda Dolan who hit him with hisbaton on the back of the neck and the plaintiff felt that he was stunned. He met Garda Donovan whom he had known in the past in the station and appealed to him for help. Garda Donovan told him to calm down. The plaintiff said: "These guards are after assaulting me, beating me up" to which Garda Donovan is said to have replied: "now calm down".

8 He said that he was asked to empty his pockets and as he was doing this he looked at the clock and noticed that it was 2 minutes past 12.

9 The plaintiff further said he was not allowed to make a telephone call or call a doctor. He gave evidence that Garda Lewis deliberately pulled the sleeve out of his own coat and said: "Look what you have done to my coat". When it came to half past twelve Garda Dolan said to Garda Donovan that he might make one phone call and so he rang his sister Gemma, who lived locally; indeed opposite the bar out of which the plaintiff had come when the incident began.

10 As a result he was visited by his brother-in-law,Mr. Noel Ely. Shortly afterwards he was brought into a room and told that he was going to be charged with assault and was given a document to sign which was a bail bond. When asked if he had any complaint to make (by Garda Dolan and Garda Lewis) he said he would not make any complaints to them and that any complaints he would make would be in front of a judge.

11 He went to his sister's home with his brother-in-law and they both saw his condition. He was also seen by a local doctor who, however, did not give evidence at the trial.

12 Some days later he returned to Dublin where he contacted his solicitor, Mr. Dudley Potter and was examined by a Dr. Maharaj in Raheny. He said his eyes were troubling him at that stage that they felt sore and he remained out of work for a fortnight. Thereafter, he appeared in the District Court in Birr and was sentforward for trial to Tullamore Circuit Court. Thereafter he applied for a transfer of his trial to the Dublin Circuit where his trial took place on the 16th January 1985. The only charge against him was one of assaulting Garda Lewis in the due execution of his duty.

13 The evidence led for the prosectuion was that of Garda Lewis who said that the plaintiff had assaulted him and had tried to push him through a window and that Garda Dolan had to draw his truncheon to break the plaintiff's grip. Garda Dolan corroborated that account. It appears that no other evidence was called for the prosecution. The plaintiff then gave evidence and called witnesses on his behalf and was acquitted by the jury.

14 The course of the evidence in the High Court was in similar vein. The plaintiff's case was, put simply, that he was brutally assaulted in an unprovoked way. The garda evidence was that he provoked the assault and had caused the damage to the garda's clothing. The plaintiff also gave evidence of aletter that he had written to the Minister for Justice on the 21st September, 1983, complaining of the assault and verbal abuse that he had received at the hands of to two gardai; on the same date he wrote a letter in similar terms to the Superintendent of the Garda Siochana at Birr. He got a formal acknowledgment from the Department of Justice and Superintendent Owens, the local Superintendent, approached him on his initial appearance in court to find out if he wished to make a complaint but he said that he would reserve that possibility until after the court case was over when he said if the Superintendent was interested in receiving a complaint from him he should see him then.

15 The plaintiff gave evidence concerning the effect that the assault had on him; he told of soreness and pain in the back of the eyes, soreness in the kidney area, lumps on the back of his head, intermittent pains, lack of sleep and nightmares. In relation to the bringing of the charge against him, on which he had been acquitted, he said that he had been "fearing" for along time ever since he brought his own proceedings and that he was approached on many occasions by members of the Special Branch who had referred to the case and that he felt worried for his own safety.

16 It will be obvious that the kernel of the case, the decisive matter to be resolved by the jury, was which party was telling the truth.

17 That issue was, without any doubt, resolved in favour of theplaintiff.

18 In the course of his charge, the learned trial judge fully and extensively set out the ingredients of the torts alleged, assault, false imprisonment and malicious prosecution. However, through inadvertence, the judge did not give the juryany directions at all as to how they should assess damages. As a result of a requisition made to him by counsel for the plaintiff he did give them full directions on...