McKevitt v Ireland

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,GRIFFIN J.,McCarthy j.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 1151
• Court: Supreme Court
• Date: 01 January 1987

1986 WJSC-SC 1151

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy J.

119/85

MCKEVITT v. IRELAND & AG

BETWEEN

JOHN McKEVITT

Plaintiff/

Respondent

and

IRELAND AND THE ATTORNEY GENERAL

Defendants/

Appellants

Citations:

BRENNAN V MIN FINANCE 96 ILTR 54

GREALY V BANK OF NOV SCOTIA UNREP O'HIGGINS 11.04.75.

STEELE V BELFAST CORPORATION 1920 2 IR 125

Synopsis:

GARDA SIOCHANA

Suspect

Detention - Safety of suspect - Fire in cell - Suspect injured by fire - Suspect claiming damages for alleged negligence of gardai - ~See~ Negligence, Gardai - (119/85 - Supreme Court - 18/4/86) - [1987] ILRM 541

|McKevitt v. Ireland|

NEGLIGENCE

Gardai

Suspect - Detention - Safety of suspect - Fire in cell - Intoxicated suspect arrested, searched and locked in cell - Suspect's belt and a box of matches removed during search - Suspect injured by outbreak of fire in cell - Suspect's action for damages - Fire started deliberately by suspect, who stated that two boxes of matches were overlooked during search - Jury finding that gardai negligent and awarding substantial damages to plaintiff suspect - Defendant's appeal on all issues - General issue of negligence appearing on issue paper - No specific question directed to manner in which gardai negligent - Evidence established virtual impossibility of two match boxes being overlooked during search - Possibility that one or two individual matches could have been overlooked - Held that the trial had been unsatisfactory and that there should be a retrial on all issues - Held that award of damages was excessive and that apportionment of 85% fault to gardai had not been justified - (119/85 - Supreme Court - 18/4/86) - [1987] ILRM 541

|McKevitt v. Ireland|

1 JUDGMENT delivered on the 18th day of April 1986by FINLAY C.J. [Walsh J. Concurring]

2 This is an appeal by the Defendants against a judgment and order of the High Court, dated the 1st May 1985, which, pursuant to the verdict of a jury, awarded to the Plaintiff £161,500 as damages for negligence by the Defendants" servants or agents.

3 The action arose out of the following facts.

4 The Plaintiff was, on the 6th July 1980, found by members of the Garda Siochana drunk and incapable at Andrew Street in the City of Dublin at about 3 p.m. He was arrested and brought to Pearse Street Garda Stationwhere he was searched by members of the Garda Siochana for the admitted purpose of finding out whether he had anything in his possession with which, having regard to his drunken condition, he might damage himself or property in the ceil into which he was to be put. A dispute exists as to what exactly was taken off him as a result of that search, but it seems clear that at least his belt and a box of matches were taken from him. He was then put in a cell and locked on his own, the cell containing a door in which was a spy-hole only. The cell also contained, it was agreed, a mattress and the Plaintiff alleges that in addition it contained a pillow. At a time which was estimated by the Plaintiff to be some quarter of an hour or twenty minutes later, and by theDefendants" witnesses was fixed at practically two hours later, upon hearing shouting a member of the Garda Siochana went down to the cell and discovered that it was on fire. By the time the door had been opened and the Plaintiff taken out of it, he had received extensiveburning.

5 The Plaintiff's account of how the fire started wasthat he alleged that notwithstandinq what he conceded was a thorough search of his person carried out before he was put into the cell, that he was in fact left with two boxes of matches in one of his trouser pockets, that he discovered those after a relatively short time and being particularly anxious to get a cigarette, (his packet having been taken from him in the course of the search) he threatened by shouting to the guards that he would set the cell on fire unless they brought him a cigarette, that he then lit a pillow in the centre of the cell and that the fire spread rapidly all over the floor and up the walls, and this was the cause of the fire.

6 The Defendants" witnesses gave evidence that having regard to the nature of the search of the Plaintiff which was carried out before he was put in the cell, it would have been physically impossible for any box of matches, let alone for two boxes of matches, to be missed in that search. Furthermore, they denied that there was any threat or shouting by the Plaintiff of his intention toburn the cell, and stated that after two hours during which he appeared to be settling down in the cell and during which period he was inspected at regular intervals every quarter of an hour, that suddenly he was heard to be shouting and the cell was then found to be on fire and he was released as soon as was possible.

The grounds of appeal

7 The Defendants" appeal was both against the findings of liability and against the assessment of damages.

8 With regard to liability the Defendants firstly submitted that the learned trial Judge erred in law in refusing their application for a direction at the conclusion of the evidence for the Plaintiff; that there was no evidence of negligence agaisst the Defendants upon which a reasonable jury could act and that the finding of negligence against the Defendants was perverse.

9 Without prejudice to that submission the Defendants further submitted that if it was open to the jury to find the Defendants guilty of negligence, that the apportionment of fault made by them, imposing 85 per cent of the faultupon the Defendants and 15 per cent of the fault only upon the Plaintiff, was perverse and should be set aside as being unreasonable and not warranted by the evidence.

Appeal against damages

10 The verdict of the jury with regard to damages was as follows:

Loss of earnings to date	£42,000
Loss of earnings in the future	£80,000
Pain and suffering to date	£39,000
Pain and suffering in the future	£29,000

11 The Defendants appealed against each of these separate findings upon the following grounds:

12 (a) They submitted that the figure of £42,000 loss of earnings to date was unsupported by the evidence both in regard to the period in respect of which it obviously was assessed and to the amount per month or year during that period.

13 (b) With regard to the loss of earnings in the future thev submitted that on the evidence no question as toloss of earnings in the future should have been left to the jury and that there was no evidence to support any finding of loss of earnings in the future consequent upon the incident complained of.

14 (c) and (d) With regard to pain and suffering to date and in the future the Defendants submitted that the amounts were excessive to such an extent that they should be set aside by this Court.

Evidence of negligence

15 The Defendants concede that having arrested the Plaintiff in a drunken and incapable condition they owed him a duty when putting him under lock and key on his own in a cell to take reasonable care that he did not have in his possession objects with which, either by accident or design, he might injure himself. In fact witnesses for the Defence gave evidence that the regulations of the Garda Siochana inter alia required or suggested that persons who are in a drunken condition should be searched and such objects should be taken from them. TheDefendants submit that having regard to the clear agreement by the Plaintiff both in his direct evidence and in cross-examination that before being put into the cell he was thoroughly searched; having regard to the evidence of Guard Grogan, called by the Plaintiff as part of his case, that the Plaintiff was thoroughly searched; that there was no evidence of any breach of this standard of care which was fit to go to the jury at the conclusion of the Plaintiff's case. They argue that the Plaintiff's suggestion that after being thoroughly searched he found two boxes of matches in a trouser pocket which he used to set fire to objects in the cell, was not evidence which a jury could reasonably accept as being true, firstly, because it was inconsistent with the thorough search of which both the Plaintiff and the witness called by him gave evidence, and secondly, because the details of the commencement of the fire given by the Plaintiff in evidence and his concession as to the extent of his drunkenness at that time made his evidence not worthy of belief. In particular, they relied on the fact that thePlaintiff gave evidence that in threatening to set the cell on fire and calling for the attention of the guards that he put his head through the bars in the door and shouted down the corridor to members of the Garda Siochana. The uncontradicted evidence, supported by photographs, was that the cell in which the Plaintiff was kept and which went on fire had a sheeted metal door with a spyhole in the centre of it and no other apperture of any description.

16 The Plaintiff on this issue contends, firstly, that his evidence that he had been left with two boxes of matches on his person was evidence which the jury could accept, and that it must be left to them, and that an issue then arose which must be decided by the jury as between the Plaintiff and the Defendants" witnesses. Secondly, it was contended, in the alternative, that evidence of the fact of the fire was evidence on which the jury must conclude either that the Plaintiff had, notwithstanding a search, been left in possession of matches, or at least a match, or that a match or matches had negligently been left in the cell into which he wasplaced, and that in either event, having regard to the extent of his drunkenness, the Defendants could be guilty of negligence in permitting that situation. Lastly, it was contended on behalf of the Plaintiff that his evidence that before actually starting the fire he shouted to the guards a warning that he...