Savickis v Governor of Castlerea Prison

CourtCourt of Appeal (Ireland)
JudgeMr. Justice Gerard Hogan,Ms. Justice Irvine
Judgment Date27 October 2016
Neutral Citation[2016] IECA 310
Docket Number[C.A. No. 868 of 2014],Neutral Citation Number: [2016] IECA 310 Appeal Nos. 2014, No. 868
Date27 October 2016

[2016] IECA 310


Irvine J.

Irvine J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2016] IECA 310

Appeal Nos. 2014, No. 868

- AND -



Negligence – Assault – Breach of constitutional rights – Appellant seeking damages – Whether adverse jury findings were perverse and unsupported by evidence

Facts: The appellant, Mr Savickis, sued the respondents, the Governor of Castlerea Prison, the Minister for Justice and Equality, the Irish Prison Service, Ireland and the Attorney General, for assault, negligence and breach of constitutional rights arising from an altercation in Castlerea Prison. The jury rejected the majority of the appellant’s claims, but they did find that he had been assaulted and awarded him €4,500 in damages. The jury also found, however, that the appellant was 95% contributorily negligent and his award was thus reduced to €225. The appellant appealed to the Court of Appeal against the findings of the High Court (Dunne J and the jury) delivered in May 2013. The appellant contended that the adverse jury findings were essentially perverse and unsupported by the evidence. The appellant further contended that the findings of contributory negligence had no basis in law and even the gross monetary award was far too low. For its part, the State respondents maintained that the jury findings and the jury award were justified on the evidence and should not be disturbed.

Held by Hogan J that he would uphold the jury’s conclusion that the State authorities were entitled to use appropriate force against the appellant once he had refused to obey a lawful direction from the prison officer to go outside. Hogan J held that the jury’s conclusion that excessive force was used in the circumstances must be understood as amounting to a finding that the appellant was unlawfully struck three or four times by a prison officer while he was subject to a C & R restraint; this finding was clearly supported by both CCTV evidence and the relevant medical evidence. Hogan J held that the jury’s award of a gross figure of €4,450 damages in respect of the assault was manifestly inadequate; he would substitute an award of €10,000 in place of the jury’s award. Hogan J held that while it was clear that the principles of contributory negligence provided for in s. 34(1) of the Civil Liability Act 1961 can apply to an intentional tort such as assault, there was no basis at all for the jury’s finding that there had been contributory negligence on the part of the appellant so far as the assault was concerned. Hogan J would accordingly set aside that finding of contributory negligence in its entirety. Hogan J held that while the jury found that this was not a case which called for the award of exemplary damages so far as the assault was concerned, this conclusion could not be sustained as a matter of law; this was rather a case which in the light of the principles articulated by the Supreme Court in Conway v Irish National Teachers Organisation [1991] 2 IR 305 calls for the award of exemplary damages for breach of constitutional rights. Hogan J therefore awarded the plaintiff some €5,000 as exemplary damages in respect of the assault. Hogan J upheld the jury’s finding that the staff had received inadequate training in the application of the C & R techniques. Hogan J interpreted that finding as a finding that while the use of the C & R techniques was appropriate those techniques had been applied in a negligent fashion. Hogan J held that the jury’s award of damages in respect of the negligent use of the C & R techniques could not be disturbed. He reduced that gross award by some 50% in view of the contributory negligence of the appellant, since it was his refusal to obey a lawful direction from the prison officer which was the proximate cause of the application of the C & R techniques in the first place. Hogan J held that the jury’s finding of 95% contributory negligence was disproportionate and could not be sustained. Hogan J accordingly substituted a figure of 50% contributory negligence in respect of the negligence award, so that the gross sum of €4,450 should be reduced to a sum of €2,225. Hogan J upheld the findings made by the jury, having regard to the special circumstances of the case, that the transfer of the prisoner from one cell to another while entirely naked was appropriate and justified; there was sufficient evidence upon which the jury could have made these findings and, in those circumstances, Hogan J held that the Court could not interfere.

Hogan J held that he would allow the appeal to the extent indicated in his judgment and would accordingly award the appellant the total sum of €17,225 in damages.

Appeal allowed.

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of October2016

I have read in draft the judgment which my colleague, Hogan J., intends to deliver in relation to this appeal. Having done so, I fully endorse the conclusions which he has reached and the orders which he proposes. This brief judgment is intended solely to address Mr. Savickis's appeal concerning the answer of the jury to question 3(C) on the issue paper.


It follows from my agreement with the conclusions of Hogan J. that I too would propose:-

(i) An award of damages in favour of Mr. Savickis in the sum of €10,000 with no reduction for contributory negligence for the reasons advised by Hogan J. in the course of his judgment regarding the jury's answer to Question 2.

(ii) An award of €5,000 for exemplary damages for breach of constitutional rights in respect of the assault.

(iii) An award of damages of €4,500 in respect of negligence in respect of Question 3(B) subject to a discount of 50% in respect of contributory negligence for the reasons advised by Hogan J.

General observations

Mr. Savickis decided to invoke his rights pursuant to s. 94 of the Courts of Justice Act 1924 to set down his action for damages for assault and his other causes of action arising out of the same facts for hearing before a judge sitting with a jury. As a result, following a hearing that lasted six days, the jury gave their answers to the questions put to them for their determination.


It goes without saying that in such circumstances the jury had the opportunity to carefully assess the presentation of the evidence by both parties and the credibility of each witness. Further, for the purposes of arriving at their conclusions, the members of the jury had the opportunity of discussing the significance of that evidence with each other and also had the benefit of guidance from the trial judge as to how they should approach the issues for their determination.


The value to the decision maker of seeing witnesses give their evidence viva voce cannot be overstated, particularly when facts are disputed and where two differing accounts of a particular event are advanced by the parties, as in the present case in relation to whether or not Mr. Savickis was given a poncho to wear before he was moved to another cell on a different floor of the prison. The credibility of a witness may often be undermined by the manner in which they give their evidence or indeed their conduct observable in the courtroom while not giving evidence. When under examination or cross examination, they may leave long gaps before answering certain questions. They may blush, stammer or fidget. There are a thousand ways in which a witness, by the manner in which they give their evidence or by their demeanour, may assist a jury in deciding upon the truth or otherwise of particular evidence. Further, the jury in the present case had six days to discuss and mull over the evidence crucial to their decision as to which party had more likely given the accurate account of what had occurred in the padded cell into which Mr. Savickis had been put before his later transfer to a different cell.


By way of complete contrast to the manner in which a jury will determine an issue, an appellate court acts in a somewhat sterile environment. It has no opportunity of hearing or assessing witnesses. It often must make its decision based upon a transcript of the original hearing. Regrettably in this case the Court does not even have the benefit of a professional transcript. It has no more than a detailed note upon which to make its decision. Further, the conduct or mannerisms of witnesses are not captured by a transcript or a note of the evidence. While this court had the benefit of some CCTV footage which clearly captured the not insignificant assault perpetrated upon Mr. Savickis, the remainder of the CCTV footage is of no assistance to the issue that fell to be determined by the jury when faced with Question 3(C). There was no coverage of what had transpired before the prisoner was taken naked from the padded cell onto the corridor.


The last general observation which I would wish to make concerns the jurisdiction and role of the appellate court which is completely different to that of a judge or a jury hearing a case at first instance. Its role is not to consider all of the evidence presented on the appeal afresh and reach its own conclusion as to how it would have answered the questions which were put to the jury. As Denham J. stated in O'Connor v. Bus Atha Cliath [2003] 4 I.R. 459, ‘it is quintessentially a matter for a jury (or a trial judge acting in place of a jury) to hear and determine the credibility and reliability of that person and to determine the consequent facts of the case. It is only in exceptional circumstances that an appellate court would intervene in such a determination.’ Accordingly, the role of this court when considering Mr Savickis's appeal from the answer of the jury to...

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3 cases
  • Savickis v Governor of Castlerea Prison
    • Ireland
    • Court of Appeal (Ireland)
    • 7 December 2016
    ...of events which had occurred on 29th September 2009 when he was a prisoner in Castlerea Prison. On appeal before the Court of Appeal ([2016] IECA 310) the aforementioned damages were set aside in favour of the following: (a) an award of €10,000 damages in respect of assault; (b) an award of......
  • G.E. v Commissioner of an Garda Síochána
    • Ireland
    • Supreme Court
    • 2 December 2022
    ...liability not involving negligence. But for all the reasons which I gave in my judgment for the Court of Appeal in Savickis v. Governor of Castlerea Prison (No.1) [2016] IECA 310, [2016] 3 IR 268 at 281–284, I consider that the express language of s. 2 (defining a “wrong”) and s. 34 (deal......
  • McGee v The Governor of Portlaoise Prison and Others
    • Ireland
    • Supreme Court
    • 25 May 2023
    ...of €17,225, including exemplary damages for breach of constitutional rights: see Savickis v. Governor of Castlerea Prison and ors (No.1) [2016] IECA 310, [2016] 3 I.R. 268. The second judgment, however, is concerned with the appropriate costs order. Section 17 of the Courts Act, 1981, as am......

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