Shaughnessy v Nohilly

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IEHC 767
• Docket Number: [2013 No. 1397 P]
• Court: High Court
• Date: 21 December 2016

BETWEEN

DONNACHA SHAUGHNESSY

PLAINTIFF

AND

MARTIN NOHILLY

ALAN NOHILLY

DEFENDANTS

[2016] IEHC 767

[2013 No. 1397 P]

THE HIGH COURT

Tort – Damages and Restitution – Personal injuries – Contributory negligence – Civil Liability Act 1961 – Ex Turpi Causa Non Oritur Actio – Award of damages

Facts: The plaintiff sought damages against the defendants for causing personal injuries to the plaintiff arising out of an alleged battery. The defendants took the defence of ex turpi causa non oritur actio and contributory negligence.

Mr. Justice Bernard J. Barton awarded damages to the plaintiff for the injuries sustained and for the pain and suffering caused. The Court, however, held that there would be a reduction of 40% of the amount of award of damages to the plaintiff as the initiation of the affray was intentional and deliberate. The Court noted that the maxim ex turpi causa non oritur actio had to be seen in the light of s. 57 of the Civil Liability Act. The Court held that the maxim was limited to the cases where the conduct of the plaintiff was clearly against public policy and grossly egregious. The Court found that though the plaintiff started the affray intentionally, yet the infliction of injuries by a baton by the defendants was done with retribution, and at that time the plaintiff was about to leave and unarmed and thus, the defendants could not escape liability. The Court held that a total bar for recovery of damages based on the said maxim could not be granted in the present case as the aspect was well taken care of by way of contributory negligence.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 21st day of December, 2016.

1 This is an action brought by the Plaintiff against the Defendants in trespass to the person and in negligence for damages for personal injuries and loss arising as a result of an alleged assault and battery which occurred on the 15th October, 2010, at or about the Shambles, Tuam, Co. Galway.

2 A full Defence has been delivered to the Plaintiff's claim. That an incident took place on the date at or near the place in question is not in issue, however, the Defendants plead that it was they and a member of their family who were assaulted by the Plaintiff in response to which they acted in self defence and in defence of others using no more force than was reasonable. In addition, the Defendants seek to meet the claim on the grounds that the Plaintiff was guilty of negligence, including contributory negligence, and by way of defence founded on the maxim ExTurpi Causa Non Oritur Actio.

Background

3 Having considered all of the evidence I am quite satisfied that the ‘incident’, as it is described in the Defence, was an affray in which the Plaintiff, the Defendants and other individuals were involved. There was an almost complete conflict of evidence between the parties as to the circumstances as well as the reasons for and the causes of the affray, moreover, each side called into question the credibility and character of the other.

4 I had an opportunity to observe the demeanour of the parties as they gave their evidence. The accounts given by them of what, why, when and where the events in question happened were, perhaps understandably in some respects, self serving and partisan; for reasons which appear later in this judgment none of them impressed as witnesses upon whose evidence alone the Court could rely.

5 In these circumstances I consider it necessary to a full understanding of the matters in question that they are placed in context and that features of the principal events common to the parties at the centre of the proceedings should be identified.

Locus in quo

6 Circular Road bisects Vicar Street on the northwest side of which it proceeds in the shape of a horseshoe before rejoining Vicar Street. This horseshoe shaped part of Circular Road is known as the Shambles and is habitually used as a car park. A Google map of the Shambles and adjoining streets was admitted in evidence. Just outside a building in the Shambles which makes up the corner of the Circular Road where it rejoins Vicar Street is a single storey public toilet above and to the right of which, on the wall of the building, is a sign which reads ‘The Sportsman's Inn’. It was in the vicinity of this location and close to a restaurant also located in the Shambles, and then known as Lorenzo's, that the affray commenced.

7 There are a number of shop premises located in the corner building. The first of these, which faces onto Vicar Street, is “Aidan's Menswear” opposite to which is “The Spice of Life”. It was in this area, shortly after the affray had ended, that the Plaintiff was found by the police lying up against a wall and unable to stand. Approximately 100 to 150 metres to the north of the Shambles there is a junction between Vicar Street and the Dublin Road; a Supermac's restaurant occupies the northeast corner.

8 Traffic proceeding along Vicar Street turning right onto and continuing along the Dublin Road may in due course turn right onto Circular Road the eastern exit of which intersects with Vicar Street before going on to form the Shambles as previously described. This route was referred to in evidence as ‘going around the block’.

9 Tuam railway station (now disused) is located some distance down Vicar Street south of the Shambles. Shortly after 5.30 pm on the evening of the affray the Plaintiff and some friends went to a carnival which was being held on grounds adjacent to the old railway buildings. The group left the carnival around 9.30 pm and walked up Vicar Street to the vicinity of Supermac's. In the course of this journey an interaction of an abusive nature occurred between some members of the group and Prionsias McComiskey when a car driven by his then girlfriend Charlene Nohilly, in which he was a passenger, drove past. Prionsias McComiskey and some of the group were shortly afterwards to become involved in the affray. Whether the Plaintiff and other members of this group or Prionsias McComiskey initiated what developed into the affray is one of the questions in issue.

10 Finally, it was agreed between the parties that:

(i) the distance from the Defendants' home in Cummer to the “Shambles” is 9.5 km;

(ii) the road passes through an area known as the “Rusheens”, and,

(iii) the distance from the “Rusheens” to the “Shambles” is 6 km.

Dramatis Personae

The Defendants:

11 The first Defendant is a farmer and car dismantler who resides on a family farm at Cummer, Co. Galway. Himself, his wife, their daughter Charlene and their son Alan, the second Defendant, live in a farmhouse on the lands adjacent to which is another dwelling occupied by another son of the first Defendant, Martin Nohilly Junior. It was suggested in the course of the Trial that he too was present and participated in the affray but I am not satisfied on the evidence that this was so.

12 Both Defendants were charged with serious criminal offences arising from the affray. Their trial on those charges, which took place in early 2012, collapsed; a new trial, which has since been listed from time to time, has yet to take place.

13 The first Defendant was convicted of a criminal offence in 1999. He appealed and was given a suspended sentence. The second Defendant is also facing other criminal charges, unrelated to those arising from the affray, which he denies. Neither of the Defendants called the Gardaí for assistance at the time of the affray or reported it afterwards nor did either subsequently seek to have the Plaintiff held criminally or civilly responsible for the actions alleged against him in the Defence delivered in these proceedings.

The Plaintiff

14 The Plaintiff was born on 16th September, 1991, and resides at 11 Black Acre, Tuam, Co. Galway. This is the address of the family home where he resides with his parents. The medical notes and records discovered by the Plaintiff and introduced into evidence establish that he has a propensity to exhibit violent behaviour, particularly under the influence of alcohol; in this regard entries for 1st January, 2012, 21st June, 2014, and 24th February, 2015, refer. The Plaintiff accepted that he had on one occasion been placed on a juvenile liaison scheme and that he had also been the subject matter of a public order offence in early 2014.

15 In relation to his propensity to violence the Defendants called Darren Keogh as a witness. He gave evidence that on the 15th August 2016, he had been struck by the Plaintiff on the side of his head with a bottle as a result of which he sustained injuries including a laceration which had bled profusely.

16 As to that his evidence was that he had made a complaint to the Gardaí some two months prior to the trial in these proceedings. However, it transpired that the Plaintiff has never been approached by the Gardaí in connection the complaint. Moreover, and notwithstanding his injuries, he accepted that he had yet to attend a doctor in respect of those. Furthermore, it also transpired that he had been asked by the second Defendant, whom he knew, to give evidence on behalf of the Defence. His explanation for a conversation with the second Defendant about the Plaintiff and the alleged assault was less than convincing and having had an opportunity to observe his demeanour while he gave his evidence I am not at all satisfied that he is a reliable witness.

17 In the course of the Plaintiff's cross examination he was asked whether he knew an individual by the name of Newell and whether or not he had invited him to fight for money. The Plaintiff denied that he knew such a person and rejected the suggestion that he had issued an invitation to fight for money.

18 Mr. Newell was called as a witness on behalf of the Defendants. He gave evidence that following a hurling match on 22nd August, 2016, he had been spat at by the...