State (Keegan & Lysaght) v Stardust Victims Compensation Tribunal

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1987
• Date: 01 January 1987
• Docket Number: [1986 No. 271 SS]

The State (Keegan) v. Stardust Compensation Tribunal

The State (at the Prosecution of John Keegan and Eoin J. Lysaght)

and

The Stardust Victims' Compensation Tribunal

[1986 No. 271 SS]

High Court

Supreme Court

Certiorari - Tribunal established to award compensation to victims of fire - Claimant and his wife seeking compensation for nervous shock - Both claims arising out of similar circumstances - Tribunal awarding compensation to wife but not to claimant - Whether decision unreasonable or irrational - Test to be applied.

Prohibition - Difficulties experienced by legal advisor in advising clients and obtaining medical reports - Order sought to prevent Tribunal hearing claims - Whether proper ground for issuing prohibition.

The respondent Tribunal was established by virtue of a scheme set up by the Government to award ex gratia compensation in respect of personal injury and loss attributable to a fire at the Stardust dancehall in Artane, County Dublin in 1981. The first prosecutor and his wife submitted claims to the Tribunal in respect of the deaths of two of their daughters in the fire (as dependants of those two people) and separate claims on their own behalf for damages for nervous shock suffered by them as a result of the deaths of their daughters and the serious injuries sustained by a third daughter in the fire. Neither the prosecutor nor his wife suffered any physical injuries in the fire. At the hearing of the claims it was agreed between the parties and accepted by the Tribunal that the nervous shock claims should be adjudicated upon in accordance with the principles enunciated by the House of Lords in McLoughlin v. O'Brian[1983] 1 A.C. 410.

The first prosecutor's wife was awarded £50,000 by the Tribunal as compensation for nervous shock but the Tribunal refused to award the first prosecutor any such compensation and further refused to award him his costs of legal representation. The prosecutors obtained a conditional order of certiorari in the High Court quashing the decision of the Tribunal to refuse the first prosecutor compensation for nervous shock and his legal costs and also a conditional order of prohibition restraining the Tribunal from proceeding to deal with further claims being handled by the second prosecutor (the first prosecutor's solicitor) on the ground that as a result of the instant decision of the Tribunal he was having difficulty in advising his clients and obtaining medical reports.

On the prosecutors' motion to make the conditional orders absolute notwithstanding cause shown it was argued on their behalf that the refusal by the Tribunal to award the first prosecutor compensation for nervous shock was wrong to the point of being arbitrary and capricious; that the first prosecutor was a victim as defined by the scheme, and as such as entitled to have his claim assessed; that even if his claim was rejected, under the terms of the scheme he should be entitled to his costs and, finally, on the basis of the uncontradicted medical reports before the Tribunal, its decision clearly lacked fairness.

Held by Blayney J., in allowing the cause shown and discharging the conditional orders, 1, that if the Tribunal had erred in refusing the first prosecutor compensation for nervous shock, it had erred within its jurisdiction and, thus, its decision could not be quashed.

Dicta of Lord O'Brien L.C.J. in The King (Martin) v. Mahony [1910] 2 I.R. 695 at p. 707 and of Henchy J. in The State (Abenglen Properties) v. Corporation of Dublin[1984] I.R. 381 at pp. 399-400 applied.

2. That without deciding whether the refusal of compensation by the Tribunal, if characterised as arbitrary or capricious, would amount to an excess or want of jurisdiction, its decision was not arbitrary or capricious and neither did it attract the application of the principles of unfairness of procedures stated by the Supreme Court in The Slate (Healy) v. Donoghue[1976] I.R. 325.

3. That the first prosecutor could only be a victim within the meaning of the scheme if he had sustained injury or loss and the Tribunal had held that he had not and, furthermore, it was clear from clause 2 of the scheme that the Tribunal was not obliged to make an award in every case that came before it.

4. That the Tribunal's refusal to award the first prosecutor costs could not be impugned since under the scheme it was only in the event of an award being made and accepted that the State was obliged to pay costs, and even if the Tribunal had a discretion to award costs in any event, the exercise of such discretion against the prosecutor here could not be criticised.

5. That the second prosecutor's difficulty in advising his clients and obtaining medical reports was not a ground for issuing an order of prohibition which only lay to a tribunal where it was purporting to usurp a jurisdiction with which it was not legally vested.

Statement in Short and Mellor on Crown Practice at p. 252 applied.

On appeal by the prosecutors in relation to the Tribunal's refusal to award the first prosecutor compensation for nervous shock, it was

Held by the Supreme Court (Finlay C.J., Hamilton P., Henchy, Griffin and Hederman JJ.), in disallowing the appeal, 1, that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223considered. Dicta of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service[1985] A.C. 374 at p. 410 disapproved.

2. That on the evidence available of the proceedings before the Tribunal, it could not be said that its refusal to award compensation to the first prosecutor for nervous shock was unreasonable or irrational.

McLoughlin v. O'Brian [1983] 1 A.C. 410 and Chief Constable of the North Wales Policev. Evans[1982] 1 W.L.R. 1155 considered.

Per Finlay C.J. Even if after due debate the principles laid down in McLoughlin v.O'Brian[1983] 1 A.C. 410 or some of them were accepted as part of our law it would appear that grief even so extreme as to cause psychiatric disorder as distinct from nervous shock may not give rise to liability for damages.

Cases mentioned in this report:—

The State (Hayes) v. The Criminal Injuries Compensation Tribunal[1982] I.L.R.M. 210.

The King (Martin) v. Mahony [1910] 2 I.R. 695.

McLoughlin v. O'Brian [1983] 1 A.C. 410; [1982] 2 W.L.R. 982; [1982] 2 All E.R. 298; [1982] R.T.R. 209.

Brice v. Brown [1984] 1 All E.R. 997.

O'Dowd v. Secretary of State [1982] N.I. 210.

The State (Healy) v. Donoghue [1976] I.R. 325; (1975) 110 I.L.T.R. 9 (H.C.); (1976) 112 I.L.T.R. 37 (S.C.).

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381; [1982] I.L.R.M. 590.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[1948] 1 K.B. 223; [1947] 2 All E.R. 680.

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935; [1985] I.C.R. 14.

Reg. v. Criminal Injuries Board, Ex p. Thompstone [1984] 1 W.L.R. 1234; [1984] 3 All E.R. 572.

Reg. v. Criminal Injuries Board, Ex p. Crowe [1984] 1 W.L.R. 1234; [1984] 3 All E.R. 572.

The State (Irish Pharmaceutical Union) v. Employment Appeals Tribunal(Unreported, Supreme Court, 14th March, 1986).

Chief Constable of the North Wales Police v. Evans [1982] 1 W.L.R. 1155; [1982] 3 All E.R. 141.

McMahon v. Leahy [1984] I.R. 525; [1985] I.L.R.M. 423.

Certiorari and Prohibition.

On the 14th April, 1986, the prosecutors obtained in the High Court (MacKenzie J.) conditional orders of certiorari and prohibition quashing a decision of the respondent Tribunal refusing the first prosecutor compensation for nervous shock and the legal costs of his application to the Tribunal and prohibiting the Tribunal from hearing the cases set out in the schedule to the conditional order and due to be heard by it on the 24th and 25th April, 1986.

The facts have been summarised in the headnote and appear more fully (together with the relevant provisions of the Government scheme of compensation) in the judgments, infra.

The basis of the prosecutors' application for the order of prohibition appears principally from paragraph 18 of an affidavit sworn by the second prosecutor (the first prosecutor's solicitor) on the 12th April, 1986. That paragraph is as follows:—

"I say that a large number of the persons [the deponent was referring here to claimants before the Tribunal] comprising over one hundred and thirty persons in all, are not necessarily persons of substance and that, by reason of the decision of the Tribunal in the case of the first-named prosecutor herein, it is now necessary to advise all these persons that should they wish to pursue their claims that firstly, pending the final determination of the proceedings herein, it is impossible to properly advise them as to the probabilities of their recovering an award; secondly they will each have to be advised that should they bring proceedings and should the Tribunal decide that they have suffered neither injury or loss that not merely will they not receive an award but that they will not receive any costs in respect of their applications. Thirdly, it will have to be explained to them that should they wish to proceed with their applications it will be necessary for them to obtain appropriate medical reports arising from medical examinations, and that this will necessarily involve them in expense in obtaining such medical reports so that appropriate evidence can be put before the Tribunal."

That and other averments in that affidavit relating to the application for an order of prohibition were supplemented by an affidavit sworn by the second prosecutor on the 4th July, 1986. Cause was shown on behalf of the Tribunal to the conditional orders of certiorari and prohibition and by notice...