State (Sheehan) v The Government of Ireland

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,Henchy J.,GRIFFIN J.,McCarthy J
• Judgment Date: 01 January 1988
• Neutral Citation: 1987 WJSC-SC 2221
• Court: Supreme Court
• Docket Number: [1986 No. 305 SS]
• Date: 01 January 1988

SHEEHAN v. IRELAND

THE STATE (SHEEHAN)

v.

THE GOVERNMENT OF IRELAND

1987 WJSC-SC 2221

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

274/86

THE SUPREME COURT

1 JUDGMENT delivered on the 18th day of December 1987by FINLAY C.J. [GRIFFIN & HEDERMAN Age]

2 I have read the judgment which is about to be delivered by Henchy J. in this case and I am in complete agreement with it.

3 I would like, however, to point out that certain issues which might conceivably be thought to have arisen in this case were neither raised nor argued in this Court. They are the issues

4 (a) as to whether having regard to the separation of powers provided for in the Constitution the Courts may by Order direct the introduction into effect of legislation which the Oireachtas has provided should be introduced by an Order made by the Government or by a Minister of the Government, and

5 (b) whether the Courts may make such an Order in theparticular case where the introduction of such legislation might impose a significant burden on the Exchequer.

6 These issues may fall to be decided in some future case where they have been fully argued and I expressly reserve my view on them unless and until that occurs.

7 Judgment of Henchy J.delivered the 18th December 1987 [GRIFFIN & HEDERMAN Age]

8 The prosecutor in these mandamus proceedings fell and broke his leg when walking on a footpath in Cork City in 1983. He sued Cork Corporation in 1985 for damages in Cork Circuit Court for the personal injuries he suffered in the fall. Apparently anticipating that his claim would be defeated by the defence of nonfeasance, he applied in the High Court (under the 1962 Rules of the Superior Courts) in 1986 for an order of mandamus directed to the Government of Ireland to make an order under s. 60(7) of the Civil Liability Act, 1961, bringing into operation s. 60.

9 The effect of an order by the Government bringing s. 60into operation would be that from the date of the coming into operation of the section (see subs. 6) a road authority could no longer successfully plead nonfeasance. S. 60(1) makes clear that a road authority was to be made liable for "damage caused as a result of their failure to maintain adequately a public road". Had the section been brought into operation before the prosecutor met with his accident, it would have the effect of eliminating the defence of nonfeasance and have made Cork Corporation liable if they had merely failed to maintain the footpath adequately. However, since the section is expressed to apply only to damage suffered after it comes into operation, and since it has never been brought into operation, mandamus could not avail the prosecutor anything in this claim against Cork Corporation. He was therefore lacking in that special interest in the outcome of the mandamus proceedings.

10 Nevertheless, the prosecutor was allowed to be heard and got an absolute order of mandamus in theHigh Court on the 29 July 1986 requiring the Government to make, within six months from that date, an order under s. 60(7) bringing the section into operation. The Government now appeal against that decision.

11 Counsel for the Government founds the appeal on two grounds:

12 1) that the prosecutor lacks the required standing to get an order of mandamus and 2) that s. 60(7) does not impose any duty on the Government to bring the section into operation and that mandamus does not for that reason lie.

13 I am prepared to concede, for the purpose of resolving the main point in the case, namely the interpretation of s. 60(7), that the prosecutor has the necessary locus standi to apply for an order of mandamus. Accordingly I regard the case as essentially depending on the interpretation of s. 60(7).

14 s. 60(7) is in the following terms:

15 "This section shall come into operation on such day, not earlier than the 1st day ofApril, 1967, as may be fixed therefor by order made by theGovernment".

16 S. 60 stands in isolation in the Act as a whole, which was enacted and came into operation on the 17 August 1961. It is only s. 60 that requires to be brought into operation by the Government, and no such order has been made.

17 The essence of the prosecutor's case is that the discretion given to the Government by s. 60(7) required to be exercised reasonably, that is to say within a reasonably time after the 1st April 1967, and that the default on the part of the Government leaves them open to mandamus. On the other hand, the case for the Government is that s. 60(7) merely allows them to bring the section into operation whenever they choose, so long as it is after the 1st April 1967.

18 I am satisfied that s. 60(7) is merely enabling. The uses of "shall" and "may", both in the subsection and in the section as a whole, point to the conclusion thatthe radical law-reform embodied in the section was intended not to come into effect before the 1st April 1967 and thereafter only on such day as may be fixed by an order made by the Government. Not, be it noted, on such date as shall be fixed by the Government. Limiting words such as "as soon as may be" or "as soon as convenient", which are to be found in comparable statutory provisions, are markedly absent. If the true reading of s. 60(7) were to the effect that the Government were bound to bring the section into operation, it would of course be unconstitutional for the Government to achieve by their prolonged inactivity the virtual repeal of thesection.

19 In my opinion, however, s. 60(7), by vesting the power of bringing the section into operation in the Government rather than in a particular Minister, and the wording used, connoting an enabling rather than a mandatory power or discretion, would seem to point to the parliamentary recognition of the fact that the important law reform to be effected by the section was notto take effect unless and until the...