Court of Appeal awards 26-year-old man €17,500 for injuries sustained during arrest

About this case:

• Judgment:
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Mr Liam Buckley, 26, appealed against the order in which the jury found Mr Buckley guilty of contributory negligence to the extent of 69 per cent, and awarded him €5,231.25.

In the High Court, Mr Buckley made a claim for damages against Garda Eugene Mulligan, The Commissioner of An Garda Síochána, The Minister for Justice and Equality and Ireland and the Attorney General – alleging wrongful arrest, false imprisonment, assault and battery, and a further claim for damages for personal injuries sustained as a result of negligence during his 2011 arrest in Drogheda.

Mr Buckley was successful in his claim for negligence; but failed in his other claims.

The appeal

Mr Buckley’s grounds of appeal were:

On Mr Buckley’s behalf, it was submitted that “a gross award of €16,875 was not proportionate or just having regard to the severity of his client’s injuries”.

Mr Buckley had sustained an “un-displaced fracture of the malleolus and his left leg was in a cast for six weeks”, which then required some physiotherapy and remained somewhat symptomatic for a period of over two years.

In the Book of Quantum (2004), in respect of fractures to the lower leg which were substantially recovered, the parameters advised were €15,400 - €34,600. Counsel on behalf of Mr Buckley argued that those values were “significantly out of date and… approximately 50 per cent below what a judge sitting alone would be expected to award for the equivalent injury”.

Following Cronin v. Stevenson and Another IECA 186, “the parameters for an award for a fractured ankle at the time of the hearing ought properly to have been within the €25,125 - €52,950 range”.

Considering contributory negligence, Counsel for Mr Buckley accepted that there was evidence to support a finding of contributory negligence, principally by reason of his alcohol consumption.

As to the extent to which this contributed to his injuries, “counsel drew the Court’s attention to the fact that his client had been considered sufficiently sober to receive an adult caution thirty minutes after his arrival at the Garda station”. Given that Mr Buckley’s liability had to be assessed by reference to his blameworthiness for the injury sustained, “the jury’s finding should have been no more than 30 per cent - 50 per cent”.

Mr Buckley had no previous arrests and his injury was sustained as a result of the fact that, in the course of his arrest, he and Garda Mulligan had lost balance and fallen to the ground. Counsel accepted that “resistance to arrest would have been a contributory factor” but submitted that Garda Mulligan “also contributed to the fall insofar as he had lent in over Mr Buckley applying weight to him in the course of a turning manoeuvre”.

As to the extent of Mr Buckley’s resistance, Counsel relied upon his custody record which recorded the circumstances of the offence, making “no reference to his client having resisted arrest”.

Legal principles

Justice Irvine stated that awards of damages should be:

Justice Irvine emphasised that an appellate court should not engage in “petty interference with an award of damages and should only interfere if satisfied that the error in the award is so serious as to render it unjust or lacking in proportionality having regard to the injuries sustained”.

Further, she stated that the proportionality test was “particularly appropriate insofar as it can readily be applied to any appeal regardless of whether the complaint made by the appellant is one of excessive generosity or undue parsimony on the part of the judge or jury”.

Justice Irvine was in agreement with Counsel for Mr Buckley that the 2004 Book of Quantum publication was “undoubtedly out of date”, and that awards “regularly exceed those advised in the Book of Quantum by as much as 50%”.

Considering the circumstances, Justice Irvine was satisfied that the award of the jury in this case was not fair to Mr Buckley and was sufficiently disproportionate to his injuries that the same must be set aside as an error of law.

Contributory negligence

Justice Irvine found that the jury “could only have come to the apportionment of liability which it did by mistakenly taking into account all of Mr Buckley’s adverse conduct on the night in question rather than only that conduct which could be implicated as being causative of his injury”. Consequently, “the jury adopted an incorrect and impermissible approach to its consideration of the issue of contributory negligence with the result that it made a finding which was grossly excessive in all of the circumstances”.

Pursuant to section 34(1)(a) of the Civil Liability Act 1961, “if it is not possible to establish different degrees of fault, liability should be apportioned equally”.

Decision

Justice Irvine found that Mr Buckley should be awarded €35,000 in respect of his general damages, abating to a figure of €17,500 having regard to his contributory negligence – an award which is governed by the provisions of section 17(3) of the Courts Act 1981 (as substituted by s.14 of the Courts Act 1991).