THE HIGH COURT
MINISTER FOR JUSTICE
Judgment of Mr. Justice Barron delivered the 8th day of February, 1989
The Plaintiffs live in Achill, Co. Mayo. They have five sons. The present claim relates to the death of their eldest son on the 4th June 1971. He was drowned in the Irish Sea while an apprentice on the fishing trawler "Waivecrest" which operated out of Howth, Co. Dublin.
On Friday the 4th June 1971, the vessel was at sea under its acting skipper with in addition a crew of four including the deceased. The latter was lost overboard at approximately noon on that day. When his loss was reported to the acting skipper, the nets were hauled in to enable the vessel to turn and search for the boy. In the course of so doing, the nets fouled the propeller and the trawler was immobilised. Another trawler came to its assistance. This vessel searched for the boy for two hours without success and then towed the Waivecrest into Howth, arriving at about 8 p.m.. Although there would have been at least two further hours of daylight no further search was made that day nor was any lifeboat called out.
No search was made either the next day Saturday nor on Sunday. On Monday at dawn a fleet of about 12 vessels set out to search for the deceased's body. During the morning the Waivecrest found his pullover. Later another vessel found both his boots and a third vessel found his oilskin jerkin.
The Waivecrest found the body at about 7.30 p.m.. On the return journey, the crew of the Waivecrest removed the remaining clothing from the body, washed it and rolled it in a blanket.
Meanwhile the Plaintiffs had been informed of the loss of their son overboard on the Friday. They met the skipper the following day who was unable to tell them anything of the circumstances of their son's death since he was not on board at the time. When they were notified that the body had been found, they came to Dublin. They were not asked to identify the remains and were surprised to discover that an undertaker had been employed and that the body was already in its coffin.
They were upset by a number of matters: the failure to mount a proper search until the Monday, the washing of the body by the crew and the fact that the body was already in its coffin when they first saw it. They tried to find out exactly what had occurred but no one would give them any information. They employed a Solicitor.
They were to suffer an even greater upset. On the 24th July 1971, their Solicitor wrote to the Garda Superintendent in Howth to enquire the date of the inquest. The reply told them that the inquest had been held on the 23rd July 1971 in their absence. The explanation for the failure to inform them lay in the belief of the Garda authorities that since the skipper of the boat was aware of the inquest arrangements he would have passed on this information. The Station Sergeant who gave evidence before me explained that he liked such information to be given as gently and with as little upset as possible and since he understood the skipper to be a neighbour of the Plaintiffs in Achill, he believed this information would be given to them. The skipper however lived in Howth and did not pass on the information.
The Plaintiffs then sought details of the proceedings before the Coroner. They received a copy of the depositions of the acting skipper and of the Doctor who had examined the body together with a copy of the Coroner's verdict. The Doctor's deposition indicated that the body had no signs of injury externally. It indicated that internally the windpipe bronchial tubes and lungs were filled with water and that a few small haemorrhages were seen on the surface of the heart and lungs. The stomach contained a large amount of fluid. In the Doctor's opinion death was due to Asphyxia due to drowning. The inquest was held without a jury and the verdict as recorded was:
"Anthony Davitt died on the 4th June 1971 from Asphyxia secondary to drowning when he fell overboard from the trawler "Waivecrest" on that date."
The Coroner had written across the record of verdict "I regard the occurence as accidental."
The deposition of the acting skipper set out his knowledge of events. The vessel was fishing east of Clogher Head. From about 10.30 a.m. it was travelling in a south easterly direction at about three to four knots with the wind and sea from a north easterly direction which meant that it was on their beam. He himself was in the wheel-house while the rest of the crew was on deck tailing prawns. When this latter job had been completed, the deceased would normally have gone to the galley or shovelled the waste overboard, while the rest of the crew would have gutted and washed the fish. The tailing of the prawns had been completed at 11.45 a.m. when the acting skipper had last seen the deceased. At 12.10 p.m. the acting skipper was told by another member of the crew that the deceased could not be found. The further actions of the crew and vessel to which I have already referred are set out in the deposition. It ended by stating that there was a protective railing round the boat about 2 foot 6 inches high and that the pullover taken from the sea was the same one as he had seen the deceased wearing under the straps of his oilskin trousers.
No statement appeared to have been taken from the other three crew members. The Plaintiffs were upset and suspicious before they received these documents. Having read them their distress deepened and their suspicions grew. Further questions were raised to which they had no answers. In particular, they could not understand why the three crew men were not called at the inquest and why the man who first saw the body was not called also. The matters which had originally upset them still remained unanswered. Finally it appeared to them that the inquest had been held in secret. They never received answers to these questions nor any of the information which they required.
At this stage, it is difficult to see why the other crew members were not asked by the guards to make statements. For whatever reasons statements were taken from only three persons; the acting skipper, the skipper and the skipper of one of the trawlers involved in the search. These statements were forwarded to the Coroner. He has given evidence before me.
He did not regard the statements of the two skippers as being relevant since neither was present when the incident occurred.
Apart from the statement of the acting skipper, there was no other evidence available to him.
Both the Coroner and the Station Sergeant from Howth Garda Station gave evidence. Surprisingly they both hold now the positions which they held in 1971. No other oral evidence was adduced. The Plaintiffs had written out a statement together with a sworn affidavit and other documents which they handed in. The Defendant accepted that the contents should be treated as if the statement had been given on oath and-the documents proved in the ordinary way.
From this "evidence" it appears that a fatal injuries action was brought by the first named Plaintiff against the skipper and acting skipper of the Waivecrest. If this had continued to a hearing, the doubts and worries of the Plaintiffs might have been answered. Such an action would have enabled them to investigate the circumstances of the death of their son. While it was unlikely to have been successful, since there is no evidence to suggest that they were in a position to establish negligence, it may be that other crew members would have given evidence in which case certain of the questions being raised would have been answered. However, the hearing did not take place because the Plaintiffs disagreed with their legal advisers. The Plaintiffs wish to draw attention to the unsatisfactory nature of the inquest and no doubt of other aspects of the investigation of the death. Their lawyers advised against so doing. When the Plaintiffs refused to be guided by their lawyers, the latter withdrew from the case. Unfortunately, this was the day before the date fixed for the hearing in the High Court. As a result on 8th April 1975, there was no appearance on behalf of the Plaintiffs and the case was dismissed.
Since then the Plaintiffs have been ceaseless in their efforts to get the questions answered but without success. They applied in 1979 to the Court of Human Rights, but their application was held to be out of time. Consequently, there was no hearing of the merits of their complaint. Around this time, they applied to the Attorney General to direct a fresh inquest but without success. They wrote for assistance to the ombudsman, politicians, newspapers and others, but without any success.
These proceedings were commenced in 1983. Essentially the Plaintiffs are seeking to obtain answers to their questions which still remain unanswered. In early 1984 they were sent copies of statements made by two of the crew members, but not that made,by the third. It appears that these three statements had been obtained from the crew members on directions issued by the Department of Justice and had been taken in April 1976.
These statements together with the statement of the acting skipper indicate the following circumstances. Until 11.45 a.m. all four members of the crew apart from the acting skipper were on deck tailing prawns. At that stage, one of these four went into the hold. Two others of the four were on deck washing fish and passing them down to the crew member in the hold. The fourth, the deceased, was on deck to shovel the prawn waste over the side. It was at this occupation that he was last seen. His absence was discovered by the crew member in the hold who must obviously have come up on deck. This was about 12.05 p.m.. All this time, the acting skipper was in the wheel-house.
I do not think it necessary to repeat the questions which the Plaintiffs require to have answered. From a consideration of these statements, it is clear that the deceased went overboard while two crew members were on deck and while a third was in the wheel-house. The vessel was travelling very slowly at three to four knots. There is no suggestion that the sea was other than calm. He suffered no external injury. From these limited facts, it seems highly unlikely that no one saw or heard the accused going over board. As the deceased had suffered no external injury it is unlikely that he was knocked unconscious and so must have been in a position to have shouted for help when in the sea. It is also unlikely that no one would have heard such shouting had it existed.
Mrs. Davitt now makes the point that she cannot understand how her son got his pullover off while in the water but still had the straps of his trousers in position when he was found. This has added to her suspicion of a cover-up. Undoubtedly this is a further question requiring explanation. It gives rise to further questions of a similar nature. Equally, if an investigation into the occurrence were now to take place many other questions would also arise for consideration.
It is all a matter of the approach taken by the investigating officers. If accident is assumed, then accident will be discovered. If the possibility of unlawful conduct is considered then it is possible that the verdict will not be one of accident. This is not to mean that the deceased did not meet his death through accident. It is to illustrate that there may have been another cause and that those investigating the incident should have realised that.
The fault lies initially with the Garda Officer who decided to obtain only three statements. The Coroner must also bear some blame for the present uncertainty. In evidence he said that he acted on all the relevant evidence available to him. But he had the power to summon witnesses, but did not exercise it. However, I am sure that he was influenced by the fact that the Gardai appeared to be satisfied and the fact that the next of kin did not attend. To him, it must have appeared to have been routine.
The reality of the matter is that there was never an inquiry by someone with an open mind. If there had been, the Plaintiffs could and should have been made aware of its findings. If so, much of the anxiety and distress which they have suffered would have been avoided.