Supreme Court of Ireland Decisions

1. This is an appeal from the order and judgment of the High Court (Gannon J with a jury) whereby after a trial lasting five days the jury awarded the plaintiff/respondent damages for assault and false imprisonment as well as damages for malicious prosecution against the first two defendants/appellants (members of the garda siochana). For these torts the State was found vicariously liable.

The jury awarded the plaintiff £5,000 damages for the assault and false imprisonment and a total of £61,787.50 damages in respect of the malicious prosecution.

The plaintiff gave evidence that he was a single man; a long distance lorry driver by occupation and that he was a native of Banagher, Co Offaly but had lived in Dublin since 1964. He would return to his native county from time to time to visit members of his family. He was an active supporter of a particular political grouping and, from time to time, had been interviewed by members of the Garda Siochana when they were investigating subversive activities. On the 16 September, 1983, he was in the town of Birr in connection with a surprise birthday party for his mother.

He told of visiting a bar in the Main Street in Birr and having a conversation with two young men, Mr Shortt and Mr Gleeson. Afterwards they went outside and one mentioned that he was going to visit a brother in Long Kesh (a prison in Northern Ireland) and the plaintiff told that he noticed an unmarked garda car across the street and said: "better not to talk about anything like that, move along". With that the two gardai, Lewis and Dolan came over and Garda Lewis gripped him by the right arm and brought it up behind his back and walked on his instep. Garda Lewis, according to the plaintiff, asked him what he was doing there and what had he said to the other two men about the garda presence on the far side of the street. The plaintiff replied: "I just said the guards were on the side of the street, it is best to move along". Garda Lewis said: "Go on, you said more than that". Then Garda Dolan joined in the conversation and said: "What the hell do you work at anyway" and when the plaintiff replied that he was a truck driver he started to laugh about it and assaulted him. The plaintiff said that Garda Dolan drew his truncheon and "stabbed" him in the left kidney and knocked him over and after doing that he said to Garda Lewis: "Michael, he did assault you didn't he?". And the reply to that was: "That's right, Gerry". With that he drew his truncheon again and "stabbed" him in the kedneys three or four times. The plaintiff went on to describe how he was hit by the truncheon right across the two eyes and that the garda appeared to go frantic at that stage and gave it to him everywhere he could, on the back, down on the left hand and that he received a blow on the muscles of the arm and felt his fingers go numb. With that Garda Dolan started to hit him on the back of the head, the back of the shoulder and started to drag him across the street; the plaintiff said that he was willing to go peacefully at all times but it appeared that the gardai did not want him to go peacefully and seemed as if they wanted him to fight with them which the plaintiff said he never did.

The plaintiff went on to relate that he was forced to get into the back of the garda car where he was again assaulted with a baton by Garda Dolan.

He was brought to the local garda station and as he was going up the steps into the building he was assaulted again by Garda Dolan who hit him with his baton on the back of the neck and the plaintiff felt that he was stunned. He met Garda Donovan whom he had known in the past in the station and appealed to him for help. Garda Donovan told him to calm down. The plaintiff said: "These guards are after assaulting me, beating me up" to which Garda Donovan is said to have replied: " now calm down".

He said that he was asked to empty his pockets and as he was doing this he looked at the clock and noticed that it was 2 minutes past 12.

The plaintiff further said he was not allowed to make a telephone call or call a doctor. He gave evidence that Garda Lewis deliberately pulled the sleeve out of his own coat and said: "Look what you have done to my coat". When it came to half past twelve Garda Dolan said to Garda Donovan that he might make one phone call and so he rang his sister Gemma, who lived locally; indeed opposite the bar out of which the plaintiff had come when the incident began.

As a result he was visited by his brother-in-law, Mr Noel Ely. Shortly afterwards he was brought into a room and told that he was going to be charged with assault and was given a document to sign which was a bail bond. When asked if he had any complaint to make (by Garda Dolan and Garda Lewis) he said he would not make any complaints to them and that any complaints he would make would be in front of a judge.

He went to his sister's home with his brother-in-law and they both saw his condition. He was also seen by a local doctor who, however, did not give evidence at the trial.

Some days later he returned to Dublin where he contacted his solicitor, Mr Dudley Potter and was examined by a Dr Maharaj in Raheny. He said his eyes were troubling him at that stage that they felt sore and he remained out of work for a fortnight. Thereafter, he appeared in the District Court in Birr and was sent forward for trial to Tullamore Circuit Court. Thereafter he applied for a transfer of his trial to the Dublin Circuit where his trial took place on the 16th January 1985. The only charge against him was one of assaulting Garda Lewis in the due execution of his duty.

The evidence led for the prosecution was that of Garda Lewis who said that the plaintiff had assaulted him and had tried to push him through a window and that Garda Dolan had to draw his truncheon to break the plaintiff's grip. Garda Dolan corroborated that account. It appears that no other evidence was called for the prosecution. The plaintiff then gave evidence and called witnesses on his behalf and was acquitted by the jury.

The course of the evidence in the High Court was in similar vein. The plaintiff's case was, put simply, that he was brutally assaulted in an unprovoked way. The garda evidence was that he provoked the assault and had caused the damage to the garda's clothing. The plaintiff also gave evidence of a letter that he had written to the Minister for Justice on the 21 September, 1983, complaining of the assault and verbal abuse that he had received at the hands of the two gardai; on the same date he wrote a letter in similar terms to the Superintendent of the Garda Siochana at Birr. He got a formal acknowledgment from the Department of Justice and Superintendent Owens, the local Superintendent, approached him on his initial appearance in court to find out if he wished to make a complaint but he said that he would reserve that possibility until after the court case was over when he said if the Superintendent was interested in receiving a complaint from him he should see him then.

The plaintiff gave evidence concerning the effect that the assault had on him; he told of soreness and pain in the back of the eyes, soreness in the kidney area, lumps on the back of his head, intermittent pains, lack of sleep and nightmares. In relation to the bringing of the charge against him, on which he had been acquitted, he said that he had been "fearing" for a long time ever since he brought his own proceedings and that he was approached on many occasions by members of the Special Branch who had referred to the case and that he felt worried for his own safety.

It will be obvious that the kernel of the case, the decisive matter to be resolved by the jury, was which party was telling the truth.

That issue was, without any doubt, resolved in favour of the plaintiff.

In the course of his charge, the learned trial judge fully and extensively set out the ingredients of the torts alleged, assault, false imprisonment and malicious prosecution. However, through inadvertence, the judge did not give the jury any directions at all as to how they should assess damages. As a result of a requisition made to him by counsel for the plaintiff he did give them full directions on how they should assess general damages and the fact that the special damages were agreed and so forth. He then went on to deal with how they should approach the question of general damages for malicious prosecution and said there was another element in it. He went on to say:-

"It's certainly compensating him for harm that he suffered because the process of using the law and the authority of the law and to subject a person, that is (affecting) his rights, which we are all entitled to under the Constitution and it merits a more serious element in the damages. I am merely saying well this is the value for that, for what you went through, you went through in the process as he described himself and the effect it had upon him and that he still, he says himself, suffers from the effects of the whole thing which comes from that; so there is a much heavier element there and it is an element which carries with it an infringement of his personal rights and for that he is entitled to a sum of money which you think suitably gives recognition to those rights and the abuse of them, if you think he has succeeded in his claim and that he should get damages. But that is only to help you. Again it is a little bit vague because I can't put a figure to you and can't tell you what sort of damages. I am not in the Jury Box. You have to do the work, I have done mine. Thank you very much".

The questions that should be submitted to the jury were agreed by counsel and tha questions and answers on the issue paper were as follows:-

1.a.1. Did Garda Lewis assault the plaintiff?

Answer: Yes.

1.a.2. Did Garda Dolan assault the plaintiff?

Answer: Yes.

1.b. If the answer to either part of 1.a is Yes, was the assault by the Garda or Gardai committed while acting within the scope of his or their duty as Gardai?

Answer: Yes.

2. Did the plaintiff assault Garda Lewis or Garda Dolan?

Answer: No.

3. If the answer to 1.a is Yes, were Garda Lewis and/or Garda Dolan acting (a) in self defence?

Answer: No.

(b) while effecting a lawful arrest of the plaintiff,

Answer: No.

4. If the answer to part a or part b of Question 3 is Yes, was more force used than was reasonable in the circumstances by (a) Garda Lewis?

Answer: No.

(b) Garda Dolan?

Answer: No.

5.a. Did Garda Lewis and Garda Dolan falsely imprison the plaintiff?

Answer: Yes.

5.b. If the answer to 5.a. is Yes, were Garda Lewis and Garda Dolan acting within the scope of their duties as Gardai?

Answer: Yes.

6.a. Did Garda Lewis and Garda Dolan maliciously cause the plaintiff to be prosecuted?

Answer: Yes.

6.b. If the answer to 6.a. is Yes, were Garda Lewis and Garda Dolan cting within the scope of their duties as Gardai?

Answer: Yes.

7. If the answer to either part of 1.a and/or to 5a is Yes, and the answers to all parts of questions 4 and 4 are No, assess damages for assault and false imprisonment.

Answer: £5,000.00 with costs.

8. If the answer to question 6.a. is Yes, assess damages for malicious prosecution under the headings:

2. I will later in this judgment describe how this change in the damages came to be made.

GROUNDS OF APPEAL

Before this Court the first and second-named defendants/appellants abandoned their appeal on a number of grounds including their liability for assault and false imprisonment and the damages in the sum of £5,000 awarded. They relied only on the following four grounds of appeal:-

1.(a) That in an action for malicious prosecution it is a necessary proof for the plaintiff to establish an absence of reasonable and probable cause for bringing the prosecution.

(b) That the learned trial judge, although requisitioned so to do, failed to tell the jury that they were entitled to disagree if less than nine members of the jury could not agree on one question on the issue paper.

(c) That in the pleadings no claim was made by the plaintiff for exemplary damages and that this failure did not entitle the jury in the instant case to award exemplary damages if they had not been pleaded.

(d) That the damages awarded in respect of the malicious prosecution were grossly excessive having regard to all the evidence.

The third and fourth-named defendants/appellants limited their appeal before this Court to three grounds as follows:-

2.(a) That since on the evidence and the jury findings, the first and second-named defendants had fabricated a case against the plaintiff, for those defendants were no longer acting within the scope of their employment or duty and that therefore there could not be any vicarious liability on the State.

(b) That section 14.4 of the Civil Liability Act, 1961 provides that in the case of punitive damages where there are concurrent wrongdoers, the punitive damages should be awarded only against the defendant or defendants guilty of the tort or torts warranting the award of punitive damages.

(c) That the damages award for malicious prosecution on the evidence, were grossly excessive.

Ground 1(a)

Absence of reasonable and probable cause

To succeed in an action for malicious prosecution, the plaintiff must prove:-

(i) That the criminal proceedings terminated in his favour.

(ii) That the defendant instituted and/or participated in the proceedings maliciously;

(iii) That there was no reasonable or probable cause for such proceedings;

(iv) The plaintiff suffered damage.

Counsel on behalf of the appellants, in the course of an application to withdraw the case from the jury, briefly touched on the onus that the plaintiff had to discharge regarding reasonable and probable cause for the prosecution of the plaintiff. This submission was made in the context of an overall submission that the plaintiff had failed to adduce prima facie evidence of malicious prosecution by the first and second-named defendants/appellants.

The application was not renewed when all of the evidence had been called, nor was it the subject of any requisition to the judge after his charge to the jury.

I am satisfied that the finding of an absence of reasonable and probable cause had to be based on the primary finding that had to be made. In this case the plaintiff's action was not solely for damages for malicious prosecution but was for assault, false imprisonment and malicious prosecution. It was at all times the plaintiff's case that the false imprisonment in the garda station for the purposes of preparing an assault charge against him was part of a deliberate cover-up by the two gardai of the assault that they had actually committed on him. In dealing with malicious prosecution the learned trial judge directed the jury as follows:-

"I have already shown you how closely false imprisonment and assault relate to each other in the nature of the action and what happened, but malicious prosecution has another element in it and that is invoking a purported authority and abusing it, using it where they have no right to be using it, abusing the authority of the Courts for the purpose of bringing about a prosecution and the consequences of that and that's why that's a completely different element and the onus there is on the plaintiff to show that if he is to get any damages under that heading, that in fact the gardai did abuse their position and they brought a prosecution against him for a completely wrongful motive and in the circumstances in which there was no reasonable cause to bring it at all . . .".

In my view the direction given by the learned trial judge was a correct one. I am also of the opinion that once the jury accepted that the assault was committed by the defendants on the plaintiff and that the plaintiff did not assault the defendants they could not on the evidence before them have brought in a verdict in favour of the defendants, either in respect of false imprisonment or malicious prosecution because to do so would have rendered their verdicts inconsistent. While there may be cases where the trial judge should decide the issue of reasonable and probable cause, this is not one of them. There may be cases where as the authors of MacMahon and Binchy: "Irish Law of Torts" (2nd edition) p 678 point out that the plaintiff has the "somewhat daunting task of proving a negative". No such problem arises in this case. There was a single, solitary, stark fact to be determined: who had committed the assault. Those with the obligation to determine the facts in this case were the jury and once they had made a finding that the assault had been committed by the gardai and not the reverse then everything else inevitably followed.

Ground 1(b)

Jury entitled to disagree?

This ground arises in this way: At a certain stage the jury returned and the Foreman said that they had a problem with one of the questions; that they could only reach an 8 - 3 majority. There were 11 members on the jury since a member had been discharged in the course of the trial. The judge told them that this would not be acceptable and that they would have to go back and do their best. No authority was cited for this remarkable proposition and my judgment is not going to afford one. I think, on the contrary, it is far more desirable that the jury should be urged to agree if possible. The judge simply afforded them this opportunity on this occasion.

Grounds 1(c) and (d)

Exemplary damages

It is true that exemplary damages were not claimed in the pleadings but they do not have to be expressly claimed in the pleadings under the rules of court. I believe it might be desirable if the plaintiff did indicate in advance (even if it does not form part of the formal pleadings) that he does intend to claim exemplary damages. This is to afford a defendant an opportunity to meet such a case. We were assured by counsel for the plaintiff that they did ask for damages over and above the ordinary general damages but whether what they were seeking were aggravated damages or exemplary damages may not have been altogether clear and, certainly, was not dealt with in any great detail by the learned trial judge beyond what I have already quoted from his charge.

When the jury first returned to court with their verdict they had entered an award of £30,000 for "special damages" and £30,000 for "general damages" in respect of the malicious prosecution. The judge pointed out that the agreed special damages were only £1,787.50 and the jury after a very short retiral returned to court and the appropriate sum had been entered for special damages but the sum for general damages had been increased to £60,000.

The question for resolution, now, is whether the total award for damages for malicious prosecution consisting as it must of compensatory damages and an element of exemplary damages is excessive.

I believe that in the circumstances of this case the jury were entitled to award exemplary damages both for the assault and false imprisonment on the one hand and for the malicious prosecution on the other. Equally they were entitled to award exemplary damages in respect of one or other or both. They choose to award what were obviously exemplary damages in relation to the malicious prosecution.

In cases, like this, where there is an abuse of power by employees of the State the jury are entitled to award exemplary damages. One of the ways in which the rights of the citizen are vindicated, when subjected to oppressive conduct by the employees of the State, is by an award of exemplary damages.

I come now to the actual quantum of damages awarded. There was no appeal in respect of the damages awarded for the assault. Counsel for the plaintiff agreed that while, as he contended, it was on the low side it was not such as would call for the intervention of this Court. I believe that the damages awarded for the assault and for the malicious prosecution have to bear some relation to each other.

The medical evidence called on his behalf suggested that he had a mild reactive depression. I have already mentioned that he was worried about what he thought of was a certain fear as a result of having brought the present proceedings, as I understand his evidence. On the evidence before the jury, in my view, the maximum award that could be given for general damages for malicious prosecution would be in the region of £5,000. However, in assessing the exemplary damages the jury were entitled to have regard to the conduct of the members of gardai concerned who, acting in their capacity as gardai --

(a) brought a false charge against the plaintiff;

(b) gave evidence at the criminal trial to support this false charge, and

(c) in repeating in the civil action what the jury had found to be false evidence given by the same gardai against the plaintiff in the criminal trial.

However, as I have said, the amount awarded for exemplary damages should bear some relation to the amount that would be proper for general damages. I would substitute an award of £20,000 exemplary damages in the circumstances of this case.

Ground 2(a)

State's liability

As already indicated in this judgment, Question No 6 (a) and (b) were allowed to go to the jury, both of which questions were answered by the jury in the affirmative. No requisition was made by counsel on behalf of the third and fourth-named defendants to have the jury recalled and re-directed on the issue of vicarious liability of the third-named defendant for the acts of the first and second-named defendants.

It was not contended in this Court that the original assault on the plaintiff was committed by the first and second-named defendants other than in the course of duty. Everything else done by the first and second-named defendants flowed directly from the assault, including the false imprisonment and the bringing and prosecuting of the charge against the plaintiff. It was never put by counsel on behalf of the third-named defendant during the trial to the first and second-named defendants while giving their evidence that they in fact were acting on an enterprise of their own. It was in the course of the trial that this issue should have been contested, not on appeal.

This ground of appeal must fail.

Ground 2(b)

Concurrent wrongdoers

Section 14(4) of the Civil Liability Act, 1961 was not referred to in the High Court nor was it referred to in the notice of appeal of the third and fourth-named defendants.

I would also dismiss this ground of appeal.

MCCARTHY J: On the 16 September 1983, on the findings of the jury, against which there is now no appeal, the Plaintiff was assaulted by the first and second Defendants, both members of the Garda Siochana. They brought charges under the Offences Against the Person Act 1861 against him, and he was tried, in Dublin, in January 1985 and acquitted. He sued these two Defendants along with Ireland and the Attorney General for damages for assault, false imprisonment, and malicious prosecution. The jury found that he had been assaulted, that he had not assaulted either the first or second Defendant, that he had been falsely imprisoned, and that he had been maliciously prosecuted, all of these torts being committed by the first and second Defendants in the course of their duty. He was awarded £5,000 damages in respect of the assault and false imprisonment, and £60,000 together with special damages in respect of the malicious prosecution.

(1) The Garda Appeal.

The first and second Defendants appeal on the grounds that

(a) the Plaintiff in an action for malicious prosecution must establish an absence of reasonable and probable cause for bringing the prosecution and had failed to do so.

(b) the learned trial Judge failed, although requisitioned to do so, to tell the jury that they might, so to speak, persist in an existing disagreement.

(c) that no case was made claiming exemplary damages and that the damages awarded in respect of malicious prosecution, as compensatory damages, bear no reasonable proportion to the injuries sustained.

(2) The State's Appeal

The third and fourth Defendants contend that

(a) since, on the jury findings, the Garda Defendants had fabricated a case against the Plaintiff, these Defendants were no longer acting within the scope of their employment or duty and, therefore, there was no vicarious liability on the State

(b)(i) the damages awarded in respect of malicious prosecution must contain an element of punitive damages

(ii) punitive damages should not be awarded against a Defendant whose liability is only vicarious.

I would dismiss both appeals.

(1) Reasonable and probable cause. Whilst in the course of an application to withdraw the case from the jury, the argument touching on reasonable and probable cause was made to the trial Judge, it was not renewed at the end of the evidence nor was it the subject of any requisition; further, the relevant question in this regard was agreed between Counsel for the several Defendants. In the circumstances, I would not entertain this ground of appeal. The Court did, for what it was worth, permit argument to be advanced on this ground and it is right to say that I am quite satisfied the ground is unsustainable. It is clear that whilst the assessment of reasonable and probable cause is on an objective basis, that objective basis must establish the absence of reasonable and probable cause to those concerned, in this case, the first and second Defendants. It was clearly open to the jury to conclude that these Defendants had, in fact, assaulted the Plaintiff, had lied about the nature of the incident in which the assault took place including the allegation that the Plaintiff had assaulted them, had concocted a story in regard to the time of certain events and had made false written statements. There was an overwhelming case of the absence of reasonable and probable cause, once the jury accepted, as clearly it did accept, that the assault had been by these Defendants on the Plaintiff and not the other way around.

(2) The failure to direct the jury that it might disagree.

No direct authority was cited in support of this proposition which appears to me quite unsustainable.

(3) Vicarious liabilities. In the course of the argument, counsel for the State was asked as to where the scope of employment or duty ends -- at what particular time and in what circumstances. No satisfactory answer was obtained to this question because there is no satisfactory answer. The matter is summarized in the second edition of McMahon & Binchy -- Irish Law of Torts at page 756 where it is suggested that the test is by looking to see if the acts complained of are so closely connected with the employment of the primary wrongdoer as to make the employer vicariously liable. It is not suggested that the original assault was other than in the course of duty; everything else flowed directly from it, including the bringing and prosecution of the charges against the Plaintiff. I reject this ground of appeal.

(4) Damages. Counsel for the Plaintiff has informed us that reference was made both in the opening and closing speeches for the Plaintiff to the right of the jury to award exemplary damages; it is difficult to believe that such a point was not taken; there is a reflection of such a proposition in observations made by the trial Judge in the course of his direction to the jury both initially and after requisition on damages where he referred to the special elements in the case apart from the compensatory factor. Indeed, the initial verdict of the jury in which sums of £30,000 were written into the issue paper in respect of both special and general damages suggested that the jury, itself, was contemplating a separate award in that regard. In my view, the award did contain a significant element in respect of exemplary damages because of the abuse of power in the breach of the Plaintiff's constitutional rights by the first and second Defendants.

The Plaintiff, from the time of the original incident, until his trial, had to undergo a period of some 15 months of significant anxiety and concern not knowing what the outcome might be and knowing that the Gardai were conspiring against him. How was he to know that he would be acquitted? He might well have believed that he had little chance of acquittal and would inevitably have to serve a sentence of imprisonment. If one assumes that approximately half of the damages were compensatory in nature, in my view they are in no way excessive. Compared to the anguish caused by defamatory material published of any citizen, the plight of the Plaintiff in this case seems to me to have been considerably worse. Yet awards of damages for defamation well in excess of £30,000 have become a feature of our Courts. As exemplary damages for the shocking abuse of police power by the first and second Defendants I consider a further sum of £30,000 as a perfectly acceptable level of award.

Exemplary or punitive damages are intended to reflect disapproval -- they are peculiarly appropriate for assessment by a jury. The damages reflect the standing of both the abused and the abuser but one should look, in particular, to the standing of those responsible for the malicious prosecution. Such an action may be brought against an ordinary member of the public, but here it is against two individuals charged with the guarding of the peace and the protection of the public. It seems clear that from the very beginning they conspired together to concoct a malicious prosecution and conceal their own assault; they conspired to pervert the course of justice. In my opinion, the damages appropriate to a case of this kind must reflect the proper indignation of the public at this conduct, whatever windfall it may prove for the Plaintiff in the result. Some reference was made in the course of the hearing to the decision in Rookes v Barnard [1964] AC 1129; [1964] 2 WLR 269, [1964] 1 All ER 367; [1964] 1 Lloyd's Rep 28 where three categories of cases were stated where exemplary damages might be awarded. The decision has been the subject of significant adverse comment in other common law jurisdictions. In my view, it is inconsistent with the dynamism that characterizes the common law to delimit in any restrictive way the nature of its development. It is beyond question that the present is a case of oppressive, arbitrary and unconstitutional action by the servants of government; I reserve for another and more appropriate occasion the further consideration of cases where exemplary damages may be awarded. I see no real difference of meaning between punitive and exemplary in relation to damages. As stated in McMahon and Binchy (page 777) "the inconsistency in terminology in the 1961 Act may thus be traced, not to nuances of meaning between the concepts of "punitive" and "exemplary" damages, but to the promiscuity of our borrowings from British legislation."

The Civil Liability Act 1961

Section 2 (the definition section). "Wrongdoer" means a person who commits or who is otherwise responsible for a wrong. There is no definition of "tortfeasor".

Section 11 "(1) for the purpose of this Part two or more persons are concurrent wrongdoers when both or all are wrongdoers and are responsible to a third person (in this part called the injured person or the Plaintiff) for the same damage, whether or not judgment has been recovered against some or all of them.

(2) Without prejudice to the generality of subsection (1) of this section --

(a) persons may become concurrent wrongdoers as a result of vicarious liability of one for another, breach of duty, conspiracy, concerted action to a common end or independent acts causing the same damage; . . ."

Section 14 "(4) where the court would be prepared to award punitive damages against one of concurrent tortfeasors, punitive damages shall not be awarded against another of such tortfeasors merely because he is a concurrent tortfeasor, but a judgment for an additional sum by way of punitive damages may be given against the first-mentioned tortfeasor.

(5) The Judgment mentioned in subsection (4) of this section may specify that such additional sum is awarded by way of punitive damages, and no contribution shall be payable in respect thereof by a tortfeasor against whom such judgment could not properly have been given."

The transcript of the evidence and arguments at the trial does not reflect any submission based on this section having been made nor does it form part of the Notice of Appeal. In my view, in such circumstances, the Court should not entertain any such ground of appeal. Concurrent wrongdoer presumably includes a concurrent tortfeasor; it is not necessary to decide the construction of subsection (4) of Section 14 of the Civil Liability Act 1961 but I would incline to the view that it is not relevant to circumstances where the liability of the concurrent tortfeasor is vicarious. If the liability to damages be vicarious, as the employer of the primary tortfeasor, then the liability is for the entire of the damages.

O'FLAHERTY J: I agree with the judgments that have been delivered dismissing the appeals by all the defendants on the liability issue. I wish to say something however on the matter of damages.

The proper categorisation of damages has presented difficulties in this as in other cases. In this case the learned trial judge, through an oversight, initially did not address the jury on the question of damages at all. He was asked to do so though he was not specifically asked to say anything about the question of exemplary damages and it is clear that neither the word "punitive" nor "exemplary" was used by him when he did address the jury on damages though the words used by him might be regarded as appropriate in suggesting to the jury that they were entitled to award this latter type of damages. Counsel for the plaintiff have assured us that in the course of their addresses to the jury they asked for damages over and above basic compensatory damages but that could have included what are known as aggravated damages. I took them to accept that the distinction between aggravated damages and exemplary damages may not have been elucidated by them in the course of their speeches.

I believe that while "exemplary" damages are referred to in s 7(2) of the Civil Liability Act, 1961 and "punitive" damages in s 14(4) of the Act the terms are synonymous. I believe this to be so because it is impossible to articulate separate concepts of "exemplary" and "punitive" damages.

Some of the old cases interchange the words punitive, exemplary and, indeed, vindictive to describe these type of damages. They are all used in a passage of Molony CJ's judgment in Worthington v Tipperary Co Council [1920] 2 IR 233 at p 245 where he said:-

"punitive or vindictive damages stand upon an entirely different footing, and are given not merely to repay the plaintiff for temporal loss, but to punish the defendant in an exemplary manner."

In this judgment I shall prefer the description exemplary damages. That these damages can properly be awarded for the torts committed in the circumstances of this case cannot be in doubt. (See the decision of this Court in Dillon v Dunnes Stores; [1966] IR 397 noted in MacMahon and Binchy: A Case Book on the Irish Law of Torts at p 126).

After the division of general and special damages one is down to compensatory, aggravated and exemplary damages and the distinction between them is well put in Salmond and Heuston: Law of Torts (Nineteenth Ed) at p 594:-

Compensatory damages are awarded as compensation for, and are measured by, the material loss suffered by the plaintiff. A distinct category is that of aggravated damages, which may be awarded when the motives and conduct of the defendant aggravate the injury to the plaintiff. Insult and injured feelings are a proper subject for compensation. So a substantial sum was awarded for an "insolent and high-handed trespass" by an inquiry agent. In such a case damages are at large precisely because the "real" damage cannot be ascertained: it is not a matter of determining the "real" damage and adding to that a sum by way of aggravated damages. Yet another distinct category is that of exemplary damages, which reflect the jury's view of the defendant's outrageous conduct. Aggravated damages are given for conduct which shocks the plaintiff: exemplary damages for conduct which shocks the jury.

I would add this important point, however. While aggravated damages are distinct they are still meant to compensate the plaintiff. So, more accurately, they should be regarded -- when they are awarded -- as a sub-head of the compensatory damages awarded to the plaintiff. On the other hand, exemplary damages are a separate category. They are not compensatory at all.

This is obviously not the case to decide whether or not exemplary damages can only be awarded along the lines of the three categories referred to by Lord Devlin in the course of his speech in the case of Rookes v Barnard [1964] AC 1129, [1964] 2 WLR 269, [1964] 1 All ER 367, [1964] 1 Lloyd's Rep 28. However, I think I can safely say that the majority of cases of injured feelings will be met by an award of aggravated damages rather than exemplary damages. As Lord Devlin said: "Aggravated damages in this type of case can do most, if not all, of the work that could be done by exemplary damages" (at p 1230).

Further, I would respectfully adopt the three considerations which Lord Devlin said should always be borne in mind when awards of exemplary damages are being considered. They are, in summary:

1. The plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour. The anomaly inherent in exemplary damages would become an absurdity if a plaintiff totally unaffected by some oppressive conduct which the jury wished to punish obtained a windfall in consequence.

2. The power to award exemplary damages constitutes a weapon that, while it can be used in defence of liberty, can also be used against liberty. The judge was pointing to the need for restraint in the amount of damages that should be awarded.

3. The means of the parties, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages. Everything which aggravates or mitigates the defendant's conduct is relevant.

Taking all these considerations into account, when I look at the actual amounts awarded in this case there is no dispute that the award of £5,000 for assault and false imprisonment was appropriate. I would accept that that award cannot have any exemplary component in it. It represented rather modest damages. Accepting that the award of £60,000 damages for malicious prosecution has an exemplary component, nevertheless, in my judgment a reasonable proportion must be kept between the two awards. In fact one exceeds the other by a multiple of twelve. This is too great a disparity.

The award of exemplary damages is anomalous and where such damages are awarded -- which should be very rarely in my judgment -- the judge or jury must keep them on a tight rein. If the compensatory amount awarded includes aggravated damages then I believe if any award is made by way of exemplary damages it should properly be a fraction rather than a multiple of the amount awarded by way of compensatory damages (including aggravated damages).

In the particular circumstances of this case where the damages awarded were modest I am prepared to agree with the amount proposed to be substituted by Hederman J in respect of the award for malicious damages. It follows, therefore, that I believe that the amount awarded by the jury under this heading was so excessive as to call for the intervention of this Court.