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Cite as: [1998] IESC 42

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Flynn v. Garda Commissioner [1998] IESC 42 (10th November, 1998)

AN CHÚIRT UACHTARACH

THE SUPREME COURT

O‘ Flaherty J,

Murphy J.,

Lynch J.,

(102,112,199/94)

BETWEEN:

JAMES FLYNN

Plaintiff/Appellant

.V.

COMMISSIONER AN GARDA SIOCHANA,

THE ATTORNEY GENERAL,

BRIAN J. KEALY AND JOHN SWEENEY

Defendants

Judgment (ex-tempore) delivered on the 10th day of November, 1998, by O’Flaherty J.

1. The background facts to this case are that on the 4th November, 1986, just over twelve years ago, the plaintiff, who was somewhat the worse with drink on the occasion, was arrested by two members of the garda siochana, Garda Kealy and Garda Sweeney, at Dundalk, Co. Louth. The basis for the arrest was that the plaintiff was drunk in charge of a car. It is right to say that, when the case came on in the District Court afterwards, he was acquitted. However, it is clear that the gardai had cause for arrest when they did arrest Mr. Flynn.

2. The plaintiffs essential claim at trial was that in effecting that arrest the gardai, Garda Kealy as it has transpired - so the allegation goes - used

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excessive force in effecting the arrest. It is said that he twisted the plaintiffs right arm up to his neck and caused a form of soft tissue injury which resulted in swelling and which left him with a very painful elbow joint which was diagnosed as a form of tennis elbow. While at first flush it might not have appeared too serious an injury it did involve that he had to have two operations on the elbow under Mr. Owen Barry, the well-known orthopaedic surgeon. That required a general anaesthetic on each occasion and it required, as well, that each time his arm should be put in plaster of paris for up to four weeks.

3. On any view, and it is conceded by the State, this was not a minor injury but was one for which he would be entitled to a reasonably substantial figure in damages. That is on the premise that he made out his case. The defence was in denial that any excessive force was used. Both sides agree that a figure of in or around £20,000 would be the least figure that a jury could fairly award to the plaintiff for general damages.

4. The case came on for hearing before Geoghegan J. and a jury, and concluded on 11th February, 1994. The essential question that the learned trial judge put before the jury was as follows: was the plaintiffs right arm twisted behind his back up to his neck by Garda Kealy in the course of the arrest of the plaintiff? To which the jury answered “yes”. The next question was: if so was the plaintiffs injury caused by that action? The answer to that was “yes" and

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the jury assessed special damages of £216 and damages for pain and suffering to date £1,000. They jury did not award any damages into the future.

5. In my judgment, the award of £1,000 for general damages cannot stand. Either excessive force was used or it was not. Mr. Reidy, S.C., for the State has suggested to us that perhaps the jury “fudged” matters. That while essentially finding for Garda Kealy, to use an Oriental expression, they might have wanted to save Mr. Flynn’s face by giving him something, and perhaps to save him some costs. It is exceptional for a jury to do anything other than their duty but perhaps they neglected their duty to a degree on this occasion and were activated by a spirit of trying to give something to each party. This must be said, too: it was the defence case that as soon as he was arrested the plaintiff feigned a fall and that he sustained his injury in that way.

6. So what is to be done? It seems clear to me that this Court would not be entitled to intervene to substitute its award for that of the jury’s since there is such a discrepancy between what the jury did give, namely £1,000, and what both sides agree should be the bare minimum sum of £20,000. I think all the members of the Court are agreed that that, too, is the figure that would be appropriate to the circumstances of this case assuming, of course, that the plaintiff proves his case.

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7. There is a total mystery surrounding the actual basis for the jury’s conclusions and, in my judgment, the only way to resolve that dilemma is to order a retrial. Old and all though the case may be, I have no doubt that it will be a retrial on the question of assault only and, therefore, it should not prove too difficult of presentation. There had been matters pleaded alleging malicious prosecution and false imprisonment originally but they have gone out of the case.

8. If an application is made to the President before the end of term I am sure he will do everything he can to facilitate an expeditious retrial of this matter.

9. One other point I would wish to make: it is that Garda Kealy’s position is quite clear on any view. He was acting in the course of his employment with the State and he is entitled to whatever protection follows from that because, and this is old law laid down in a case of Bayley . v. Manchester, Sheffield and Lincolnshire Railway Company [1871] 7 C.P. 415 - in which the judgment was given by that eminent Irish judge, Mr. Justice Willes - even if, and I am not saying it was the case, a person exceeds his apparent, basic authority that does not mean that he is acting outside the scope of his employment. If it is ultimately found to be the case that excessive force was used here, this will have happened because the gardai have to take rapid decisions very often. It is

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quite clear that Garda Kealy was acting in the course of his duties. Whatever version is accepted, whether the plaintiffs version is accepted, and of course if Garda Kealy’s version is accepted - it goes without saying - he was acting in the course of his employment and duties with the State.

10. In all the circumstances, I would order a retrial and we will hear the parties on the question of costs.