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Cite as: [2002] 2 IR 360, [2002] 2 ILRM 192, [2002] IESC 34

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Devlin v. Roche [2002] IESC 34 (30th April, 2002)

THE SUPREME COURT

136/01

McGuinness J.

Hardiman J.

Geoghegan J.

BETWEEN/

TERENCE DEVLIN

Plaintiff

and

GERARD ROCHE, THE MINISTER FOR JUSTICE,

IRELAND, THE ATTORNEY GENERAL AND

DENIS SHEEHAN

Defendants/Appellants

JUDGMENT of Mr. Justice Geoghegan delivered the 30th day of April 2002 [Nem Diss.]

1. This is a personal injury action brought against the defendants in respect of alleged assault and battery by the first and fifth-named defendants being members of the Garda Síochána on the 12th of August, 1991 at or near Wayside Celtic Football Grounds, Stepaside, Co. Dublin. The proceedings were commenced by a plenary summons issued on the 12th of August, 1994. The fifth-named defendant was not a party named in the original plenary summons but became an added party by order of the High Court. In both the original and the amended plenary summons, the plaintiff's claim is expressed to be " for damages to include aggravated damages for assault and battery, negligence, breach of duty and breach of statutory duty on the part of the defendants whereby the plaintiff sustained severe personal injuries, loss and damage. " The fifth-named defendant had been added to the proceedings by order of the High Court made the 24th of February, 1997. This defendant delivered a defence on the 23rd of October, 1997 paragraph 1 of which reads as follows:-

"The plaintiff's claim is barred by virtue of the provisions of the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Act, 1991."

2. By order made on the 27th of April, 1998 in the High Court by Johnson J. it was ordered that a preliminary issue be tried before a judge sitting without a jury wherein the fifth-named defendant should be plaintiff and the plaintiff should be defendant, the question at the trial of such issue to be whether the plaintiff's claim as against the fifth-named defendant was statute barred by virtue of the provisions of the Statute of Limitations, 1957 as amended by the Statute of Limitations (Amendment) Act, 1991. Pleadings were delivered in the separate issue and it came to be tried before the High Court (Morris P.) on the 1st of February, 2001. At the hearing the plaintiff/respondent accepted that in so far as his claim might be based on negligence or breach of statutory duty it was statute barred as his proceedings were not commenced within the three year limitation period. He claimed however that in so far as his action was based on assault and battery the relevant limitation period was six years and that claim was therefore not statute barred.

3. Section 11(2)(a) of the Statute of Limitations 1957 as amended by section 3(2)(a) of the Statute of Limitations (Amendment) Act, 1991 provides that " an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued." But section 3(1) provides " an action, other than one to which section 6 of this Act applies, claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) shall not be brought after the expiration of three years from the date on which the cause of action accrued to the knowledge (if later) of the person injured." In effect, therefore the issue which the High Court had to try was whether a personal injury claim based on an allegation of intentional assault was statute barred after three years or only after six years.

4. Morris P. delivered a reserved judgment on the 4th of April, 2001. In his introductory remarks he commented that as far as he was aware this issue had not been decided by the Irish courts although it had been considered on a number of occasions in the English courts. He pointed out that the wording of the relevant part of the English statutes was identical. The learned President held that the plaintiff's claim for damages for assault was not statute barred. The fifth-named defendant has appealed against that decision to this court.

5. As the President correctly observed, the issue has been debated in the English courts in a number of cases but it is now clear from the hearing of this appeal that it has also been considered by the Australian courts in the context of more or less exactly similar legislation. As will become clear, when I review the case law, there is highly respectable judicial opinion on both sides of the issue but the view taken by Morris P. is in accordance with the only decision of the House of Lords on the point namely, Stubbings v. Webb [1993] A.C. 498. The appellate committee consisted of Lord Templeman, Lord Bridge of Harwich, Lord Griffiths, Lord Ackner and Lord Slynn of Hadley and its unanimous opinion was delivered in a speech of Lord Griffiths. But in so deciding, the House of Lords was reversing a strong court of appeal consisting of Sir Nicholas Browne-Wilkinson V-C, Bingham L.J. and Nolan L.J. all future law lords. To some extent the Court of Appeal had felt bound by an earlier decision of the same court in Letang v. Cooper [1964] 2 All ER 929 which was itself a strong court comprising Lord Denning M.R., Danckwerts L.J. and Diplock L.J. Bingham L.J. who delivered the judgment of the court in Stubbings made it clear that he agreed with the decision in Letang and elaborated on his reasons for so doing. In two Australian cases cited before this court and to which I will be referring, the view of the English Court of Appeal rather than the view of the House of Lords was adopted. In Letang the Court of Appeal was in turn reversing the decision of the High Court contained in a judgment of Elwes J. [1964] 1 All E.R. 668. I mention this because to some extent that judgment contains an admirably clear exposition of the view of the law ultimately approved of by the House of Lords at least in relation to intentional assaults.

6. As different arguments have been put forward by the judges in support of both points of view I think it helpful to treat of the case law chronologically.

7. Of the cases which I intend to cite, the first is a judgment of Adam J. in the Supreme Court of Victoria, Kruber v. Grzesiak [1963] VR 621. That was an action which started as a claim for personal injuries due to the negligent driving of a motor car. The plaintiff had been hit while riding a bicycle. The action was brought outside of a three year limitation period and the statute was pleaded. The plaintiff then tried to mend his hand by applying to the court to amend his statement of claim so as to frame his action for damages in trespass to the person, the argument being that the relevant limitation period for such an action would be six years. The statutory provision which the learned judge had to consider was similar to the provision considered by Morris P. It appears to have been accepted in argument that an action for damages would not lie for unintentional trespass to the person in the absence of negligence. The judge was unimpressed by arguments based on the old forms of action and in particular on the distinction that the ordinary action for negligence is an action on the case and therefore only actionable on proof of damages whereas an action of trespass is actionable per se . He pointed out that in the case of unintentional trespass no action lay in the absence of negligence and he considered that the word " negligence" in the relevant statutory provision should be regarded as a non-technical expression embracing both types of action. If his judgment had ended there it would not have been particularly relevant to this case because what is alleged in this case is intentional trespass and not unintentional trespass. But the learned judge went on to express the view that even if he was wrong in that interpretation he would " see no sufficient reason for excluding such an action from the description of an action for damages for breach of duty, especially when it is provided that the duty may be one existing independently of any contract or any provision made by or under a statute." The learned judge went on to opine that all torts arose from breach of duty, the tort of trespass to the person arising from the breach of a general duty not to inflict, direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse.

Letang v. Cooper cited above was the next case in which the point arose. In the High Court, Elwes J. rejected the contention that the action for damages for trespass to the person is an action for breach of duty. He traced the respective historical origins of the action on the case and the action for trespass and he pointed out that in negligence the plaintiff has no action until he proves a particular duty owed to him by the defendant and a breach of that duty resulting in damages sustained by him. He went on to point out that in trespass the plaintiff was not concerned to prove the breach of a particular duty. The learned judge accepted that it could be said that a defendant in trespass to the person must always be proved to have been in breach of a general duty not to inflict injury on anybody but that was " not to use the language of precision as known to the law". The judge observed that to construe the words " breach of duty" in any sense less precisely definable was to evade the obligation which devolved on the court to interpret a statute in accordance with the law and that that obligation had " especially peremptory character when a statute of limitation is under consideration, since the purpose of such an Act is to cut down rights at common law. It must be strictly construed much as a penal statute is." As I have already mentioned the Court of Appeal took a diametrically opposite view but there were nuances of difference between the judgments of Lord Denning and of Diplock L.J. It should perhaps be explained that the facts of that case were that the plaintiff was staying at an hotel and was sunbathing on a plot of grass where cars were parked when she was run over by a car due to negligent driving. Lord Denning characteristically expressed a strong aversion to any relevance being attached to the distinction between the old forms of action of trespass and case. The former Master of the Rolls expressed the view that the true division of causes of action in modern times was on the one hand actions for intentional harm and on the other actions for unintentional harm. He accepted a decision in Fowler v. Lanning [1959] 1 All E.R. 290 in which Diplock J. had held that negligence was a necessary ingredient in an action for unintentional trespass but he expressly went a step further by stating that in his view the only cause of action is negligence and not trespass in such a situation. Again, of course that part of his judgment is not strictly relevant to this case because this is a case in which intentional trespass is claimed. Lord Denning, however, went on to give an alternative basis for his judgment. He said that if he had been wrong in the view he had taken, then he was of the view that a trespass to the person action was covered under the expression " breach of duty" He expressly approved of the judgment of Adam J. in Kruber v. Grzesiak cited above. Diplock L.J. in his judgment gave the example that if A by failing to exercise reasonable care inflicts direct personal injuries on B it is permissible to describe that factual situation indifferently either as a cause of action in negligence or a cause of action in trespass and the action brought to obtain a remedy for this factual situation as an action for negligence or an action for trespass to the person. When the trespass is unintentional Diplock L.J. was of the view that there are not two causes of action but rather two apt descriptions of the same cause of action. The learned judge then went on to hold in the alternative that trespass to the person is at any rate a breach of duty. It is a breach of a duty not to inflict direct injury to the person of anyone but by its very nature it is owed only to those who are within range which as Diplock L.J. put it are " a narrower circle of Atkinsonian neighbours than in the tort of negligence". Diplock L.J. therefore came down strongly in favour of the wide interpretation of the expression " breach of duty" .

When Stubbings v. Webb came before the English Court of Appeal Bingham L.J. delivered the main judgment. He pointed out that all three judges of the Court of Appeal in Letang had construed the statutory language as embracing a claim based on unintentional and intentional trespass to the person and that he considered the Court of Appeal's ruling to be binding but he went on to make clear that he fully agreed with the decision. Nolan L.J. and Sir Nicholas Brown-Wilkinson V-C took a similar view.

8. I now turn to the decision of the House of Lords which was adopted by the President and in which the Court of Appeal was reversed. As I have already mentioned, the opinion of the court was delivered in a speech of Lord Griffiths. It is only fair to say that a large part of that speech was taken up with the legislative history of the Law Reform (Limitation of Actions etc.) Act, 1954 in England, the point being that that Act had adopted recommendations of a committee headed by Lord Tucker and that it was clear from the Tucker Committee Report that trespass to the person actions would not have been included in the expression " breach of duty" . Even though one might reasonably argue that the relevant statutory provision which first appeared in our law in the Statute of Limitations, 1957 was a copy of the English statutory provision I would think it a doubtful exercise to take into account English legislative history especially as Lord Griffiths to some extent relied on the modern House of Lords practice of reading Hansard. As I do not find it necessary to do so, I am expressing no opinion as to the extent, if at all, to which this court could consider English legislative history in construing an Irish statute. But the passage of the speech of Lord Griffiths which is relevant appears towards the end and is at p. 508 of the report and reads as follows:-

"Even without reference to Hansard I should not myself have construed breach of duty as including a deliberate assault. The phrase lying in juxtaposition with negligence and nuisance carries with it the implication of a breach of duty of care not to cause personal injury, rather than an obligation not to infringe any legal right of another person. If I invite a lady to my house one would naturally think of a duty to take care that the house is safe but would one really be thinking of a duty not to rape her."

9. Subject to a small proviso I find myself in agreement with that passage of Lord Griffiths. I would prefer if the words " particular breach of duty" had been used rather than " breach of duty of care" . A breach of a duty of care is really the same thing as negligence. But the law of tort traditionally recognised particular breaches of duty which were governed by their own principles rather than by Donoghue v. Stevenson . The Rylands v. Fletcher duty, the duty to an invitee at common law and the absolute duty in respect of dangerous goods or articles are all examples of breaches of duty which would not always be accurately described as breaches of duty of care but which nevertheless clearly come within the statutory provision. But I cannot accept that a breach of some general duty not to commit a civil wrong of any sort could come within the expression " breach of duty" in the statutory provision which clearly has to be interpreted in the context of the words next to it i.e. negligence and nuisance. A breach of contract is, of course, also included but that is perfectly logical as that does not arise from a general duty but rather from a particular duty undertaken by a promise to another party. A breach of statutory duty is clearly analogous to a breach of a common law duty of care. I would, therefore, find myself in agreement with the House of Lords and with the learned President.

10. Since the House of Lords decision, the Court of Appeal of the Supreme Court of Victoria in a case of Mason v. Mason , judgment delivered 23rd of July, 1996, disagreed with the House of Lords and reaffirmed Kruber v. Grzesiak . It is clear therefore that there are two perfectly legitimate viewpoints on this question but, for the reasons which I have given, I favour that taken by the former President of the High Court based on the decision of the House of Lords and in particular the dicta of Lord Griffiths cited above and I would, therefore, dismiss the appeal.

11. I should make it clear that my judgment is based on the claim being one of intentional trespass. I am expressing no opinion on what the situation would be if the claim was for unintentional trespass. While the view that such an action should be treated as an action for negligence is attractive because it forestalls an anomaly, it seems clear from the treatment of the subject in McMahon and Binchy - "The Law of Torts" that the law relating to unintentional trespass is not settled in Ireland. Not only would there be the question as to whether negligence is an essential ingredient but also the question as to the onus of proof in relation to such negligence. As far as I am aware the decision in Fowler v. Lanning has not been considered in the Irish courts.