Provisions for recovery from concurrent wrongdoers not unconstitutional


Iarnrod Eireann (Irish Rail) and Bernard Patrick Dowling (plaintiffs/ appellants) v Ireland, the Attorney General, Michael Diskin, Patrick Diskin and Giovanni Gaspari (defendants/ respondents).

Statute Whether provisions of statute unconstitutional Appellants jointly liable for accident Apportionment of 30 per cent against appellants Other wrongdoer unable to make any contribution to damages Whether statute unconstitutional in its effect on appellants Whether legislation must be rationally connected to object Whether legislation impaired rights disproportionately to the objects of the Act Purposes of statute Whether solution propounded by legislation for and just Civil Liability Act 1961 (No 41), sections 12 and 14.

The Supreme Court (before the Chief Justice, Mr Justice Hamilton Mr Justice O'Flaherty, Mr Justice Blayney, Mrs Justice Denham, Mr Justice Barringtun) judgment delivered 16 July 1996.

WHERE Irish Rail had been found to be 30 per cent liable for an accident and the other wrong doer, who was 70 per cent liable, was unable to make any contribution to the damages, it was alleged by Irish Rail that sections 12 and 14 of the Civil Liability Act 1961 were unconstitutional in that they impaired its rights disproportionately to the objectives they sought to promote and were unfair and unjust.

The Act was not unconstitutional as it was fair and just and marked an amelioration of the liability of concurrent wrongdoers from what was there before and for the Oireachtas to so legislate was within its competence.

The Supreme Court so held in refusing to declare sections 12 and 14 of the Civil Liability Act 1961 unconstitutional.

Murray Mc Grath SC, Paul Gallagher SC and Gerard Hogan BL for the appellants James Connolly SC, Patrick Hanratty SC and Brendan Grehan BL for Giovanni Gaspari Mary Finlay SC and Anthony Aston BL for the Attorney General.

MR JUSTICE O'FLAHERTY, delivering the judgment of the court, said that this was an appeal brought by the appellants from the judgment of the High Court refusing a declaration that sections 12 and 14 of the Civil Liability Act 1961 were unconstitutional. Having decided to dismiss the appeal the court declined to consider the issue of locus standi having regard to the conclusion it reached and the importance of resolving the issue with due expedition.

The background facts were that an action was brought by a Mr Gaspari arising out of a train crash in which an Iarnrod Eireann train collided with a herd of cattle belonging to Mr Patrick Diskin. Proportions of fault were fixed at 30 per cent against Iarnrod Eireann and 70 per cent against Mr Diskin. It was agreed on all sides that Mr Diskin was not able to make any significant contribution to the award of damages and the other claims were said to be likely to amount to £4 million.

Mr Justice O'Flaherty said that the essential thrust of the appellant's attack on the legislation was that in order for a legislative proposition to accord with the constitution it must be rationally connected to the objective sought to be achieved and not be arbitrary, unfair or based on irrational considerations it must impair any protected right as little as possible and its effects on rights must be proportionate to the objectives sought to be achieved.

Mr Justice O'Flaherty set out the impugned provisions of the Act. Section 12 provides that concurrent wrongdoers are each liable for the whole of the damages in respect of which they are concurrent wrongdoers. It also provides that the court may apportion liability between two or more persons who are not concurrent wrongdoers but who cause independent items of damage of the same kind to a third person. Section 14 provides that where judgment is given against concurrent wrongdoers who are sued together, the court may give judgment against the defendants together or separately and each judgment shall be for the full amount of the plaintiffs damages.

Mr Justice O'Flaherty said that the result of the Tortfeasors Act 1951 as replaced and elaborated upon by the 1961 Act was to ameliorate some of the hardship that defendants had previously endured. Prior to that legislation a judgment for damages against tortfeasors would have been for a single sum against all defendants and execution for the whole of this amount could, if the plaintiff saw fit, be levied against one only of the defendants. The defendant thus levied could not recoup against any of the other defendants, the general rule being that he could get neither an indemnity for the whole of what he had paid nor contribution of an aliquot part.

Mr Justice O'Flaherty referred to McMahon and Binchy Irish Law of Torts, 2nd edition 1990 where the three principles underlying part III of the 1961 Act were set out as follows:

(I)Subject to the rule that the plaintiff cannot recover more than the total amount of the damages he has suffered, the injured plaintiff must be allowed full opportunity to recover the full compensation for his injuries;

(2)Concurrent wrongdoers should be entitled to recover fair contributions from each other in respect of damages paid to the plaintiff;

(3)All matters relating to the plaintiffs injuries should as far as possible be litigated in one action.

Turning to the appellant's submissions, Mr Justice O'Flaherty said that the effect of their claim was that not only would sections 12 and 14 disappear but that the common law rules would be deemed not to have been taken over on the enactment of the constitution. It was submitted that section 38(2) provided the solution. That section provides that in a case where there has been contributory negligence on the plaintiff's part he is to have a several judgment for such apportioned part of his total damages as the court thinks "lust and equitable" having regard to each defendant's degree of fault.

Subsection (2) provides that ii, after taking reasonable steps, the plaintiff had failed to satisfy any judgment in whole or in part, he may apply for secondary judgments having the effect of distributing the deficiency among the other defendants in such proportions as may be just and equitable.

The appellant submitted that at this secondary judgment stage the whole case could be revisited and the trial judge could apportion some of the deficiency to the plaintiff on the basis that it would be just and equitable to do so. By analogy, the judge should have or be deemed to have a similar power in cases such as the Gaspari case.

Mr Justice O'Flaherty said that the court was emphatically unable to accept this construction of the subsection. The legislation provided that once a wrong was established, the wrongdoer or wrongdoers must take the consequences. The wrong done to the plaintiff was regarded as indivisible and as between the defendants it was provided that there could be an apportionment but if a deficiency had to be made up, it was better that it should be made up by someone in default than that a totally innocent party should suffer anew. Mr Justice O'Flaherty said that for the Oireachtas to so provide was within its competence in what was truly an area of policy.

Mr Justice O'Flaherty referred to Touhy v Courtney [1994] 3 IR 1 where it was said that when the court was involved in balancing rights the role of the courts was not to impose their view of the correct balance for that of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation was so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights. Rather than there being anything irrational or disproportionate about the legislation the court saw the solution propounded in the legislation as being fair and just.

Mr Justice O'Flaherty said that the possibility that one of a number of defendants may be insolvent was an unfortunate aspect of litigation that the risk should fall on other, solvent, defendants who were concurrent wrongdoers rather than on the plaintiff seemed to the court to be a solution that was in harmony with the core principles underlying civil liberty.

The court, therefore, concluded that it was not established that the sections were in any respect invalid having regard to the provisions of the constitution and the appeal was dismissed.

Solicitors Michael Carroll (Dublin) for the appellants Ferry's (Dublin) for Giovanni Gaspari Chief State Solicitor for the Attorney General.