Factual and Procedural Background
This case concerns an action brought by the Plaintiff against the Defendants for trespass to the person and negligence, seeking damages for personal injuries and loss arising from an alleged assault and battery occurring on 15th October 2010 at or about the Shambles, Tuam, Co. Galway.
The Defendants delivered a full Defence, admitting the incident but asserting that they and a family member were assaulted by the Plaintiff and acted in self-defence and defence of others, using reasonable force. They also pleaded contributory negligence and the defence of ex turpi causa non oritur actio.
The trial involved conflicting evidence and credibility challenges between the parties. The Court examined the context of the incident, including the location, the parties involved, their backgrounds, and the sequence of events leading to and during the affray.
The Defendants were charged with criminal offences related to the affray, but the trial collapsed and has yet to be retried. The Plaintiff suffered serious injuries, including a displaced fracture of the right patella, requiring surgical intervention and ongoing medical care.
Legal Issues Presented
- Whether the Defendants acted in self-defence or defence of others when using force against the Plaintiff.
- The applicability of the maxim ex turpi causa non oritur actio as a defence in the circumstances of this case.
- Whether the Plaintiff’s failure to pursue proceedings against a concurrent wrongdoer affects liability or damages.
- Whether the Plaintiff’s injuries were sustained at the pleaded locus in quo and the implications thereof.
- Whether an adverse inference should be drawn from the Plaintiff’s failure to call a key witness.
- The apportionment of liability and contributory negligence between the parties.
Arguments of the Parties
Defendants' Arguments
- The Defendants claimed they acted in lawful self-defence and defence of others, responding to an assault on their daughter and her boyfriend.
- They relied on the defence of ex turpi causa non oritur actio, arguing that the Plaintiff’s conduct barred or limited his claim.
- They contended that the Plaintiff’s failure to bring timely proceedings against a concurrent wrongdoer (Prionsias McComiskey) should impact the assessment of damages and liability.
- They argued the injuries were sustained at the Shambles as pleaded, and events in Vicar Street were extraneous to the claim.
- They sought an adverse inference from the Plaintiff’s failure to call a key witness, Eanna Donnellan.
Plaintiff's Arguments
- The Plaintiff asserted the assault and battery were unprovoked and excessive, exceeding lawful self-defence.
- He denied the applicability of the ex turpi causa defence, relying on statutory provisions limiting its scope.
- He submitted that the locus in quo pleaded was sufficiently broad to include Vicar Street.
- The Plaintiff disputed the drawing of an adverse inference regarding the absent witness, explaining procedural reasons.
- He argued that the Defendants’ force was disproportionate and constituted an unlawful assault and battery.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Whelan v. AIB [2014] 2 I.R. 199 |
Adverse inference from failure to call a witness. |
The Court considered whether an adverse inference was appropriate given the circumstances of the witness's absence and found the Plaintiff was entitled to rely on the witness’s statement already introduced. |
| Bergin v. Walsh & others [2015] IEHC 594 |
Adverse inference from failure to call a witness. |
Referenced in support of the Defendants’ submission; the Court applied the principles but did not draw the adverse inference here. |
| Fyffes PLC v. DCC PLC [2009] 2 IR 417 |
Explanation required to avoid adverse inference from witness absence. |
The Court applied the principle that a satisfactory explanation negates an adverse inference. |
| Holman v. Johnson (1775) 1 COWP. 341 |
Defence of ex turpi causa non oritur actio – no aid to plaintiff founded on illegal act. |
Considered in the context of the defence; the Court acknowledged its modern limitations and statutory modification. |
| Anderson v. Cooke [2005] 2 IR 607 |
Modern application and limits of ex turpi causa defence. |
The Court noted that the defence may be raised by the Court sua sponte but must be applied with caution. |
| Cakebread v. Hopping Brothers (Whetstone) Ltd [1947] Q.B. 641 |
Limits on ex turpi causa defence where statutory protections apply. |
Referenced to illustrate that the defence does not apply where it conflicts with statutory policy. |
| Ross v. Curtis (Unreported, High Court, 1989) |
Use of force in self-defence must be reasonable and not reckless. |
Applied to assess whether the Defendants’ use of force was lawful. |
| New South Wales v. McMaster [2016] 328 ALR 309 |
Defendant’s honest belief on reasonable grounds in self-defence is relevant. |
Considered in evaluating the Defendants’ state of mind and reasonableness of force used. |
| Cross v. Kirk [2000] EWCA Civ 426 |
Test for self-defence includes honest and reasonable belief. |
Referenced to support the assessment of the Defendants’ conduct. |
| Lindsay v. Finnerty, Kelly & the MIBI [2011] IEHC 403 |
Definition of concurrent wrongdoers and liability for same damage. |
The Court used this to determine whether the Defendants and a third party were concurrent wrongdoers. |
| McCarron v. O’Brien and Bradley and McCarron v. MIBI (Unreported, 2001) |
Apportionment of damages among wrongdoers causing independent damage. |
Applied to differentiate liability for distinct injuries caused by different parties. |
| The People v. Barns [2007] 3 IR 130 |
Constitutional limits on use of force and refashioning common law principles. |
Used to emphasize the constitutional protection of life and limits on tort defences. |
| Hackett v. Calla Associates Ltd [2004] IEHC 336 |
Modern application of ex turpi causa confined to egregious conduct barring recovery. |
Supported the conclusion that the defence is limited and should not bar the claim here. |
| Wasson v. Chief Constable, Royal Ulster Constabulary [1987] N.I. 420 |
Limits of ex turpi causa defence and contributory negligence in tort. |
Instructive on balancing the defence with the Plaintiff’s right to compensation. |
| Hall v. Herbert [1993] 2 S.C.R. 159 |
Scope of ex turpi causa in tort law for personal injury claims. |
Referenced to underline that tort claims for personal injury are generally not barred by the defence. |
| Iarnród Éireann v. Ireland [1996] 2 ILRM 500 (SC) |
Contributory negligence assessed on blameworthiness, not causation. |
Applied to determine the extent of Plaintiff’s contributory fault and damages reduction. |
Court's Reasoning and Analysis
The Court carefully examined the conflicting evidence and found the affray involved multiple parties, including the Plaintiff, Defendants, and others. The Court accepted that the affray began when the Plaintiff and an associate approached the Defendants’ family member’s car and called on a passenger to exit, causing damage to the car door. It rejected the Plaintiff’s version that the affray began with an unprovoked attack by the passenger with a baton.
Medical and Garda evidence supported that the most serious injury to the Plaintiff, a displaced fracture of the right patella, was sustained in Vicar Street, not at the initial locus, the Shambles. The Court found the Defendants were armed and inflicted the serious injury during the Plaintiff’s flight from the affray, rejecting their claims of being unarmed and uninvolved at that stage.
The Court held that the Defendants’ use of force in Vicar Street was disproportionate and excessive, inconsistent with lawful self-defence or defence of others. The force was more akin to retribution than defence.
Regarding the Plaintiff’s failure to call a key witness, the Court found that the witness’s statement had been introduced and used in cross-examination, providing an adequate explanation to avoid an adverse inference.
On the issue of concurrent wrongdoers, the Court held that the Plaintiff’s injuries caused by the Defendants and the third party were not all the same damage; the serious knee fracture was caused solely by the Defendants, while other injuries were caused by both parties. Accordingly, the Defendants and the third party were concurrent wrongdoers only for some injuries, with liability apportioned equally.
The Court considered the ex turpi causa defence and found it inapplicable given statutory modifications and constitutional protections. The Plaintiff’s claim was not barred but contributory negligence was appropriate.
The Court found the Plaintiff responsible for initiating the affray, which led to the events causing his injuries. The Plaintiff’s contributory negligence was assessed at 40%, reducing damages accordingly.
In assessing damages, the Court distinguished between soft tissue injuries and the serious knee fracture, awarding sums consistent with the injuries and medical evidence, while excluding effects of subsequent unrelated accidents.
Holding and Implications
The Court’s final decision was to find the Defendants liable for assault and battery causing the Plaintiff’s injuries, rejecting their self-defence claim in respect of the injuries sustained in Vicar Street.
Liability for some injuries was apportioned equally between the Defendants and the third party, who was deemed a concurrent wrongdoer, despite the Plaintiff’s failure to pursue proceedings against him.
The Plaintiff was found to bear 40% contributory negligence for initiating the affray, resulting in a corresponding reduction of damages.
The maxim ex turpi causa non oritur actio was held not to bar the Plaintiff’s claim but was relevant to contributory negligence assessment.
The damages awarded reflected the seriousness of the injuries, the contributory fault, and excluded consequences of subsequent unrelated injuries.
No new precedent was established; the decision applied existing legal principles concerning self-defence, concurrent wrongdoers, contributory negligence, and the limits of the ex turpi causa defence.