Historical Immunity of the State
At common law, the King / Crown represented the State and was immune from private civil claims. It was a principle that the King could do no wrong and was immune from suit in the courts, which were constituted is his name. It was assumed that the State succeeded to the immunity of the Crown, on the establishment of the Irish Free State in 1922, and subsequently on the reconstitution of the State under the Irish Constitution in 1937.
The remarkable effect of this principle was that the State was not liable for its civil wrongs. Furthermore, most persons in the service of the State are technically officers and accordantly are not employees. Therefore, to compound the anomaly of State immunity, the State was not liable vicariously for the acts of its officers at all, as they were not, strictly speaking, employees at all.
This position was recognised as increasingly anomalous in modern times. The effect of the principles was alleviated to some extent, by legislation. In road traffic cases, injured persons were permitted to recover against the Minister for Finance.
State Immunity Ended
In the famous case of Byrne v Ireland in 1969, the Supreme Court held that the immunity of the State was inconsistent with the Constitution. Sovereignty in Ireland lay with people and not the State. The State was subject to the law and the principle of Crown sovereignty was incompatible with the Constitution and therefore invalid.
The general approach in cases since the Byrne case has been to hold the State liable for the negligence of its employees and officeholders in the course of their duties. This is the case even though the State undertakes a wider range of activities through various entities and agencies.
The Supreme Court has held that the State (government department) may be liable for the negligence of the members of the Army, even in the course of active military duties. In contrast, the State/department has not been held to be vicariously liable for school teachers, because they are not employed by the State but by the school manager.
There are many areas of State function and activities, in relation to which the courts have been held that no duty of care is owed at all. The State is largely immune from civil action in the context of policymaking, international relationships and in the exercise of broad governmental functions.
This principle applies to the exercise of many public powers. In the area of policymaking and the exercise of many discretionary powers, the State does not owe a duty of care to individual citizens. In accordance with general principles of negligence, duties of care are owed in relatively defined circumstances where their actions affect directly a relatively small class of persons.
Constitutional Rights and Immunity
The extent to which the State may legislate for its own immunity is uncertain. There are many governmental and regulatory areas where a statute provides specifically that public authorities are immune from liability in the exercise of their functions. Such exemptions are likely to be valid, given that they largely confirm the common law immunity from liability for regulatory actions.
The right to take legal action is a key Constitutional right, which is essential to the protection of basic rights and interests. Wide-ranging immunities in relation to operational matters, where liability for negligence would ordinarily apply between private individuals, may be inconsistent with the Constitutional rights of citizens.
The Civil Liability Act reversed the common law immunity of public authorities in relation to the non-repair of public roads. Even though the legislation was passed over 50 years ago, the provision was never been commenced by ministerial order. A number of challenges been made to this inaction, However, the courts have effectively decided that the State was not obliged to remove the immunity even where uncommenced legislation provided for its abolition.
Foreign states enjoy very wide diplomatic immunities from civil wrongs and other civil obligations. The Diplomatic Relations and Immunities Act 1967 gives effect to the Vienna Convention on Diplomatic Relations and Vienna Convention on Consular Relations. Members of the diplomatic staff enjoy civil and criminal immunity. This does not apply to real property, succession and personal and commercial activities outside of their diplomatic functions.
The technical and administrative staff attached to diplomatic missions enjoy immunity from civil and criminal liability for acts within the course of their duties. They are liable for acts outside the scope of their duty.
Foreign states are generally immune from civil actions before the Irish courts The immunity may not apply in relation to the trading and commercial activities by the State concerned. Immunity is commonly waived by foreign states in other areas, where it could be asserted. The European Union, its agencies, officers and its employees have the requisite privileges and immunities necessary for the performance of their functions.
Discretionary State Powers
The courts are reluctant to second guess the actions of public authorities in the exercise of policy, strategic, high level and discretionary powers. Where public authorities have been conferred with powers and duties by legislation, the courts recognise that the laws which establish them intend that they should have the power to decide on priorities and on how scarce recourses should be allocated.
Accordingly, the courts have been reluctant to allow civil claims for damages for breach of public functions and duties, other than where there is a very immediate and proximate relationship between the claimant and the authority. This is more likely to be the case, the closer the decision is to the operational level.
In the 1970s and 1980s, the UK courts expanded the potential liability of public authorities in negligence. This was part of a more expansive approach to liability in negligence.
Since the late 1980s, the UK courts retrenched from this expansive approach and restated a traditional, narrower and more incremental approach. The Irish courts followed the expansive approach to liability in negligence and later adopted the narrower more restrictive approach.
Powers v Duties
The courts have distinguished between operational powers and duties and discretionary powers and duties. Where the power r duty is operational in nature, courts more readily impose a common law duty of care. In several leading cases, the principles of negligence were applied to Councils in performing operational functions, notably in the context of housing and building regulation functions in relation to specific properties.
Even in relation to operational functions, public authorities commonly have a significant amount of discretion as to whether to do or not to do, particular acts. Budgetary constraints limit the availability of resources and require choices. The more removed the decision is from the operational level, and the less likely there is to be a duty of care in negligence.
As is the case generally, there is a greater possibility of liability for a specific action done negligently, than for failure to act. Many schemes of legislation place duties on public authorities. However, in most cases, this does not create a duty of care in negligence, such that the failure to act, confers upon the intended beneficiaries of the duty, a right to damages for breach.
The greater the element of policy and discretion involved, the less likely the subject matter will be capable of being the subject of a negligence claim. If a public authority is entitled to exercise statutory discretion or not, it is likely to be immune from liability in negligence. However if the failure is so totally unreasonable so that there is no exercise of discretion at all, there is a possibility of liability in negligence
Where discretionary powers are in fact exercised, then there may be liability for negligence in their exercise ( e.g. undertaking inspections), notwithstanding that the failure to act would enjoy immunity.
The approach of Courts to Public Authority Liability
The courts have held public authorities liable for negligence in their capacity as managers of public housing, at least during the era of more expansive liability in negligence. The courts have considered in such cases whether the public authority had acted reasonably, and in particular, had taken reasonable steps to avoid predictable dangers. In such cases, the courts were willing in principle to apply ordinary principles of negligence.
The Irish courts have considered the liability of public authorities in the context of the general principles of negligence. There were a number of significant cases involving public authorities in the 1980s and 1990s. Where there was a relationship of proximity between the claimant and the public authority so that in the reasonable contemplation of the public authority, carelessness on its part might cause the plaintiff damage, liability for negligence arose.
Under this approach, the existence of a statutory duty or power did not negate a duty of care in negligence, that would otherwise arise from the relationship of the claimant with the authority. This did not imply that public authorities had any general duty of care in the exercise of their functions. It applied only where there were particular circumstances or sufficient proximity in the above sense.
It is not clear whether and if so, to what extent, the less expansive approach to liability in negligence may cause the Irish courts to retreat from holding public authorities liable in negligence in cases such as those above. Even under the reformulated and narrower approach to the application of negligence principles to new circumstances, it seems likely that public authorities will continue to be held liable to members of the public where there is a sufficient relationship of proximity.
Where the public authority exercises a more generalised decision making power, such as in granting or refusing planning permission, as opposed to operational dealings with specific individuals, such as in the provision of specific governmental services, there is less likely to be the requisite proximity. In a case involving an apparent failure to enforce and identify housing defects in the context of retention permission, the public authority was not held liable. This was not the purpose of the planning legislation.
More recent Irish cases have doubted the usefulness of distinguishing between policy and operational actions. The fact that the exercise of a power might confer a benefit on a person who would otherwise be deprived of it, does not create a duty. The facts in these cases may, however, point to the reasonable foreseeability of damage arising from an exercise of power and a degree of proximity between the plaintiff and the defendant which can render it just unreasonable to impose a duty of care. A body exercising public functions under public duty is not liable to private individuals unless the authority has committed a recognisable civil wrong.
Misfeasance of Public Office
Public authorities may be liable for misfeasance of public office. This is wrongful action by a public official, taken outside of his/herpowers and not done in good faith. The acts of a public authority may be wrongful and carry liability for damages for compensation where
- it involves the commission of a recognised civil wrong such as trespass, false imprisonment or negligence;
- it is motivated by malice or a desire to injure a person or is done for an improper purpose; it may be committed in two ways. The act may be performed by a public official either with targeted malice or with actual knowledge that it is committed without lawful authority.
- the officer or authority knows that it does not possess the power which it claims to exercise
It is not enough that the public authority has misinterpreted the law which regulates it in acting unlawfully. It must have done so knowingly in order for liability for misfeasance of public office to apply.
Misfeasance of public office has been found where the Gardai deliberately leaked information where there was some malicious and knowing abuse of power.
The common law evolved a policy basis for the immunity of judges, judicial and quasi-judicial functionaries. In other cases, legislation restated or confirmed the common law immunity
In certain cases, the relevant legislation expressly immunises the public authority from liability under the terms of the legislation itself. The Road Act has restated that no damages lie in respect of the failure to maintain a national road. Legislation in other areas such as post and telegraph, fire services, and financial services contain provisions may remove or limit claims for damages against the relevant public authority. Similar immunity applies to the exercise of functions under the health safety and welfare at work act, fire authorities, health and numerous other public authorities.
Courts and tribunal are immune from liability in respect of acts done in the exercise of their functions. Similarly, public bodies exercising judicial-like powers /functions, such as the Workplace Relations Commission and the Residential Tenancies Board is immune from liability provided that they act in good faith and within the scope of their powers. In some cases, these immunities are granted by legislation while in other cases they are covered by the common law immunity of courts and tribunals
Breach of Constitutional Rights
In recent years, the courts have been willing to grant compensation for a breach of constitutional rights by state authority. Earlier judicial views suggested that there was a general discretion for the courts to invoke the Constitution as a basis for framing civil claim. This view has less support in more recent time.
The more recent approach allows that claims based on breach of constitutional rights may arise where there the common law or statute fails to provide adequately for a constitutionally guaranteed right. In some cases, the courts have been will be willing to award exemplary damages for breach of constitutional rights.
In an infamous case involving the unlawful surveillance of journalist phones, the State was required to pay compensation and substantial damages for the unlawful breach of the constitutional right to privacy. Substantial damages were awarded against the Minister for Education case to a man who was severely autistic and never received primary education appropriate to his needs, in breach of his constitutional rights to primary education. Compensation has been awarded for more minor interference with constitutional rights, including unlawful action by immigration officers.
In some cases, the courts have ordered the payment of punitive or exemplary damages where there is has been an egregious violation of a Constitutional right. In a case where a strike closed a school for a very prolonged period, the INTO was held liable for exemplary damages, by reason of the deprivation of the Constitutional right to education.
In a case where the members of the Garda Siochana had unlawfully conspired to manufacture evidence of a person’s guilt, substantial damages were awarded; in excess of €2,000,000, where the claimant had spent 27 months in jail in consequence. The Supreme Court confirmed that an award of aggravated damages was appropriate to make an example of the wrongdoing which involved a deliberate abuse of State power.
Damages may be awarded under the European Convention and Human Rights Act. A person who suffers injury, loss or damage by reason of the contravention of the Convention, who has no other remedy in damages available, may institute proceedings to recover damages in respect of a contravention in the High Court or the Circuit Court. The court may award such damages as it considers appropriate.
In some cases, the State provides statutory schemes of compensation where a civil right or claim would not otherwise exist. The statutory scheme will provide for the terms of compensation. The purpose may be to ameliorate hardship rather than wholly compensate. In some cases, a tribunal or other authority is appointed to assess compensation.
EU States may be liable for loss and damage caused by failure to implement a Directive to enforce a directly enforceable EU right. The individual is to be entitled to compensation on the same principles and procedures as apply to a domestic claim.
It is a question of interpretation of the relevant statute as to whether a breach of statutory duty, whether by a private person or public authority gives rise to a claim on the part of a person who suffers loss or damage. It is ultimately a matter of interpretation of the legislation. Generally, the courts must find that the claimant is within a category of persons, for whose benefit the legislation was enacted.
Judicial review procedures allow for the possibility of a claim for damages to made in a challenge to the legality of public authority action. In appropriate cases, a claim for a civil wrong or for breach of constitutional rights may be made in the proceedings which challenge the legality of public sector action.
There are circumstances in which the exercise of statutory powers and functions constitute a defence for a public authority, to what otherwise would constitute a civil wrong. For example, where the authority is empowered by or under statute to undertake certain works, then works necessarily carried out under the statutory power will generally be exempted from constituting nuisance or trespass. However, if the actual works go beyond what the statute contemplates, then liability may arise.