PROBLEM: (That word again). At least 112 people have fallen ill in Galway as a result of consuming polluted water from the public drinking water supply, The City Council supplies the water to the city and the County Council supplies the water to the county.

What is the legal position, of an injured person, arising in this situation?

ANSWER:

1. The City Council is a thing of statute. Although its powers and responsibilites are defined by statute it is settled law that it is answerable for wrongs it may commit, whether by commission or omission, in exercising its functions.

2. The evidence available (the Council has made admissions) shows that;

a) the public drinking water supply is polluted;
b) the Council supplied the water in its polluted state;
c) people fell ill as a consequence.

3. The Council is obliged in Irish statute law to supply clean and wholesome drinking water to the public. There are good reasons to believe that the admitted breach of statutory duty entitles injured persons to claim compensation on foot of the breach.

4. Separately, and in addition, the Council is a supplier of a “product� within the meaning of the Liability for Defective Products Act 1991.

5. Section 2 of the Act of 1991 reads “The producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product.�Damage includes personal injury.

6. Separately, and in addition, the Council appears to have committed a public muisance. There is a view that liability of this kind is strict, that is, without the obligation to prove, effectively, negligence on the part of the Council.

7. There appears to be evidence that the Council is liable to injured persons under the rule in Rylands v Fletcher (1866) LR 1 Ex 265. Under this rule anyone who brings on his land and collects there something, which, if it escapes, is liable to cause damage is strictly liable for any such damage occurring on its escape.

THE VIEWS AND COMMENTS EXPRESSED HEREIN ARE THOSE OF, AND PERSONAL TO, THE WRITER, AND ARE INTENDED FOR GENERAL DISCUSSION PURPOSES ONLY. THEY ARE NOT INTENDED TO BE RELIED UPON BY ANY PARTY. NO REPRESENTATION OR WARRANTY IS GIVEN AS TO THE ACCURACY OR CORRECTNESS OF SAME, NOR ARE THEY REPRESENTED AS CONTAINING (OR AS A SUBSTITUTE FOR) LEGAL ADVICE OR ASSISTANCE. NO LIABILITY WHATSOEVER (WHETHER IN CONTRACT, NEGLIGENCE, NEGLIGENT MISSTATEMENT OR OTHERWISE AT ALL) IS ACCEPTED TO ANY PERSON ARISING OUT OF ANY RELIANCE ON THESE VIEWS.

The facts are known and admitted. Frank Shortt, now aged 72, an accountant by profession and the owner of a nightclub in County Donegal, was framed by senior police officers on charges of facilitating drug dealing in his nightclub, for which he was convicted and sent to jail for 27 months in 1995. See HERE for a journalist’s account of the affair and its consequences.

Mr. Shortt appealed his conviction but the conviction was affirmed by the Court of Criminal Appeal (a fine element of IR£10,000 was remitted). Ultimately, due to events elsewhere, Mr. Shortt’s new lawyers gained access to evidence by which he could prove he was innocent and again appealed to the Court of Criminal Appeal where the State did not contest the appeal, See HERE for the fall-out.

In the events that happened, Mr. Shortt applied, as was his right and entitlement, to the High Court for compensation under statute for the miscarriage of justice of which he was the victim. He was awarded €1.9 million. See HERE for the judgement and HERE for evidence of his reaction.

Meanwhile his family, including his wife settled their claim for compensation against the police force and Ireland for the suffering they experienced as a result of the wrong done to Mr. Shortt. See HERE for a report. Significantly, the damages were expressly paid without any admission of legal liability by or on behalf of the police or Ireland.

He appealed to the Supreme Court. See HERE for the judgements and HERE and HERE for the outcome and HERE for a comment.

The police officers are at large. They have not been arrested, although they are no longer in the police. The most senior of them was permitted to retire and is currently in receipt of his pension.

The Supreme Court remarked caustically on the absence of any real apology from the State and particularly the police force. Now one has emerged; see HERE.

The State

The Supreme Court referred to the wrong done to Frank Shortt by the State. In fact the wrongs done to Frank Shortt were done by persons. No State can act other than by persons. Like commercial corporate bodies, a State is an abstraction, a myth.

For misplaced, but deeply human, conceptual reasons abstractions tend not to be judged by the same standards as persons. By a process of association, the agents of such abstractions often get the benefit of the privileged standards applied to their principals, the abstractions.

If the Irish State were to be undermined or destroyed, we could replace it. The State is not the fundamental element of social life; the community is.

Within the community there are differing and contending forces seeking, often, their own interests. In a democracy there is a concession from its members not to have resort to force to protect the interests being assailed by the opponents. Despite this, or because of it, on the part of the opponents there is a perennial drive and effort to co-opt the State, the highest secular abstraction, to the purpose of copper fastening the benefits of any such assault. This is, in effect, an assault on the State. The abstraction will be undermined if it is bent to that purpose.

On this view, it is not the State that is to be castigated when its mechanisms are abused; it is the individual members of society seeking to, or facilitating, such abuse.

Furthermore it is not possible to hold the State to account. We see this in Frank Shortt’s case; the compensation he is to get will be paid by the taxpayer. The taxpayer is not the State.

The real work in the Frank Shortt case is left undone; it is essential to, at a minimum, pass judgment on the persons who perpetrated the wrong done to Frank Shortt and any persons who became accomplices after the fact. To date, private persons, Frank Shortt and his lawyers, have done all the work. That should now be taken up and concluded by the Government.