The Court of Appeal has increased a damages award for a man who had his constitutional right to earn a livelihood infringed by a trade union.
The man had received €15,000 from the High Court in the quantum hearing. However, the Court of Appeal held that the trial judge had erred in a number of respects.
It was held, inter alia, that the award of general damages was too low and should have included damages for loss of opportunity. Further, it was held that the plaintiff was entitled to exemplary damages but was not entitled to aggravated damages.
The plaintiff was a block layer who had worked as a sub-contractor for different State builders. He held a C2 certificate from Revenue, which allowed him to work as a self-employed sub-contractor on building sites.
The plaintiff later attempted to join the Building and Allied Trades’ Union, which held a monopoly position in the Limerick area, where the plaintiff worked. BATU limited its membership to employees of building contractors and it was therefore a requirement that members did not hold a C2 certificate.
Only members of BATU were engaged by building contractors at the relevant time, meaning that it was necessary for the plaintiff to become a member. However, even though his C2 certificate lapsed, the plaintiff was never granted full membership of BATU.
He later brought High Court proceedings against BATU and three named officials, claiming that BATU prevented him from working, had intimidated him and that he had been blacklisted. He also claimed that his constitutional right to work had been infringed.
In 2014, the High Court determined that the plaintiff had been wrongfully excluded from BATU and that his right to earn a livelihood had been breached. On appeal, the Court of Appeal in 2016 upheld this decision. The matter was then remitted back to the High Court for an assessment of damages.
In 2018, Mr Justice Tony O’Connor assessed general damages at €15,000 for the established breach of the plaintiff’s rights but refused all other claims for damages. These included claims for exemplary and aggravated damages, as well as a claim for loss of opportunity. In an ex tempore judgment, the court held that the plaintiff had failed to provide adequate particulars/evidence of his alleged loss of earnings and loss of opportunity. The trial judge also determined that the plaintiff was not entitled to his full costs for the proceedings.
The plaintiff appealed the judgment.
Court of Appeal
Delivering judgment in the case, Ms Justice Ann Power began by outlining the general principles relating to damages for breach of a constitutional right. In particular, the court stressed that the right to earn a livelihood was not the same as a right to generate an income. As such, there was nothing in the 2016 appeal judgment which stated that damages were to be confined solely to special damages, which had to be quantified and proven. Instead, the plaintiff was entitled to damages by reason of the breach of rights and damages for all losses flowing from the breach.
Considering the plaintiff’s claim for loss of earnings, it was held that the plaintiff did not provide adequate evidence of his alleged financial losses. The plaintiff did not adduce evidence of his net lost income arising from the breach of his rights. While it was unfortunate that the plaintiff was a litigant-in-person, he had to be held to the same evidential standards as other litigants.
It was held that, even if the trial judge had probed further into the probable income of block layers, he was not likely to have been able to accurately calculate the plaintiff’s losses (Da-Silva & Ors v. Rosa Constructors S.A. t/a RAC Contractors  IEHC 732 considered).
However, the court held that the trial judge was wrong to exclude damages for loss of opportunity. It was held that the trial judge had taken the view that the plaintiff was required to vouch his loss of opportunity and had failed to do so. The court stated that this was incorrect because it had already been established in the 2016 appeal ruling that the plaintiff had lost a number of jobs from BATU’s conduct. Accordingly, the trial judge was not entitled to disregard the evidence of lost opportunity that had already been provided in the case.
Citing Leidig v. O’Neill  IECA 296, the court said that loss of opportunity can be taken into account when considering general damages. It was also noted that the trial judge was not involved in the original High Court hearing on liability, which highlighted a weakness with modular trials.
The trial judge should have also awarded exemplary damages, the court said. It was held that the trial judge “paid insufficient attention to the seriousness of the respondent union’s wrongdoing” and the “obvious humiliation” visited on the plaintiff. The High Court had previously held that the union’s conduct was “audacious and stigmatising.” The judge did not adequately review the basis for the claim for exemplary damages, the court held.
It was held that a closer examination of the original High Court judgment would have led the trial judge to award exemplary damages. No specific loss was required to be identified by the plaintiff in order to receive such damages.
The court then considered whether aggravated damages should be awarded. It was held that there was a strong overlap between the exemplary and aggravated damages contended for by the plaintiff and that it would be disproportionate to award both sets of damages. Although the conduct of the union was “shameful,” the lack of an apology was not sufficient to ground an award of aggravated damages.
The court then considered whether the plaintiff was entitled to an increase in general damages. The court considered awards in cases such as Kennedy v. Ireland  I.R. 587, Sullivan v. Boylan Contractors (No. 2)  1 I.R. 510 and held that the €15,000 award failed to sufficiently compensate the plaintiff for the full scope of the infringed right. Further, the court held that the trial judge failed to outline why that the breached right in the case was “far less severe” than other breached constitutional rights.
As such, the court held that it would award €22,500 in general damages and €7,500 in exemplary damages. On the issue of costs, the court held that the trial judge had erred by taking irrelevant matters into consideration, such as the plaintiff’s surprise to have succeeded.
Taking all matters into consideration, including the Court of Appeal’s previous rulings on costs, it was held that the plaintiff was entitled to 85 per cent of costs against BATU in the liability hearing and all his costs of the quantum hearing and appeal.