ABSTRACT
In GE v Commissioner of An Garda Síochána, Ireland’s Supreme Court answered the following question: Can P recover substantial (rather than nominal) damages for false imprisonment where, had P not been unlawfully detained by D, P could and would have been lawfully detained by D for the same period, under identical conditions? This question has recently been authoritatively addressed by the UK’s Supreme Court (Lumba v Secretary of State for the Home Department) and Australia’s High Court (Lewis v ACT). Both courts answered the question in the negative, awarding P only nominal damages. In GE, Ireland’s Supreme Court unanimously diverged from Lumba and Lewis, making a small substantial award of €7,500. Hogan J delivered the only judgment. Here, I argue that Hogan J’s grounding of the Court’s conclusion in the value of ‘liberty’ is insecure absent further specification of the relevant sense of ‘liberty’ at issue. I distinguish two conceptions of liberty, suggesting the Lumba–Lewis approach has obvious appeal on one such conception, but not the other.
Gilligan, Daniel, Damages and the ‘Essence’ of False Imprisonment (August 5, 2024), Legal Studies (2024, forthcoming).
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