Callan v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date05 February 2018
Neutral Citation[2018] IEHC 90
Docket Number2017 No. 107 JR
CourtHigh Court
Date05 February 2018

[2018] IEHC 90

THE HIGH COURT

Barrett J.

2017 No. 107 JR

Between:
NOEL CALLAN
APPLICANT
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Compensation – Injury – Order of certiorari – Applicant seeking compensation – Whether the respondent acted in a manner that was legally flawed

Facts: The applicant, Garda Callan, applied for a certificate of the respondent, the Minister for Justice and Equality, allowing him to apply to the High Court for compensation. His application was refused by the Minister under s. 6(1)(b)(i) of the Garda Síochána (Compensation) Act 1941 on the basis that his injury was “of a minor character”. Consequent upon that refusal, Garda Callan brought an application in which he sought, inter alia, the following reliefs: (1) an order of certiorari in respect of the said decision; (2) a declaration that Garda Callan is entitled to an authorisation to seek compensation in the High Court pursuant to the Garda Síochána (Compensation) Acts 1941 and 1945; (3) an order of mandamus directing the Minister to grant the authorisation applied for; and (4) in the alternative, an order directing the Minister to review Garda Callan’s application once more.

Held by the High Court (Barrett J) that the Minister acted in a manner that was bona fide, factually sustainable, reasonable and not otherwise legally flawed. Barrett J held that there was no basis in law on which the court could grant any of the reliefs sought by Garda Callan.

Barrett J held that all of the reliefs must be refused.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 5th February, 2018.
I
Introduction
1

When the risk of injury in service becomes an unfortunate reality, a garda officer may be eligible for compensation under the Garda Síochána (Compensation) Acts 1941 and 1945. Under those Acts an officer who suffers an injury not causing death is required, as a pre-requisite to coming to the High Court to make application for compensation, to apply for a certificate of the Minister for Justice, etc. allowing that officer to apply to the High Court for compensation. In this regard, s.6(1) of the Garda Síochána (Compensation) Act 1941 provides, inter alia, as follows:

‘Whenever an application is duly made to the Minister for compensation under this Act, the following provisions shall have effect, that is to say…

(b) if the application is in respect of injuries not causing death, then –

(i) in case the Minister is of opinion that such injuries are of a minor character and were sustained in the course of the performance of a duty not involving special risk, the Minister shall refuse the application…’.

2

In the case of Garda Callan, his application for permission led to a refusal issuing from the Minister under s.6(1)(b)(i) of the Act of 1941 on the basis that his injury was ‘ of a minor character’. That refusal was contained in a letter of 16th November, 2016 which issued to the solicitors for Garda Callan. Consequent upon that refusal, Garda Callan has brought the within application in which he seeks, inter alia, the following reliefs: (1) an order of certiorari in respect of the said decision, (2) a declaration that Garda Callan is entitled to an authorisation to seek compensation in the High Court pursuant to the Garda Síochána (Compensation) Acts, (3) an order of mandamus directing the Minister for Justice, etc. to grant the authorisation applied for, and (4) in the alternative, an order directing the Minister to review Garda Callan's application once more.

II
Nature of Within Proceedings
3

It is important to remember at the outset that these are judicial review proceedings; this is not an appeal. The law reports are replete with examples in which judges have spoken to the quite limited role of the court in such applications. In this regard, the court has been referred to the judgment of Looby v. Minister for Justice, Equality and Law Reform [2010] IEHC 411, another judgment of the High Court concerned with an application to the Minister under the Act of 1941, in which Hedigan J. made the following comments, at para. 6.1, which are representative of the legal orthodoxy concerning judicial review applications that, for good or bad, has hitherto pertained (and some would perhaps contend that too restrictive an approach has become the accepted norm):

‘The jurisdiction of the court in judicial review is a very limited one. The Court does not sit as a court of appeal. Even were it to disagree with the decision on the facts, made by the deciding body, it cannot interpose its opinion for that of the body specifically charged with making particular decisions because that would be to usurp the functions of such body. The court may only intervene on the basis of an identifiable error of law or the irrationality of the decision.’

4

At least two related observations might be made in this regard. First, in practice the distinction between the legality and the merits of a decision can be somewhat “ fuzzy”, especially when, for example, a decision is sought to be quashed on the basis, inter alia, that the decision-maker failed to take all relevant factors into account. If a decision is properly to be reviewable on the basis that it is not supportable on the relevant facts, then the court tasked with reviewing that decision will necessarily engage in an examination of the facts as understood (or misunderstood) by the decision-maker. Second, for a court to correct simple errors of fact, e.g., by stating that a historical event happened at 06:15, not 06:00, when all that the court is doing is recognising an unassailable objective truth seems legally unobjectionable. What is legally objectionable is where a court substitutes its vue du monde for that of the decision-maker.

The Facts in Some Detail

(i) The Injury Suffered.

III
5

On or about 26th August, 2011, Garda Callan was on duty in Swords, County Dublin. He was in the course of arresting individuals for public order offences when one of those individuals, who was both drunk and violent, lashed out with a kick that resulted in the fifth digit (the “little finger”) on Garda Callan's left hand getting caught in the door of a patrol car. Garda Callan was brought to hospital, the nail on his little finger was removed and some sutures (stitches) had to be made to the nail bed which was lacerated.

(ii) Averments as to Longer-Term Effect of Injury.

6

As a consequence of the injury Garda Callan was absent from work for one week and returned to indoor duties for two weeks. In his affidavit evidence before this Court, Garda Callan avers to certain longer-term consequences of his injury, inter alia, in the following terms:

‘6. In the aftermath of this injury, I suffered numbness, tenderness and hypersensitivity in my finger. Simple tasks such as driving, writing[1] and carrying out domestic chores, such as making a bed, dressing myself and so forth or doing anything that impacted my finger no matter how lightly caused me to experience sharp pain and exquisite tenderness in the finger-tip.

7. I believe that it took 8 months before the sensation in my fingertip came anyway back to normal and for the tenderness and hypersensitivity to resolve to a bearable degree. I say and believe that to date I still suffer tenderness and a numb sensation in the fingertip especially if I touch anything and in cold weather. Tasks such as putting my hand in my pocket require care to avoid jabbing my fingertip. I say and believe that I have been left with a permanently compromised fingernail which although it is grown back, is deformed in appearance and has an irregular shape.’

[1] The court understands from counsel that this is a reference to typewriting; Garda Callan is right-handed and it is difficult to see how an injury to his left little-finger could have affected his writing ability.

(iii) Medical Evidence as to Injury.

7

The court has read the medical evidence and does not propose to recite it in any detail. The doctor engaged by Garda Callan states, inter alia, as follows:

‘The nail which had been avulsed in the accident grew back but it had grown back in an irregular shape…. This cosmetic deformity is visible at conversational distance but as such should not interfere with his occupational, domestic or recreational lifestyle in the future.

It is likely however that the odd appearance of his nail will provoke questions on occasion…. I would describe it as a permanent, albeit minor cosmetic blemish which has resulted…[directly] from the injury sustained on the 26th August 2011.’

8

The doctor engaged by An Garda Síochána takes a more robust view of matters, offering, inter alia, the following view:

‘In my opinion Garda Callan has essentially made a full recovery from the laceration to the nail bed and fingertip of his fifth finger on his non dominant left had with no residual functional impairment or cosmetic impairment and no long term sequelae of significance following the acute treatment he received with sutures in the Emergency Department after the injury in August 2011.’

9

Counsel for Garda Callan placed some emphasis on the assertion in the last-quoted text that Garda Cullen has ‘ essentially’, i.e. not totally, ‘ made a full recovery’. The court does not accept the implicit contention, if such is made, that total recovery from a particular injury must ensue before such injury can properly be described as minor. Moreover, it seems to the court to be important to read the last-quoted paragraph as a whole, in particular the reference to Garda Callan having ‘ no residual functional impairment or cosmetic impairment and no long term sequelae of significance’; those it seems to the court are precisely the kind of observations which might yield the rational, reasonable and lawful conclusion that the injury to which such commentary relates was and is minor in character.

(iv) The Department's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT