Callanan v Minister for Finance

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 06 December 2000
• Neutral Citation: [2000] IEHC 206
• Date: 06 December 2000
• Court: High Court
• Docket Number: No. 290SP/2000

[2000] IEHC 206

THE HIGH COURT

No. 290SP/2000

CALLANAN v. MINISTER FOR FINANCE

IN THE MATTER OF THE GARDA SIOCHÁNA COMPENSATION ACTS1941 AND 1945

BETWEEN

YVONNE CALLANAN

APPLICANT

AND

THE MINISTER FOR FINANCE

RESPONDENT

Citations:

GARDA SIOCHANA (COMPENSATION) ACT 1941 S10(1)(a)(iv)

GARDA SIOCHANA (COMPENSATION) (AMDT) 1945 S2(2)

GARDA SIOCHANA (COMPENSATION) (AMDT) 1945 S2(3)

GRAND JURY (IRL) ACT 1836

GARDA SIOCHANA (COMPENSATION) ACT 1941 S8(1)(d)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S10(1)

O'BRIEN V MIN FOR FINANCE (NO 1) 1944 IR 392

O'BRIEN V MIN FOR FINANCE (NO 2) 1946 IR 314

REID V MIN FOR FINANCE UNREP BUDD 29.7.1996 1996/14/4503

O'LOONEY V MIN FOR PUBLIC SERVICE 1986 IR 543

CIVIL LIABILITY ACT 1961

MCKINLEY V MIN FOR DEFENCE 1992 2 IR 333

COPPINGER V WATERFORD CO COUNCIL 1998 4 IR 243, 1996 2 ILRM 427

O'CONNELL V TIPPERARY CO COUNCIL 1921 2 IR 103

Synopsis:

Garda Siochana

Garda Síochána; assessment of damages; non-financial element of claim for damages made by dependants of deceased member of An Garda Síochána; s. 10 (1)(a)(iv), Garda Síochána (Compensation) Act, 1941, as substituted by s. 2 (2), Garda Síochána (Compensation) (Amendment) Act, 1945.

Held: Damages awarded; amount of compensation available under this head of damages is not limited to pecuniary loss; amount must be reasonable in all the circumstances; amount must be somewhat less than general damages, but should be generous; compensation is not limited to amounts which would be available under the heading of mental distress in the Civil Liability code; assistance may be derived from cases dealing with such concepts as consortium or solatium.

Callanan v. Minister for Finance - High Court: O'Sullivan J. - 06/12/2000

The applicant brought these proceedings under the Garda Compensation Acts. The applicant was the widow of a garda who had suffered fatal injuries in an arson attack. In this application the court had to assess the amount of compensation payable as in regard to the loss (other than financial loss) sustained by the applicant. Counsel disagreed on the basis upon which such sum should be calculated. O’Sullivan was satisfied that there was no jurisdiction to grant an award of general damages. There was however jurisdiction to award an amount which was reasonable in all the circumstances. O’Sullivan J therefore made a number of awards in respect of the applicant and her children.

O'Sullivan J.

INTRODUCTION

1 In the early hours of Wednesday the 21st of July 1999 the late Sergeant Andrew Callanan met his death in horrific circumstances when he was engulfed in flames while attempting to contain an arsonist at Tallaght Garda Station. He was rushed to nearby Tallaght Hospital but was pronounced dead at 5.31 a.m. I am told criminal proceedings are pending in connection with this event.

2 The Applicant is Sergeant Callanan's widow and she brings these proceedings on the authorisation of the Minister for Justice Equality and Law Reform on her own behalf and on behalf of her three children namely Stephen, who was 5½ in July 1999 and her twin daughters Jennifer and Sophie, who were then 2½.

3 The other dependants of the late Sergeant Callanan are his father Denis and his sisters Helen, Rita, Siobhan, Kate and Mary. These have all executed waivers in favour of the Applicant and her three children.

4 The parties have reached agreement on the financial loss and special damage elements of the claim and, having heard evidence from Brendan Lynch, actuary, I have made an interim award in the sum of £644,900, apportioning £527,900 to the Applicant, £36,000 to Stephen and £40,500 to each of the twins Jennifer and Sophie.

5 This Judgment deals, accordingly, with the sole head of damages identified at Section 10 (1) (a) (iv) of the Garda Siochána (Compensation Act,1941) (hereinafter the 1941 Act) as substituted by Section 2 (2) of the Garda Siochána (Compensation) (Amendment) Act1945(hereinafter the 1945 Act). Section 10 (1) (a) (iv) of the 1941 Act as amended where relevant provides

"(a) the compensation shall be such sum as the Judge thinks reasonable having regard to all the circumstances of the case and, in fixing the amount thereof, the Judge, in addition to the matters which he is required by Subsection (3) of this Section to take into consideration, shall - … (4) have regard to any loss (other than financial loss) sustained by the Applicant…"

6 The matters to which the Judge must have regard under Subsection (3) relate to the entitlement of the Applicant to a state funded pension or similar in respect of the death or injuries in the case and to costs and expenses incurred in an application under the Grand Jury (Ireland) Act, 1836. Neither of these is relevant in the present case.

7 Accordingly, my task is to assess compensation in such a sum as I think reasonable having regard to all the circumstances of the case and in fixing that amount I must have regard to any loss (other than financial loss) sustained by the Applicant.

8 The parties are represented by experienced Counsel who are in disagreement not only as to any sum under this heading but also as to the basis upon which such sum should be calculated. Accordingly a review of the law is necessary.

THE LAW

9 The Act of 1941 required the Judge hearing an application for compensation to be satisfiedinter alia, that the Applicant had suffered loss by the death in question (see Section 8 (1) (d)). Compensation was to be awarded "in accordance with this Act" and Section 10 (1) set out general provisions which apply to fixing the amount of compensation in respect of a death. These referred to funeral and surgical expenses, the financial benefits which might reasonably be expected to have been received in the future by the Applicant but for the death, and any award made prior thereto.

10 There was no reference to the compensation being"such sum as the Judge thinks reasonable having regard to all the circumstances" as there was in the 1945 Act nor indeed to"any loss (other than financial loss) sustained by the Applicant".

11 InO'Brien -v- Minister for Finance (1) ( 1944: IR : 392) the Supreme Court held that any benefits actually received by the Applicants or to which they became entitled by reason of the death of the deceased should be taken into account in valuing the compensation and deducted therefrom if just and reasonable.

12 Furthermore, the compensation was limited to pecuniary loss suffered by the Applicants. Sullivan C.J. (at page 403) said

"Compensation in the case of the widow, for loss of her husband, in the case of the children, for loss of their father, and in the case of both, for the break-up of the home and loss of parental guidance, help and other advantages, should be taken into consideration only in so far as the Court reasonably anticipates that pecuniary loss would be likely to result therefrom." (Emphasis added.)

13 The 1945 Act was enacted in response to this decision and explicitly reversed the effect of the first of these findings with the result that the bequests and such like under a will were to be disregarded and went on, as I have indicated, to stipulate that Compensation should be"such sum as a Judge thinks reasonable having regard to all the circumstances of the case…" and require the Judge in fixing the amount thereof to have regard, inter alia, to "any loss (other than financial loss) sustained by the Applicant."

14 The 1945 Act made these amendments retrospective and provided for supplemental awards to correct the perceived shortcomings in the application of the earlier act. Accordingly Mrs. O'Brien brought a second case and inO'Brien -v- the Minister for Finance (2) ( 1946 : IR : 314) the then president Maguire P. applied the new Act and held, inter alia, at (p318) that the subsection to which I have referred enabled him to award compensation for the loss identified by the words quoted above from Sullivan C.J. inO'Brien (1) but without the limitation imposed by the words appearing in bold in the extract therefrom which I have cited above.

15 Accordingly the Court under the new Act is not confined to awarding compensation"only insofar as the Court reasonably anticipates that pecuniary loss would be likely to result" from the loss of a husband, father and homemaker. Maguire P. having reached his conclusion went on to say that he found the task of measuring this loss in terms of money extremely difficult. There were no standards to go on and there was (then) no reported case. Since then there have been reported cases and notably one unreported case namely Reid and Others -v- Minister for Finance (unreported : Budd J : 29th July 1996) where the learned Judge surveys many cases that assisted him in assessing the amount of compensation.

16 InReid Budd J. acknowledged that O'Brien (2) was the touchstone and considered that the application of the O'Brien (2) principles could be extended by further refinements; he acknowledged that there was no jurisdiction to grant an award of general damages. This is clearly binding on the High Court as an explicit decision of the Supreme Court in O'Brien (1) and in my view must be accepted as binding upon me notwithstanding the obiter dictum of Walsh J. in the Supreme Court decision in O'Looney -v- the Minister for the Public Service ( 1986 : IR:543: at page 546) where he says

"when one examines the structures of the Acts and compares the provisions made in respect of fatal cases and cases not resulting in death, it is quite clear that the intention of the Oireachtas was to put the members of the Garda Siochána in virtually the same position as persons who bring actions for death or personal injury caused by negligence".

17 I proposed to adopt the same approach as my learned colleague inReid but before attempting to summarise my approach to this case as a result, I must deal first with one specific submission...