Carey & Others (plaintiffs) v Minister for Finance

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Mary Irvine,
• Judgment Date: 15 June 2010
• Neutral Citation: [2010] IEHC 247
• Date: 15 June 2010

Carey & Ors v Min for Finance

IN THE MATTER OF AN GARDA SÍOCHÁNA (COMPENSATION) ACTS 1941 AND 1945

BETWEEN

MICHAEL CAREY

RICHARD O'CONNOR

MARTIN O'SULLIVAN

PLAINTIFFS

AND

MINISTER FOR FINANCE

DEFENDANT

[2010] IEHC 247

[No. 219 S.P./2009]

[No. 40 S.P./2009]

[No. 4465 S.P./2008]

THE HIGH COURT

GARDA SÍOCHÁNA

Compensation

Assessment - Exposure to risk of contracting infectious disease - Jurisdiction and role of Court in assessing claim - Onus of proof - Approach of Court in assessing claim - Test of recoverability - Test for determining causation - Affect of incorrect medical advice on causation - Obligation to award damages where liability and causation established - Factors for consideration in assessing damages - Affect of failing to mitigate loss on claim - Whether compensation ought to be awarded - Whether medical advice furnished incorrect - Quantum of compensation appropriate - Fletcher v Commissioners of Public Works [2003] 1 IR 465; O'Looney v Minister for the Public Service [1986] 1 IR 543 applied - Gavin v The Criminal Injuries Compensation Tribunal [1997] 1 IR 132; Reg v Criminal Compensation, Ex p Ince [1973] 1 WLR 1334; Harrington v Minister for Finance [1946] 1 IR 320; Majca v Beekil 682 NE 2d 253; Minister of Pensions v Chennell [1947] 1 KB 250; Crowley (inf) v AIB Ltd [1987] 1 IR 282 approved - McGee v Minister for Finance [1996] 3 IR 234; Wilkinson v Downton [1897] 2 QB 57; Forbes v Merseyside Fire [2002] EWCA Civ 1067 (Unrep, CA (Civ), 15/7/2002); Roswell v Prior (1701) 88 ER 1570; Scott v Shepherd (1773) 2 Wm BI 892; Cunningham v MacGrath Bros [1964] 1 IR 209; Breslin v Corcoran [2003] 2 IR 203 considered - Rules of the Superior Courts 1986 (No 15/1986), O 38 - Garda Síochána (Compensation) Act 1941 (No 19), ss 2, 5, 6, 7, 8, 9, 10 - Garda Síochána (Compensation) Act 1945 (No 1) - European Convention on Human Rights 4/11/1950, art 6 - Compensation awarded (2009/219SP, 2009/40SP, 2008/4465SP - Irvine J - 15/6/2010) [2010] IEHC 247

Carey v Minister for Finance

Facts: The plaintiffs brought test claims pursuant to the Garda Siochana (Compensation) Acts 1941-1945 seeking compensation for injuries maliciously inflicted on them. Each of the cases concerned an alleged fear of contraction of Hepatitis B, C or HIV. It was submitted on behalf of the plaintiffs that an application for compensation was a two-stage process, involving the Minister and High Court, where the former determined liability and causation which was then conclusive and binding on the latter. The respondent submitted that the Court had an independent function and was entitled to consider de novo whether the applicant's claim qualified for compensation. The plaintiff contended that the Court in measuring the damages to be awarded had to approach the issue of compensation based upon the conclusion of the Minister that the injuries were not minor in character. It was argued that the test for the recoverability of compensation was not the test of reasonable foreseeability in negligence, but rather a purposive approach to the interpretation of the statute itself was appropriate. The plaintiff argued that the Court had no jurisdiction to consider causation and the question arose of whether the injuries of the plaintiff were caused by incorrect medical advice subsequent to the malicious act.

Held by Irvine J. that the Court would make an order in each of the test cases that the applicant make discovery of all GP notes, consultant notes, hospital records and all test results. The Court fixed a date for the hearing of the test cases. The Court could not accept the submission of the plaintiff that the court could not be involved in issues of liability or causation. The approach to be taken by the Court in assessing damages in a case such as this was clearly set out in the Act. As to mitigation of loss, the Court had to take into account any failure on the part of the claimant to seek to obtain results of blood tests. The Court had to take a purposive approach to the Act.

Reporter: E.F.

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6

MCGEE v MIN FOR FINANCE 1996 3 IR 234 1997 1 ILRM 301 1996/6/1704

GARDA SIOCHANA (COMPENSATION) ACT 1941 S10(2)

WILKINSON v DOWNTON 1897 2 QB 57

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 2.10

MCMAHON & BINCHY IRISH LAW OF TORTS 3ED 2000 PARA 2.28

FORBES v MERSEYSIDE FIRE & CIVIL DEFENCE AUTHORITY & ORS UNREP 15.7.2002 2002 EWCA CIV 1067

ROSWELL v PRIOR 88 ER 1570

SCOTT v SHEPHERD 96 ER 525

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

GAVIN v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1997 1 IR 132 1996/4/1151

R v CRIMINAL INJURIES COMPENSATION BOARD, EX PARTE INCE 1973 1 WLR 1334 1973 3 AER 808

GARDA SIOCHANA (COMPENSATION) ACT 1941 S5

GARDA SIOCHANA (COMPENSATION) ACT 1941 S5(E)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S5(F)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)(iii)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)(i)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(1)(B)(ii)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S7

GARDA SIOCHANA (COMPENSATION) ACT 1941 S7(2)(C)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S8(2)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S2(1)(C)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S2(1)(C)(iii)

GARDA SIOCHANA (COMPENSATION) ACT 1941, IN RE; HARRINGTON v MIN FOR FINANCE 1946 IR 320

GARDA SIOCHANA (COMPENSATION) ACT 1941 S7(H)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S9

GARDA SIOCHANA (COMPENSATION) ACT 1941 S6(3)

GARDA SIOCHANA (COMPENSATION) ACT 1941 S10

O'LOONEY v MIN FOR PUBLIC SERVICE 1986 IR 543 1986/7/1454

CHERRY GUIDELINES FOR THE ASSESSMENT OF GENERAL DAMAGES IN PERSONAL INJURIES CASES 4ED 1998

MAJCA v BEKILL 1997 682 NE 2D 253 289 ILL APP 3D 760

FLETCHER v CMRS OF PUBLIC WORKS 2003 1 IR 465 2003 2 ILRM 94 2003 ELR 117 2003/22/4936

KENNEDY LIMITS OF PSYCHIATRIC EVIDENCE IN CIVIL COURTS & TRIBUNALS: SCIENCE & SENSIBILITY 2004 10 MLJI 17

GARDA SIOCHANA (COMPENSATION) ACT 1941 S2

PROSSER & KEETON PROSSER & KEETON ON THE LAW OF TORTS 5ED 1984

CUNNINGHAM v MACGRATH BROS 1964 IR 209

CROWLEY v ALLIED IRISH BANKS LTD 1987 IR 282 1988 ILRM 225 1987/5/1442

BRESLIN v CORCORAN & MOTOR INSURERS BUREAU OF IRELAND 2003 2 IR 203 2003 2 ILRM 189 2003/6/1316

HODGSON THE LAW OF INTERVENING CAUSATION 2008 12

RSC O.38 r8

1 Judgment of Ms. Justice Mary Irvine, dated the 15th day of June, 2010

Introduction

2 2 0.1 These are three separate actions which were listed together for hearing. The plaintiffs have each brought claims under the Garda Síochána (Compensation) Acts 1941 - 1945 ("the Acts") seeking compensation for injuries maliciously inflicted on them in the course of their duties. I directed that these three cases be heard together because each of them concerns an alleged fear on the part of the plaintiff of contracting Hepatitis B (HBV), Hepatitis C (HCV) and/or Human Immunodeficiency Virus (HIV) infection and it was felt that it would be desirable for the Court to have the benefit of expert evidence in relation to the risks of contracting these diseases in an occupational setting such as An Garda Síochána. It was intended that these claims would serve as test cases to enable the Court to obtain a better understanding of these viruses, the true risk of their transmissibility and also to try to identify the principles to be applied when awarding compensation in what I will describe as "fear of disease" cases brought pursuant to the Acts. A more complete account of the reasons which informed the Court's thinking in directing the trial of these claims on oral evidence is to be found in the appendix to this judgment which records my observations to the relevant parties on 9 ^th November, 2009. As can be seen from those observations, I was concerned that in a number of recent fear of disease cases that the advice given to the Gardaí by their general practitioners and/or the doctors at the hospitals which they attended post assault was at variance with the advice which had been given to this Court by specialists in the area of infectious diseases in other cases.

3 3 0.2 Having considered the evidence, I am satisfied that there are a number of factors contributing to the increasing prevalence of fear of disease claims being maintained under the Acts. They are as follows:

4 (i) a lack of up-to-date knowledge regarding the HIV and HCV viruses and their susceptibility to treatment;

5 (ii) an absence of a real understanding as to the circumstances in which blood testing and/or the imposition of restrictions on unprotected sexual relations are warranted following potential exposure; and

6 (iii) a grossly inflated view of the possible risk of transmission of these viruses.

7 Unfortunately, from the evidence, it seems that the lack of knowledge to which I have referred does not confine itself to members of the public, or as in these cases the members of An Garda Síochána ("members"), but also regrettably permeates the medical profession itself at many levels.

8 4 0.3 Prof. Samuel McConkey is a Consultant in Infectious Diseases and Tropical Medicine and General Medicine in Beaumont Hospital in Dublin; a Consultant in Our Lady of Lourdes Hospital in Drogheda and Head of the Department of Tropical Medicine in the College of Surgeons. He was retained by the defendant in the present proceedings on foot of the Court's direction. Dr. Gerard Sheehan is a Consultant Physician specialising in Infectious Diseases at the Mater Hospital and was retained on behalf of the plaintiffs to advise the Court in relation to the possibility of transmission in each of the three cases before the Court and also in relation to those categories of injuries set out by the Court in its directions of 9 ^th November, 2009. I believe it will be...