David Foley v The Minister for Public Expenditure and Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Mary Rose Gearty |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] IEHC 257 |
| Docket Number | [2013 No. 392 SP] |
| Court | High Court |
| Date | 31 March 2021 |
In the Matter of an Garda Síochána (Compensation) Acts, 1941 and 1945
[2021] IEHC 257
[2013 No. 392 SP]
THE HIGH COURT
Damages – Assault – Psychiatric injury – Applicant seeking compensation for physical and psychiatric injuries – Whether there were clinical symptoms sufficient to diagnose anxiety disorder
Facts: The applicant, Mr Foley, suffered multiple physical injuries and a psychiatric injury as a direct result of a serious and sustained assault on his person in January of 2006. He brought a claim under the Garda Síochána (Compensation) Acts, 1941 and 1945 (the Acts) seeking compensation for those injuries. The injuries included physical and psychiatric injuries but the psychiatric injuries went untreated until they resolved, with the support of the applicant’s wife and family, at some point before 2014. The only issue in the case was the extent of the psychiatric damage involved. The applicant’s medical advisor had diagnosed Post Traumatic Stress Disorder while the respondent’s (the Minister for Public Expenditure and Reform) advisor initially took the view that there were insufficient clinical symptoms to make a diagnosis of any psychiatric injury but, having considered the reports anew, agreed that there were clinical symptoms sufficient to diagnose anxiety disorder, but no more.
Held by the High Court (Gearty J) that, given the multiplicity of physical injuries (nose, dental and facial) and considering the clinical diagnosis of anxiety disorder of at least one year’s duration (insofar as it would have been of much shorter duration had it been treated appropriately), it needed to award a sum that was reasonable and proportionate to the various injuries and that reflected the severity of the initial assault. Bearing in mind two comparators, Sheehan v Bus Éireann/Irish Bus and Or [2020] IEHC 160 and the application of Garda Carroll, a compensation claim Gearty J considered earlier in 2021, and considering the additional physical injuries and the specific clinical diagnosis in this case, it seemed to her that this case fell somewhere between those two awards, being less serious and of shorter duration than the first and more serious than the second both in terms of physical injuries and psychiatric injuries.
Gearty J held that a fair and reasonable sum, taking all those matters into account, was one of €45,000 and she would award that sum in general damages to date. She would also award €3,122.40 in respect of special damages and €1,500 for future dental treatment.
Damages awarded to applicant.
Judgment of Ms. Justice Mary Rose Gearty delivered on the 31 st day of March 2021 .
The Applicant suffered multiple physical injuries and a psychiatric injury as a direct result of a serious and sustained assault on his person in January of 2006. He has brought a claim under the Garda Síochána (Compensation) Acts, 1941 and 1945 (“the Acts”) seeking compensation for these injuries. The injuries include physical and psychiatric injuries but the psychiatric injuries went untreated until they resolved, with the support of the Applicant's wife and family, at some point before 2014.
The only issue in the case is the extent of the psychiatric damage involved. The Applicant's medical advisor has diagnosed Post Traumatic Stress Disorder [PTSD] while the Respondent's advisor initially took the view that there were insufficient clinical symptoms to make a diagnosis of any psychiatric injury but, having considered the reports anew, agreed that there were clinical symptoms sufficient to diagnose anxiety disorder, but no more.
In one way, this is a distinction without a difference in its effect on the assessment of damages. It is necessary for the Court to award damages to compensate the Applicant on the basis of the symptoms actually suffered as opposed to the formal diagnosis. In this case, physical injuries were inflicted on the Applicant and he is entitled to an award which compensates him, fairly and reasonably, in respect of those injuries and in respect of any psychological or psychiatric sequelae. The award in this case will, and must as a matter of law, encompass such sequelae as being part and parcel of the consequences of the assault on the Applicant.
The medical experts have both listed the symptoms suffered by the Applicant, there is no issue as to his credibility or as to the accuracy of the notes taken by either medic or by the first treating psychiatrist, save to say that the notes of the latter were insufficient to make a diagnosis on his notes alone. The effect of the oral evidence is that the Applicant's psychiatrist stands over his diagnosis of PTSD and the Respondent's psychiatrist, looking at very similar symptoms, has diagnosed an anxiety disorder.
It is not disputed that the Applicant was assaulted at a time when he was off duty. The facts provide a good example of a situation which comes within s. 2(1)(c)(iii) of the Acts, as the injuries were maliciously inflicted and appear to have been deliberately inflicted “ merely because of his being a member of the Garda Síochána.” It is accepted that he suffered injuries to his nose and tooth, with extensive bruising generally.
The Applicant was 20 years old in January of 2006 and was off duty in Sligo town, with friends, when a group of three men set upon one of his friends in an unprovoked assault. The Applicant produced his identification and made it clear that he was a member of An Garda Síochána. The man was either drunk, or high, or both and he was heard shouting that “ he always wanted to kick the shit out of a guard.” The Applicant received a flurry of punches into the face, was knocked off balance and fell to the road. His assailant knelt over him and struck a final blow into his mouth connecting with his front tooth, which went back into his throat. The Applicant then blacked out momentarily. He was told afterwards that his assailant's own associates had to pull the man away. The Applicant feared that he would be killed during this sustained assault.
The Applicant was taken to A&E, in considerable pain. He had suffered a fracture to his first incisor tooth, an un-displaced fracture of the nasal bridge and soft tissue injuries to his lip and eye. In a report from his general practitioner, 6 months later, the issue of psychological injures was first mentioned and the Applicant went to a psychiatrist in December of 2006. That psychiatrist has since died and the two psychiatrists who gave evidence saw the Applicant on various dates between 2012 and 2017.
The issue of psychological injuries in the context of Garda Compensation cases was discussed in the comprehensive judgement of Irvine J., as she then was, in Carey and others v the Minister for Finance [2010] IEHC 247. That judgment also confirms various propositions of law which are now widely accepted. The case was one in which multiple claims arose after various applicants had been exposed to potentially contaminated blood and feared that they might contract transmissible diseases.
The following principles, identified in Carey, are directly relevant to this case: Applications under the Garda Compensation Acts should be treated in the same way as personal injury cases generally, both in the assessment of appropriate damages and in terms of the law of torts generally. Thus, of the list outlined in Carey as being relevant to the assessment of psychiatric injuries, almost identical factors apply in this case, namely:
(i) the severity of the assault;
(ii) whether any general or specialised medical treatment was warranted and if so the nature and extent of same;
(iii) the injured members' ability to cope with life and work following their assault, including any time they may have spent out of work;
iv) the effects, if any, of the injury on the members' personal relationship with his/her family and friends;
(v) any restrictions imposed upon the member as a result of their injury;
(vi) the prognosis for the member and any future vulnerability that they may have a result of their assault; and
(vii) the extent to which the injured party has mitigated their loss.
Bearing in mind that this is the legal context in which the evidence should be considered, I turn to consider that evidence next.
The assault occurred in January of 2006. This was a serious and sustained assault, capable of constituting the basis for a psychiatric injury; the Applicant was punched repeatedly in the face, was beaten until he was unconscious and feared for his life. The reasonable plaintiff, even a robust plaintiff such as a member of An Garda Síochána or the defence forces, for instance, would be expected to find such an event more difficult than one in which injuries were accidentally inflicted. The first factor identified in Carey, therefore, is easily assessed in this case: this was a severe and violent assault, with an element of personal vindictiveness directed at the Applicant due to the very fact that he was a member of An Garda Síochána.
The court in Carey commented on the difficulty in assessing psychiatric damage with no objective, or observable signs. In that context, Irvine J. quoted, with approval, the following statement by H.G. Kennedy, in his article “Limits of Psychiatric Evidence in Civil Courts and Tribunals: Science and Sensibility” (2004) 10(1) MLJI 16, at p. 17:-
“… any clinician, and therefore any psychiatrist in the role of expert witness, can be wrong and can be deceived. In clinical practice, the psychiatrist's normal means of ensuring against being misled is never to rely only on the account of one person. Multiple...
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