Flanagan v The Minister for Public Expenditure and Reform
| Jurisdiction | Ireland |
| Judge | Mr. Justice Bernard J. Barton |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] IEHC 208 |
| Docket Number | [2010 No. 8565 S.P.] |
| Court | High Court |
| Date | 23 March 2018 |
[2018] IEHC 208
THE HIGH COURT
Barton J.
[2010 No. 8565 S.P.]
IN THE MATTER OF THE GARDA (COMPENSATION) ACTS, 1941 AND 1945
Compensation – The Garda (Compensation) Acts, 1941 and 1945 – Pecuniary loss – Personal injuries – Assault.
Facts: The applicant sought an order for compensation in respect of personal injuries and pecuniary loss arising as a result of an assault. The applicant contended that the assailant had acted maliciously and for that the applicant sustained an injury and loss. The nature, extent and causation of the injuries and loss were an issue between the parties.
Mr. Justice Bernard J. Barton held that the applicant was entitled to be compensated for the physical and psychological injuries, including the loss of amenity, together with the pecuniary loss ascertained that had been caused by the assault. The Court considered a reasonable sum to be compensated to the applicant for the injuries and for the future pain and suffering. The Court made an order for the amount of pecuniary losses already agreed together with the past losses claimed as those were attributable to and caused by the assault. The Court took into account the psychological assessment, prognosis and impact of the subject assault on the degenerative changes on the applicant's back and the likely impact on the applicant's physical and mental well-being due to the subject injury while fixing the quantum of compensation.
The Applicant was born on the 17th September, 1974, is married and resides with his wife Siobhan and their three young children in Middleton County Cork. On the 22nd of October 2010, he was authorised to bring these proceedings pursuant to the Garda Síochána (Compensation) Acts, 1941 and 1945, (the Acts) in respect of personal injuries and pecuniary loss arising as a result of an assault which occurred on the 23rd August, 2008.
The Applicant and Garda Orla Kenneally were on duty in a patrol car attached to Togher Garda Station, Cork. They received a call to investigate the theft of alcohol from a local supermarket. The robbery had been recorded by a CCTV camera on the premises. The officers went to the store and viewed the CCTV footage. Several youths were seen to be involved, one of whom was identified by the Applicant in Court as G.M. The Applicant knew this individual from encounters he had had with him through his involvement in juvenile community work. The officers left the store and went in search of the culprits. Within a short time they encountered a group of youths, including G.M., walking along a footpath in the vicinity of the supermarket.
Both officers got out of the patrol car and approached the youths; G.M. was noticeably intoxicated. It transpired he had consumed the contents of a bottle of vodka stolen from the supermarket and had also taken some ecstasy tablets. As the officer's approached he became verbally abusive and adopted an aggressive and threatening attitude. The officers decided to arrest him under the Public Order Act, partly for his own safety. He resisted arrest.
Garda Kenneally and the Applicant managed to get the prisoner onto the ground where they eventually managed to handcuff him after a struggle. He was put into the back of the patrol car where he continued to be verbally abusive and aggressive, kicking at the door and the uprights of the front seats. G.M. was described by the Applicant as the most violent individual he had ever had to deal with in the course of his policing career.
Concerned for the safety of his colleague Garda and although he was the official driver, the Applicant decided he should accompany the prisoner in the back of the patrol car on the journey back to the station. The assault occurred when he attempted to sit into the back seat of the car; as he did so the prisoner kicked out and struck him forcibly in the back.
That the assailant acted maliciously and that the Applicant sustained an injury and pecuniary loss as a result of the assault was accepted by the Respondent, however, the nature, extent and causation of the injuries and loss was in controversy and hotly disputed. Pending the judgement of the Court and strictly without prejudice to the matters in issue between them, the Respondent agreed, on certain terms, to pay the Applicant €125,000.
On any view of the evidence, during the decade which followed the assault there was a most serious and significant deterioration in the Applicant's physical and mental capacity to function as a police officer, a deterioration which ultimately led him to conclude that he could no longer continue serve in any position. With the support and on the advice of his treating physicians he applied for retirement on health grounds. Although that application was unsuccessful, by the time the hearing came to an end it was fairly accepted on all sides that the Applicant's career in policing was over and that whatever the future held for him, leaving the force was in his best interests. Absent retirement or discharge on health grounds, he decided to resign at the conclusion of the litigation.
Quite apart altogether from his claim for general compensation, the Applicant mounted a substantial claim for pecuniary losses totalling approximately €1,472, 557.00 with which the Respondent took issue.
The Court made an order that the grounds of Defence should be particularised in order to fully identify and crystallise the issues between the parties. On the 7th October 2015, the Chief State Solicitor wrote to the Applicant's setting out particulars of the defence; the full text of the letter follows:
'Dear Sirs,
Take notice that grounds of defence are set out as follows:
1. It is accepted that the incident occurred on or about the 23rd August, 2005.
2. Malice is accepted.
3. With regard to the Applicant's alleged physical injuries sustained in the incident on or about the 23rd August, 2005, (sic) opinion of the independent medical expert engaged at the request of the respondent is that
(a) The Applicant sustained musculoskeletal soft tissue contusion and strain injuries to his lower back and apparent aggravation of underlying existent degenerative and post surgical condition of the lumbar spine of his lower back. The injury apparently caused some soft tissue contusion and strain injury and strain induced exacerbation of the pre-existing underlying degenerative condition and post-surgical condition of the lumbar region of the lower back;
(b) The apparent musculoskeletal contusion and strain injuries the Applicant sustained to his lower back apparently precipitated symptoms due to injury induced exacerbation of the underlying degenerative condition of the lumbar spine of his lower back, but did not cause or substantially accelerate the progress and deterioration of the pre-existing degenerative conditions of the lumbar spine of the Applicant's lower back. The subsequent and ongoing symptoms and disabilities the Applicant suffered over many years were due to the progression and deterioration of the degenerative conditions affecting the lumbar spine of the Applicant's lower back, and were not solely, predominantly or substantially due to muscular skeletal tissue contusion and strain injuries of the apparent nature and degree that he apparently sustained to the lumbar spine of his lower back (sic) incident on or about 23rd August, 2005.
In addition to the reports of the independent medical consultants who examined the Applicant at the request of the Chief Medical Officer, the Respondent will rely on the reports furnished by the Applicant's medical advisors.
4. With regard to alleged psychiatric/psychological injury, (sic) independent consultant psychiatrist who examined the Applicant at the request of the respondent found that
(a) Arising out of the incident on or about 23rd August, 2005 the Applicant reported experiencing symptoms of pain and immobility.
(b) The incident of the 23rd August, 2005 itself could not be considered emotionally traumatic.
(c) The Applicant's emotional reaction to physical symptoms included feelings of frustration, irritability, low mood, and reduced self esteem. These psychological symptoms were indirectly related to the incident which occurred on or about the 23rd August, 2005 and these psychological symptoms reflect aspects of the Applicant's personality and coping mechanisms. On review the Applicant continued to feel frustration, anger and lack of trust. The Applicant's frustration was compounded by his belief that discharge from An Garda Síochána on medical grounds was imminent;
(d) The Applicant appeared to have some difficulty in accepting that he required a more intensive psychological approach in dealing with this (sic) physical symptoms;
(e) The Applicant found his limited garda duties at the time of examination and report demeaning, however there was no evidence that he was mentally incapable of carrying out these duties;
(f) The Applicant did not suffer from any mental illness and in particular, did not suffer from post traumatic stress disorder arising out of or as a consequence of the incident of the 23rd August, 2005.
No serious psychological sequelae have been sustained as a result of the said incident.
In addition to the report of the independent medical consultants who examined the Applicant at the request of the Chief Medical Officer, the Respondent would rely on the reports furnished by the applicant's medical advisors.
5. It is denied that the Applicant's other complaints including pain management issues, or neurological condition or sleep problems/insomnia are caused by the incident the subject matter of these proceedings.
6. Apart...
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